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80 Cards in this Set
- Front
- Back
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State the 2nd Amendment
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A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
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What invocation serves as the opening for each session of the Supreme Court?
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“God save the United States and this Honorable Court”
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Explain whether prayers as part of an official public school graduation ceremony violate the Establishment Clause.
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Yes, because they subject attending school children to psychological coercion
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Are Sunday closing laws constitutional?
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Yes, so long as there is a secular purpose of an uniform day of rest.
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What purported view of the Framers toward the Establishment Clause does Justice Thomas want the Court to re-adopt?
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The framers did not intend for the Establishment Clause to apply to the states. Thomas believes that States should not be treated the same as the federal government in establishment clause evaluations, states should be given more leeway to touch on religious matters.
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What was the holding of McCreary County v. ACLU of Kentucky (2005)?
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10 Commandments not okay in a courtroom. Breyer said the display was too religious.
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What was the holding of Van Orden v. Perry (2005)?
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The display of the monument does not violate the Establishment Clause of the First Amendment because they are passive and traditional display.
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What justice in what case wrote the following: [In] holding that the Establishment Clause prohibits invocations and benedictions at public school graduation ceremonies, the Court —with nary a mention that it is doing so — lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological [coercion]."?"
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Scalia in Lee v. Weismsan
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What is the anticoercion principle?
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The state is not to use methods that would coerce students to participate in religious events.
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What is the neutrality principle?
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The formal criteria for selecting students and schools to participate in the program cannot be based on religion, nor can a program skew the choice toward religious schools by, say, providing more money for students who select religious schools
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Why did the Court in Lynch v. Donnelly (1984) rule as constitutional a town's display of the Infant Jesus, Mary and Joseph, angels, shepherds, and kings?
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Because the town was using the display as a secular symbol of Christmas, and not as a means of promoting religion. There wre enough reindeer present, to make it non-secular.
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Explain whether a school system may allow public high school students to vote to have a student of their choosing “ solemnize” high school football games.
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No, because the making the vote a school sanctioned item, it was as if the school itself was endorsing a religion.
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Why was the school choice program at issue in Zelman v. Simmons-Harris (2002) deemed constitutional?
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It was deemed entirely neutral with respect to religion, and the aid was delivered to private schools by true private choice rather than directly by the government.
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What justice in what case wrote the following: Frederick Douglass once said that 'education means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light of truth, the light by which men can only be made free.' Today many of our inner-city public schools deny emancipation to urban minority students. Despite this Court's observation nearly 50 years ago in Brown v. Board of Education, that 'it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education,' urban children have been forced into a system that continually fails them. These cases present an example of such failures."?"
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Justice Thomas’ concurrence in Zelman v. Simmons-Harris
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Explain the significance of Justice Breyer’s concurrence in Van Orden v. Perry.
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He is a known liberal that in this case sided with the conservative block in deciding that the use of the 10 commandments in courthouses and governmental displays was permissible.
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What two issues does the Court confront in Good News Club v. Milford Central School (2001)?
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1. Whether the school violated the free speech rights of the GNC when it excluded the club from meeting after hours, and
2. whether that violation is justified by the school’s concern that permitting the club’s activities would violate the Establishment Clause. |
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Explain the significance of the distinction between government programs that provide aid directly to religious schools and programs that provide aid to religious schools through the private choices of aid recipients.
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A program that allows, but does not mandate, aid to religious schools through private choice avoids Establishment Clause problems that would arise if the government funded to institutions directly.
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Name each justice who presently serves on the Supreme Court.
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Kennedy, Scalia, Alito, Roberts, Ginsberg, Thomas, Souter, Stevens, Breyer.
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What is strict scrutiny?
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The standard applied to suspect classifications (such as race) in equal-protection analysis and to fundamental rights (such as voting rights) in due-process analysis. Under strict scrutiny the state must establish that it has a compelling interest that justifies the necessities of the law in question. Black’s Law Dictionary.
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What is intermediate scrutiny?
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A standard lying between the extremes of rational-basis review and strict scrutiny. Under the standard, if a statute contains a quasi-suspect classification (such as gender), the classification must be related to the achievement of an important governmental objective. Emphasis added. Black’s Law Dictionary.
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What is minimal scrutiny?
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Also rational-basis test. A principle whereby a court will uphold a law as valid under the Equal Protection Clause or Due Process Clause if it bears a reasonable relationship to the attainment of some legitimate governmental objective.
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Who is the only person to serve as President and as a justice on the Supreme Court?
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William Howard Taft
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Which justice presently on the Court is the most likely to be the swing vote in constitutional cases?
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Kennedy
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Describe the difference between a facial challenge to a statute and an as-applied challenge.
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A facial challenge claims that a statute is unconstitutional on its face – that is it always operates unconstitutionally. The result is the entire statute is voided. As-applied challenges a law that is constitutional on its face, but unconstitutional as it is applied to the facts of a particular case or party. The result would be only the unconstitutional part of the statute is voided.
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What is stare decisis?
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Latin for “let the decision stand”. It is the judicial practice of basing the decisions in cases on similar cases already decided.
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What are a state's police powers?
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The power of government to make laws that are necessary and proper to preserve public security, order, health, morality and justice.
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What must the government show to have a law upheld under the strict scrutiny standard of review?
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Under strict scrutiny the state must establish that it has a compelling interest that justifies the necessities of the law in question. Black’s Law Dictionary.
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What must the government show to have a law upheld under the intermediate scrutiny standard of review?
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Under the standard, if a statute contains a quasi-suspect classification (such as gender), the classification must be related to the achievement of an important governmental objective. Emphasis added. Black’s Law Dictionary.
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What must the government show to have a law upheld under the rational basis standard of review?
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A court will uphold a law as valid under the Equal Protection Clause or Due Process Clause if it bears a reasonable relationship to the attainment of some legitimate governmental objective.
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Explain Justice Scalia's view on judicial use of legislative history.
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He’s a contextualist. You look at the text of the law, not motives or history.
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What does it mean for a justice to concur in the judgment only?
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The justice agrees with the judgment of the court, but not how the majority reached that judgment.
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What is a plurality opinion?
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An opinion where there is not enough justices to reach a majority, but receiving more votes than any other opinion.
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Who currently serves as Chief Justice of the Supreme Court?
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John Roberts
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Who are the four most solidly liberal justices presently on the Supreme Court?
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Souter, Ginsburg, Breyer, and Stevens.
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Who are the four most solidly conservative justices presently on the Supreme Court?
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Thomas, Scalia, Alito, and Roberts.
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Explain the basis for the result in the Georgia case of Parham v. J.R. (1979).
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Court upheld GA’s practice of not requiring formal adversary hearings before parents commit their children to public mental institutions. The informal admissions procedure is valid because parents have a traditional interest and responsibility in the upbringing of their children and recognize the family as a unit with parental authority over minor children. A State has a right to permit family decision making for their children.
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Explain the result of Fisher v. University of Texas at Austin (2013).
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Kennedy argued that per the Grutter v. Bollinger ruling, the burden of evidence primarily lies with the university "to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity."
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Explain the mistake made by the District Court and the Court of Appeals in Fisher v. University of Texas at Austin (2013).
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They did not apply the correct review – strict scrutiny which was necessary because race is a suspect class under strict scrutiny.
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What is Justice Marshall's vision of the Equal Protection Clause?
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Justice Thurgood Marshall looked to the Equal Protection Clause as a means of correcting the ills of a separated America by providing both constitutional and unspecified rights to minorities. His belief in the Equal Protection Clause also prompted him to argue for a variable scale that would allow the court to examine the need of a suspect class before deeming the class in question to be non-suspect.
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Explain whether United States v. Windsor (2013) recognizes a constitutional right for couples of the same sex to marry.
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No, Windsor did not recognize a constitutional right for same sex couples to marry. Section 3 of the Defense of Marriage Act, defined marriageat as a union between one man and one woman as husband and wife at the federal level. Windsor held that this was unconstitutional under the 5th DPC's equal Protection, given NY's recognition of same sex unions when Thea Spire died and her estate was not taxed to Edith Windsor under NY law, but it was taxed over $300K under DOMA. Windsor did establish that the federal government must recognize same-sex marriages that are legal in a place of celebration. The judgment of the Second Circuit is affirmed.
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Explain whether Congress’ attempt to criminalize the commercial creation, sale, or use of crush videos depicting animal torture is constitutional.
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No. The court concluded that the law was facially invalid because it applied to any killing of an animal no matter the reason which meant hunting videos would be included. The attempt wasn’t limited to only crush videos.
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Explain why the law in United States v. Stevens (2010) was facially invalid.
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The law tracked the Miller Test, but the law was substantially overbroad in prohibiting animal crush videos. So animal crush videos are allowed under the 1st A.
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Explain the majority’s opinion in Brown v. Entertainment Merchants Association (2011) on the issue of whether a state can ban the sale or rental of “violent video games” to minors.
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A state cannot ban the sale or rental of “violent video games” to minors because it imposes a restriction on the content of protected speech which is invalid which can only be justified if a compelling govt interest can be served. It is rare that a regulation restricting speech because of its content will ever be permissible.
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Explain why Justice Alito and Chief Justice Roberts disagree with the majority opinion in Brown v. Entertainment Merchants Association (2011).
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They both disagree with the approach taken. They feel that the emerging characteristics of video games should be considered because the violence is astounding. “Troubled teens could experience in an extraordinarily personal and vivid way what it would be like to carry out unspeakable acts of violence." Violent games are different than reading violent books.
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Explain the basis for Justice Thomas’ dissent in Brown v. Entertainment Merchants Association (2011).
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Freedom of speech does not include a right to speak to minors without going through the minor’s parents or guardians. Founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children.
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Explain the basis for Justice Breyer’s dissent in Brown v. Entertainment Merchants Association (2011).
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He believes the law is constitutional to ban selling violent video games to minors because the industry itself tells us it wants to keep out of the hands of those under 17 gruesomely violent video games. The statute is compelling because it consists of both authority in their own household to direct the rearing of their children and the state’s independent interest in the well-being of its youth.
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Explain whether the government may compel the membership list of a political organization.
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In NAACP v. Alabama, the court ruled in order to determine whether the members were required to reveal the names and addresses of it s members, Alabama’s demand was a “substantial restraint” upon the exercise by NAACP’s members of their right to freedom of association. Alabama had to prove they had a compelling interest to require disclosure. In this case, their interest was not compelling and it could be accomplished in a far less restrictive fashion than FORCED DISCLOSURE. the first amend is violated by forced disclosure of info that substantially interferes with associational or expression rights, without sufficient justification for disclosure.
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What justice in what case wrote the following: “The censorship we now confront is vast in its reach…. By suppressing the speech of manifold corporations, both for-profit and nonprofit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of ‘destroying the liberty’ of some factions is ‘worse than the disease.’ Factions should be checked by permitting them all to speak, and by entrusting the people to judge what is true and what is false…. When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”?
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Justice Kennedy , Opinion of the Court, in Citizens United.
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Describe the First Amendment stance on compelled speech.
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The right NOT to express ideas is at its strongest when the govt seeks to compel the expression of a belief or point of view. Govt compulsion to speak may be justified IF the govt can prove that the compulsion is the “least restrictive means” to accomplish a compelling govt interest that is unrelated to the forced expression of ideas.
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Explain the basis for the Court’s decision in Roberts v. United States Jaycees (1984).
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The state statute does not violate the freedom of association rights of the Respondent because they are a large corporation and is not selective of their participants. Jaycees already allows women as associate members so it doesn’t represent an overly burdensome change.
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Why does Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (2006) come out differently than Boy Scouts of America v. Dale (2000)?
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The difference in the outcomes is based on the potential for the organization to be seen as adopting the message of the group they are associating with. In Rumsfeld allowing the ROTC on campus was not likely to lead a person to think the university was saying the University thought the military was good. IN contrast, the Boy Scouts had a message of being "morally straight" and other concepts that if forced to allow homosexuals to participate, would lead the average person to think the BSA believed homosexuality was good.
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Explain whether a state may constitutionally mandate that the Boy Scouts of America accept homosexuals as members.
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Although NJ had a compelling interest in eliminating discrimination against sexual minorities, the method of accomplishing the objective by forcible inclusion of gay scouts and scoutmasters, was a serious burden on the Scout’s freedom of expressive association. The practice of using adults to inculcate its value system to youngsters was expressive activity sufficient to make the Scouts an expressive association.
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What did the Court hold in Caperton v. A.T. Massey Coal Co. (2009)?
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A state judge acts unconstitutionally when he serves on a case involving the financial interests of one of his major election campaign backers. The Due Process Clause makes it necessary that the trial should be fair and impartial
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Describe whether the First Amendment permits a state to prohibit candidates for judicial election from announcing their views on disputed legal and political issues.
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Republican Party of Minnesota v. White: Scalia states that the announce clause/announce rule is unconstitutional. Prohibiting candidates for judicial election from announcing their views on disputed legal and political views violates the First Amendment.
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Explain whether a public school system can require school children to salute the American flag.
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NO. West Virginia State Board of Educatiom v. Barnette, struck down the state law requiring all public school students to salute and pledge allegiance to the flag of the US. The Court stated that only the most “immediate and urgent grounds” could justify an “involuntary affirmation…of a belief…
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What are asymmetrical contribution limits and are they constitutional?
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No. the asymmetry imposed a substantial burden on the exercise of the 1st Amendment right to use personal funds for campaign speech. The Asymmetrical contribution limits did nothing to prevent corruption or the appearance of corruption.
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What is a blanket primary?
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“all persons entitled to vote, including those not affiliated with any political party, shall have the right to vote… for any candidate regardless of the candidate’s political affiliation.”
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Explain whether a state may constitutional require an individual to participate in the dissemination of an ideological message by displaying it on private property in a manner and for the express purpose that it be observed and read by the public.
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States could not constitutionally require citizens to display a state motto that went against an individual's morality upon their vehicle license plates.
The rationale is there is a risk that the speech will be attributable to the property owner. |
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Discuss the constitutionality of government attempts to limit the amount of money a self-financed candidate may spend in an election contest.
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Govts may NOT limit the amount of money a political candidate spends from his or her own funds and may NOT limit the amount of money that either individuals or organizations independent of a political candidate may spend on behalf of a candidate. BUT, govts MAY restrict the total expenditures of a political candidate as a condition to receipt of public funds.
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What justice in what case wrote the following: “In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process.”?
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Justice Stevens in the dissent in Citizens United V. Federal Election Comm’n (2010) where CU wanted to air an anti-Hillary video durign the campaign.
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What did Austin v. Michigan Chamber of Commerce (1990) hold?
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This case considers whether Michigan’s restrictions on corporate political expenditures can be constitutionally applied to the Appellee. The court held that the statutory scheme provided a means for the Appellee to express itself politically and thus there was no abrogation of Appellee’s rights in requiring it to follow the statute.
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Explain the signifigance of justice Kennedy's concurrence in Republican Party of Minnesota v. White (2002).
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Austin ruled that Michigan's law prohibiting corporations from using general treasury money to make independent expenditures to support or oppose candidates in elections, did not violate the 1A & 14A. Austin is overruled now by Citizen's United. Buckley's "money is speech" and Bellotti state that the govt. may not suppress political speech on the basis of the speaker’s corporate identity.
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What two fallacious propositions does Justice Scalia identify in dissent in McConnell v. Federal Election Commission (2003)?
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Money is not speech.
Pooling Money is not speech. Speech by Corporations can be abridged. |
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Describe the conflicting lines of precedent facing the Court in Citizens United v. Federal Election Commission (2010).
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A pre-Austin line that forbade restrictions on political speech by corporations; and a post-Austin line that permits restrictions. Austin found a compelling govt interest in preventing “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporations political ideas." Citizens United overturned Austin allowing corporations the ability to spend unlimited amounts of money in campaigns.
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What was the fatal problem to Proposition 198 in California Democratic Party v. Jones (2000)?
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It forces Petitioners to adulterate their candidates selection process – the basic function of a political party – by opening it up to persons wholly unaffiliated with the party. Such forced association has the likely outcome – indeed – the INTENDED outcome – of changing the parties’ message. 198 is unconstitutional.
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What is the rule of four in the context of the Supreme Court’s decision as to whether to grant certiorari in order to hear a particular case?
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4 of the 9 justices must agree to hear a case.
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Concisely and cogently explain the decision studied this semester with which you disagree the most, with the caveat that the decision you choose must still be good law.
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Citizens United (2010). Corporations are not people for purposes of the 1st and 14th A because to give a corporation protected political speach in the form of money-is-speech, invites corruption into the political process. And where is the Court drawing the line if those personal rights, then why not the rest of the 1st, and allow corporations to practice religious beliefs and extend those to their employee's health care plans such as Hobby Lobby which just got argued this summer. Corporations get to now buy influence in elections, not directly through the candidate's campaign as that is still prohibited, but indirectly be creating TV compaign-style ads, movies, planted opinions, and media groups, in ways that no single living person can and they can do so anonomously
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Explain whether stare decisis should apply with more force in constitutional or statutory cases.
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Stare decisis should apply with more force to statutory cases than constitutional cases because SCOTUS needs the flexibility to overturn bad law that has stare decisis on outdated public policy, drastically changed conditions, or to promote justice. If SCOTUS was forced to strictly follow stare decisis, we would still have Plessy v Ferguson, and Bowers v Hardwick, etc. In contrast, there are many challenges to statutory provisions and they should be handled similarly to the ones before them until SCOTUS overturnes the law, or Congress repeals it.
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Explain the difference between viewpoint-based and content-based free speech restrictions.
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Content-based regulations are based on the subject matter of speech. Viewpoint-based speech restrictions are based upon the position the speaker takes.
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Explain whether Austin v. Michigan Chamber of Commerce (1990) is still good law.
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Austin ruled that Michigan's law prohibiting corporations from using general treasury money to make independent expenditures to support or oppose candidates in elections, did not violate the 1A & 14A. Austin is overruled now by Citizen's United. Buckley's "money is speech" and Bellotti state that the govt. may not suppress political speech on the basis of the speaker’s corporate identity.
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What are the two competing viewpoints about the meaning of the 2nd Amendment?
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That the right to bear arms viewpoint 1 is collective right to maintain a militia for individuals actively serving in that militia, or viewpoint 2 is a private right of an individual not connected with militias at all. There is actually a third line that thinks the right is an individual right and a collective right where individuals connected with militias can have firearms. Viewpoint 2 is the current Supreme Court view.
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Explain the importance of McDonald v. City of Chicago (2010).
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MvDonald extended the Heller decision to the states; 2A is an individual liberty.
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What unique position does Justice Thomas assert in McDonald v. City of Chicago (2010).
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JUSTICE THOMAS agreed that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms , but under the Privilages and Immunities Clause.
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Explain what level of review the Court applies to assess the constitutionality of gun regulations.
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strict
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What does the Court order the District of Columbia to do following District of Columbia v. Heller (2008)?
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Grant Heller a license to have a handgun in his residence for self protection.
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What proposition does United States v. Miller (1939) stand for?
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“Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.” Both sides of gun control say this case supports their side: efficiency of guns in modern militia v. no challenges to gun control. Miller was cited in Heller.
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How many justices recognized that there was an individual right to bear arms in District of Columbia v. Heller (2008)?
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5
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Explain whether equal protection challenges to non-racial gerrymandering are justiciable.
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It appears that they are not. In Vieth, a the plurality’s position was that they are non-justiciable as political questions (no judicially discernable and manageable standards for adjunction)
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Why did the Court refuse to rule the Child Online Protection Act (COPA) unconstitutional in Ashcroft v. ACLU (2002)?
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The court concluded that the COPA’s use of contemporary community standards did not, by itself, render the statute substantially overbroad, and that the scope of the law was narrowed by the ‘prurient interest to minors’ and ‘lack of serious value to minors’ requirements.
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Explain the significance of Justice Kennedy’s concurrence in Republican Party of Minnesota v. White (2002).
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Scalia says the announce rule is unconstitutional. Kennedy concurs and states that content based speech restrictions should be invalidated. The political speech of candidates is at the heart of the 1st amendment. To restrict is beyond the power of govt to impose.
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