ConLaw PMT Flashcards
(382 cards)
1
Q
“A state may not enact a statute that prevents marriages between persons solely on the basis of racial classification without violating the Equal Protection and Due Process Clauses of the Fourteenth Amendment.”
A
Loving v. VA
2
Q
What clauses in Loving v. Virginia?
A
EP & DP of 14A
3
Q
In Loving v. VA, Court said that such race-based classifications subject to what scrutiny?
A
Strict
4
Q
Can the [right to marry] be denied to persons who are behind on child support?
A
No. Zablocki v. Redhail. Const. right which can only be regulated when narrowly tailored to a legitimate purpose.
5
Q
T/F) Right to marry is a fundamental right.
If true, restrictions on this subject to what review?
A
[True]
1. Zoblacki
2. Loving v. Virginia
Strict scrutiny.
A. Compelling gov. int.
B. Least rest. means tailored narrowly thereto.
6
Q
“The right of related family members to live together is fundamental and protected by the Due Process Clause and necessarily encompasses a broader definition of “family” than just members of the nuclear family.”
A
Moore v. City of East Cleavland
7
Q
This case showed that there is a right to live together beyond the “nuclear” family.
A
Moore v. City of East Cleveland
8
Q
Under _____, there are fundamental parental rights, including right to exclude grandparents from visitation after dad died.
A
Troxel
9
Q
Is Bowers v. Hardwick good law?
A
No, overturned by Lawrence v. Texas
10
Q
Is there a fundmental right to sexual intimacy?
A
Yes, lawrence v. Texas
11
Q
“Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, states must issue marriage licenses and recognize lawful out-of-state marriages for same-sex couples.”
A
Obergefell v. Hodges
12
Q
T/F) A competent person has constitutionally protected liberty interest under the 14A to refuse unwanted medical treatment.
What about incompetent persons?
A
- True. [Cruzan]
- Guardian makes decision BUT court must balance liberty interest of incompetent against state interest in preserving life.
13
Q
In Cruzan, SC said courts must balance what regarding incompetent persons?
A
- Incompetent persons interest [made by Guardian]
- Against state’s interest in preserving life
14
Q
T/F) There is no right to physician assisted suicide.
A
True, CJ Rehnquist [Glucksberg]
15
Q
In Glucksberg, why no right to suicide?
A
Not deeply rooted…
16
Q
What right is “assumed” according to Rehnquist?
A
Right to refuse medical treatment
17
Q
Accepted “unwritten” rights so far?
A
- Marriage
- Sexual intimacy
- Contraception
- Parental
- Refuse med. treatment
18
Q
Exam argument for recognition of previously unwritten liberty right?
A
- Fundamental to nation’s scheme of ordered liberty; or
- Deeply rooted in nation’s history & traditions.
Alternate: Closely related to human dignity or autonomy. [Obergefell]
19
Q
Pumping stomach found not constitutional because….
A
…. shocked the conscious of “english speaking people.”
20
Q
Is it true that gov. may never distinguish between persons or risk violating EP clause?
If no, example?
A
No. Children have free access to education but not adults.
Social security for old but not young people.
21
Q
How did the Supreme Court justify reading the EP clause so that it binds the FED gov. to the text of Constitution?
Bonus: Case?
A
- DP clause of the 5A. [Reverse Incorporation]
- Boiling v. Sharpe
22
Q
“Racial segregation of public schools in the District of Columbia violates the Due Process Clause of the Fifth Amendment.”
A
Boiling v. Sharpe - Unique because it applied EP to the government through reverse incorporation of the 5A.
23
Q
_____ _______: refers to the legal doctrine where the Supreme Court applies constitutional provisions, originally intended to limit state governments, to the federal government through the Due Process Clause of the Fifth Amendment.
A
Reverse Incorporation
24
Q
According to the [text] of the Constitution, who is bound to respect EP?
A
The States. Applies to FED through doctrine of [Reverse Incorporation in Boiling v. Sharpe.
25
Which landmark case, a companion to Brown v. Bd of Education, demonstrated applicability of EP to FED gov.?
Boiling v. Sharpe, RI of 5A.
26
SI =
RI =
Dp 14A
DP 5A
27
______ review: the most lenient form of judicial scrutiny, applies to cases involving laws or government actions that do not involve fundamental rights or suspect classifications.
Rational basis review. Highly deferential to gov.
28
Under this, a law is presumed constitutional if it has a legitimate government interest and the means chosen are rationally related to that interest.
Allows use of any conceivable means for the gov., even if one that is only hypothetical.
RBR
29
[T/F] RBR does not need one that persons agree with, it doesn’t even need to be the one the gov. actually relied on… it can be something attorney makes up after the fact for the gov. as his client.
True
30
T/F) Strict scrutiny of governmental action burdening fundamental rights was undertaken by Supreme Court majorities in McDonald v. City of Chicago, Lawrence v. Texas, or Obergefell v. Hodges.
False
31
Strict scrutiny, when used, is applied to _____ rights infringed on by the gov actors.
Fundamental
32
Test for SS? [The most demanding standard of review]
Used for race based classifications & invidious discrimination.
1. Serve compelling gov. interest
2. Be narrowly tailored / least restrictive means
33
T/F) SS of gov. actions is commanded by the supremacy clause.
False
34
According to Justice Scalia, in order to be judicially enforceable today, rights claims asserted under the Due Process Clause of the Fourteenth Amendment.....
Must have been recognized in 1868 when 14A ratified.
1. Fundamental to nation's scheme of ordered liberty.
2. Deeply rooted in nation's history or traditions.
35
Currently valid Supreme Court caselaw recognizes an unwritten constitutional right to
1. Governmental protection.
2. Abortion.
3. Liberty of contract.
4. Sexual intimacy.
Sexual intimacy - Laurence v. Texas
36
Currently valid Supreme Court caselaw
1. Criminalizes abortion.
2. Assumes, without deciding, that there is an unwritten constitutional right to affirmatively refuse unwanted medical treatment.
3. Protects a constitutional right to suicide.
4. Limits the right to marry to opposite sex couples.
5. Recognizes a substantive due process right of non-custodial parents and grandparents to visitation.
Assumes unwritten right to refuse unwanted medical attention. [Cruzan]
37
In satisfying RBR, the government may introduce hypothetical purposes not actually considered by the legislature in order to convince a court to uphold a statute. [T/F]
True
38
The SC upheld a NY ordinance that prohibited advertising on vehicles unless it related to owner's business... ruling there was rational relation to legitimate gov. interest.
Railway Express v. NY
39
Railway Express reinforces the idea that laws may be _______, meaning, they do not have to address all possible harms to survive rational basis scrutiny.
Underinclusive
40
This case is the root of substantive DP.
Dredd Scott
41
“People of African descent brought to the United States and held as slaves, as well as their descendants (either slave or free), are not considered citizens of the United States and are not entitled to the protections and rights of the Constitution.”
Dredd Scott
42
1. What part of Dredd Scott did the 13A overturn?
2. What part of Dredd Scott does 14A overturn?
1. Slavery
2. Lack of diversity J. "All persons born or naturalize here are citizens..."
43
This case upheld the internment of Japanese Americans during WWII.
Korematsu v. US
44
This 1942 case established that racial classifications by the government will be subject to strict scrutiny.
Korematsu v. US
45
SS test?
1. Compelling gov. interest
2. Least restrictive means tailored thereto
46
Who upheld the internment order in Korematsu? What SCJ?
Black
47
[T/F] In context of wartime emergency, SC has been very receptive to arguments premised on gov. necessity. And typically, as crisis subsides, or even b4 end of war, courts become more willing to constitutionally police limits of executive authority.
True -- Korematsu v. US
48
Has Korematsu been overturned?
Disowned? Yes. Overturned? No.
49
Military necessity is necessity. If they say detention regime is necessary, it may well be that civilian court can’t stop it, but don’t ask us to call this policy constitutional. Refuses to give constitutional license but accepts that military has power to violate the constitution itself.
Who said it?
CJ Jackson
50
This case denied citizenship to black americans and was later overturned by 13A and 14A which (1) abolished slavery and (2) granted citizenship to all "persons" born in the US.
Dredd Scott v. Sandford [1857]
51
This case (1) upheld Japanese internment, (2) demonstrated use of "SS" standard for racial restrictions, (3) serves as reminder of wartime civil rights violations.
Korematsu v. US
52
T/F) Korematsu has been officially overturned.
False.
53
What triggers strict scrutiny today?
1. Laws involving "suspect" classifications
2. Laws that infringe on "fundamental" rights
54
1. When "SS" applies, what test does that entail?
2. When does SS apply?
1. Compelling gov. interest
A. Least restrictive means narrowly tailored thereto
2. Suspect classifications & fundamental rights
55
SS has its roots in ____ and resurfaces in ____
1. Carolene products FN 4
2. Korematsu v. US
56
This case established the principle that laws applied in a discriminatory manner violate the EP clause even if they appear "neutral" on their face.
Yick Wo. v. Hopkins
57
This case was the first case to recognize EP for non-citizens. IE: "Natural persons / human beings."
Yick Wo v. Hopkins
58
This case involved San Fran. ordinance requiring laundries in wooden buildings to get special permits. All but 1 permit of Chinese applicants denied.
Yick Wo v. Hopkins
59
Does a facially neutral law that is applied in a discriminatory manner on the basis of race or nationality violate the Equal Protection Clause of the Fourteenth Amendment?
Yes. Yick Wo v. Hopkins... But, later cases like WA v. Davis show there must also be a discriminatory intent.
60
This case involved city of Tuskegee, AL which redrew electoral district into irregular 28 sided shape, excluding nearly all black voters.
Gomillion v. Lightfoot
61
This case reinforced 15A rights. The ruling emphasized that states cannot use districting laws to deny black citizens the right to vote.
Gomillion v. Lightfoot
62
This case expounded on Yick Wo v. Hopkins in that, a neutral law applied in discriminatory manner must likewise have been supported by discriminatory INTENT.
WA v. Davis
63
T/F) A racially neutral government act that disproportionately impacts one race over another does not violate equal protection if there is no discriminatory intent.
True. WA v. Davis, expounding on Yick Wo v. Hopkins
64
ROL: "Equal Protection Clause claims may be brought by a “class of one” where the individual has been intentionally treated differently than others similarly situated and there is no rational basis for the difference in treatment.”
Village of WIllowbrook v. Olech
65
This doctrine established that person does not need to be part of specific protected class, but may bring action as [class of one] for a EP claim when they have been intentionally treated differently without a rational basis.
Village of Willowbrook v. Olech
66
"The Equal Protection Clause can support a claim by a “class of one.” If the plaintiff alleges that he or she has been intentionally treated differently from other similarly situated individuals and there is no reason for that difference, this can be sufficient to bring relief."
Village of Willowbrook v. Olech
67
This case upheld racial segregation under the doctrine of "separate but equal."
Plessy v. Ferguson
68
Mr. Plessy, 1/8th black, sat in whites only car. He argued the law violated EP of 14A.
Plessy v. Ferguson
69
Plessy argued the law violated what?
EP of 14A
70
What case overturned Plessey v. Ferguson?
Brown v. Bd of Education
71
Which congress drafted the 14A?
39th congress in 1867
72
In 1867, the ___ congress drafted 14A.
39th congress
73
T/F) Even though the 39th congress drafted 14A, they also established a segregated public school system.
True, big problem for those that argue correct interp. of 14A does not tolerate state sponsored education.
74
This case is important because it chipped away at segregation in Missouri and laid the groundwork for the later Brown v. Bd. of Educ.
Missouri el rel Gaines v. Canada
75
A black student denied admission to law school in Missouri. He sued under EP of 14A and wins.
Missouri el rel Gaines v. Canada
76
What did CJ Warren think about Originalism in Brown v. Bd of Education.
Meaningless to him
77
ROL: "The Equal Protection Clause of the Fourteenth Amendment prohibits prosecutors from using peremptory challenges to remove prospective jurors based on their race."
Batson v. Kentucky "Batson challenges"
78
T/F) As Supreme Court doctrine stands today, peremptory challenges
1. Are permissible only if they satisfy strict judicial scrutiny.
False
79
T/F) Peremptory challenges only permissible in criminal law.
False
80
T/F) if the defendant makes a prima facie showing of discrimination during the peremptory challenge, the prosecution may be compelled to articulate a neutral explanation for why it challenges a particular venireman.
True. [Batson v. Kentucky]
81
Alleging EP violation by Federal government vs state government... what clause protects for each?
1. Fed = [R.I.] DP Cl 5A
2. State = [S.I.] DP CL 14A
82
Name of the south carolina case rolled into Brown v. Bd. of Educ.?
Briggs v. Elliott
83
What's unique about Davis v. VA?
The only brown v. Bd case rollup that complied with SC ruling by providing no schooling at all. [Private scholarships still available, wink wink]
84
___ ______ nominated to SC from the governor position of CA by Eisenhower. Prior prosecutor and advocate for Japanese internment. As AG of CA, he had defended segregation in L.A. However, he was also concerned with ability of government to enforce policy on the ground.
Earl Warren
85
T/F) Earl Warren thought that looking to what the framers intended when the 14A was enacted would help.
False.
86
What was a big factor in Earl Warren's analysis?
Cold war ongoing... we will beat the soviets by educating and recruiting from the best and brightest.
87
According to Plessy v. Ferguson, segregated facilities ok so long as what?
They are "separate but equal."
88
According to CJ Warren, why did Plessy v. Ferguson have to go?
Segregation undermines ability of US to hold itself out as the embodiment of truth, justice, the American way. Soviets for example say what a bunch of hypocrites, look at what they do with segregation ++++ to beat the soviets, we need all of our brightest.
89
After Brown, schools ordered to desegregate with all...
... "all deliberate speed"....
90
Classifications propping up white supremacy are...
per se impermissible.
91
ROL: "Strict scrutiny is the appropriate standard of review in an equal-protection challenge to policies involving racial classifications in state prisons."
Johnson v. CA
92
"The California Department of Corrections (defendant) had an unwritten policy of racially segregating prisoners in double cells in reception centers for up to 60 days each time they entered a new correctional facility. Prison administrators claimed the policy was targeted toward preventing violence among racial gangs."
Johnson v. CA
93
T/F) " Previous cases announced the rule that all racial classifications imposed by government must be analyzed by a reviewing court under strict scrutiny. "
True. Johnson v. CA
94
ROL: “Under the Equal Protection Clause of the Fourteenth Amendment, a public university may not discriminate on the basis of race in its admissions policies, even if doing so benefits members of minority races.”
Regents of Univ. of CA v. Bakkee
95
One of a limited number of special jury challenges given to each party before trial. A peremptory challenge results in the exclusion of a potential juror without the need for any reason or explanation - unless the opposing party presents a prima facie argument that this challenge was used to discriminate on the basis of.....
Race, ethnicity, or sex.
96
____ _____ : Allows a limited number of special jury challenges given to each party before trial. Results in exclusion of potential juror without need for explanation.
Peremptory Challenge
97
T/F) Peremptory challenges are permissible during jury selection only in criminal proceedings.
False
98
In the Dredd Scott Decision, what did Chief Justice Taney determine?
The requirements of diversity J were not met.
99
T/F) Chief Justice Taney determined that the Supremacy Clause required that Missouri courts enforce the Missouri Compromise, an Act of Congress passed in 1820 that prohibited slavery in the Wisconsin Territory and all other federal territories located north of Missouri’s southern border with Arkansas.
False
100
T/F) Are not likely to be invalidated on rational basis review.
True
101
When alleging a violation of Equal Protection doctrine by the federal government, the litigant challenging the constitutionality of governmental action should
1. Rely on the Due Process Clause of the Fourteenth Amendment.
2. Rely on the doctrine of Incorporation.
3. Rely on the Enforcement Clause of the Fourteenth Amendment.
4. Rely on the Privileges and Immunities Clause of Article IV.
5. Do none of the above.
5. Do none of the above. [You use 5A EP clause for RI.]
102
T/F) In Yick Wo v. Hopkins, the Supreme Court determined that classifications that are non-discriminatory may nevertheless be enforced in a constitutionally impermissible manner.
True
103
The lovings in Loving v. VA had 2 arguments, what were they?
1. Substantive right to marry
2. EP violation
104
When does "SS" apply?
Suspect classifications based on race.
1. Compelling gov. interest
2. Least restrictve means tailored narrowly thereto
105
Race based classifications are either __ ___ _____ or must pass ___ ____.
1. Per se impermissible
2. SS
106
Here, the Court said that under SS, a compelling gov. purpose might justify race based classifications in some instances [separating prisoners] then remanded to appellate court to decide if sufficiently compelling gov. interest.
Johnson v. CA
107
T/F) Standing purposes: To raise EP challenge for admission decision, you don’t have to prove client would have been actually offered a place. Simply a denial of the opp is enough to bring it.
True. Regents UCA v. Bakkee
108
"Myra ___________ (plaintiff) applied to the Illinois Supreme Court for a license to practice law in the State of Illinois (defendant). Her application included a certificate of good character and her qualifications, as required. The Illinois Supreme Court denied her application. Bradwell appealed directly to the United States Supreme Court."
Bradwell v. Illinois
109
ROL: "The Privileges or Immunities Clause of the Fourteenth Amendment does not guarantee a woman’s right to hold the same occupation as a man." [Such as a Lawyer]
Bradwell v. Illinois
110
Heightened scrutiny means what?
Any form of review more skeptical or demanding of the government than RBR. [SS, IS]
111
Sex based classifications triggers what?
IS, as established by CJ Barren. [There is also another version by Ginsberg]
1. Important interest
2. Substantially related thereto [For Ginsberg, gov. must provide "exceedingly persuasive justification."
112
How to pass muster under IS? When does it apply?
1. Important gov. interest
2. Substantially related thereto
Typically applies to gender based classifications... And if Ginsberg standard of IS, gov. must provide "exceedingly persuasive justification."
113
What is said in Reed v. Reed about IS?
Nothing, not invented yet.
114
In what case did CJ Ginsberg attempt to refashion IS into something that more closely approximates SS?
US v. VA
1. Placed burden on gov.
2. Required gov. to provide "exceedingly persuasive justification."
115
T/F) As stated by CJ Brennan, it is an accurate statement that prior case law permits sex based classifications if they pass IS.
False. He created I.S. from the bench.
116
What’s the difference between the women’s military institute and the VMI?
VMI much older with huge alumni network
117
What is Ginsberg response to the idea that “adversity creates leaders" from VMI?
She agrees and finds no reason to exclude women. "Sounds great."
118
Intermediate Scrutiny [gender based discrimination]
1. CJ Brennan
2. CJ Ginsberg
A. Imp gov interest
B. substantially related thereto
1. Burden of proof on challenger.
2. Burden of proof on the government. She also added that the government must provide "exceedingly persuasive justification."
119
For CJ Ginsberg's heightened form of IS, which places burden squarely on the government, she also requires gov to provide what?
"Exceedingly persuasive justification" for the gender discrimination. [US v. VA]
120
What standard of I.S. would you use to help the government? The Challenger?
1. Government = Brennan
2. Challenger = Ginsberg "Exceedingly persuasive justification."
121
Scalia dissent in US v. VA was concerned with what?
The end of single sex education programs, such as VMI.
122
This test was first articulated in footnote 4 of Carolene products.
Then noted in dissent of Korematsu.
Today used by CJ Roberts in cases such as [Parents involved v. Seattle school district]
Strict scrutiny
123
Race based classifications trigger what?
SS
1. Compelling gov interest
2. Least restrictive means narrowly tailored thereto
124
T/F) In Craig v. Boren, CJ Brennan upheld the gender discrimination. [Beer case]
False. Struck down and introduced IS.
125
In what case did CJ Brennan shoot down gender discrimination regarding sale of beer to males & females? Why?
Craig v. Borren -- The state provided 1. Important gov. interest but failed to provide measures 2. substantially related to that interest. Introduced Intermediate scrutiny. His version is deferntial to gov.
126
Which case did CJ Brennan shoot down gender discrimination regarding alimony payment requirement for men but not women?
Orr v. Orr
127
What case did CJ Roberts shoot down affirmative action for violating "SS" standard under the EP violation? [This University case affirmed Regents of CA v. Bakee]
Students for fair admissions v. Harvard
128
What test?
1. Small business set aside =
2. Racial set aside =
3. Gender set aside =
4. Gov scholarships for 1st gen students =
1. RBR
2. SS
3. IS
4. RBR
129
Explain the test:
1. RBR [all else]
2. IS [gender]
3. SS [race]
1. Legitimate int. + rationally related [hypos ok]
2. Imp. interest + substantially related
3. Compelling gov. int. + least rest. means tailored narrowly thereto.
130
Issue: "May a state statute exclude males from enrolling in a state-sponsored professional nursing school without violating the Equal Protection Clause of the Fourteenth Amendment?"
Mississippi University for Women v. Hogan [Answer was no, using Ginsberg I.S.]
131
What is the doctrine called that applies equal protection principles to the federal government through the Due Process Clause of the Fifth Amendment?
Reverse incorporation [Boiling v. Sharpe]
132
CJ Warren, "It would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government than that imposed on the states.”
Boiling v. Sharpe
133
Railway Express [1949] demonstrates what test?
Underinclusive is fine so long as rational Basis review can be passed. [Law doesn't have to address all problems.]
134
In addition to EP RBR argument, railway argued what?
Violation of economic liberty [which might have succeeded before 1937 when Court abandoned Lochner]
135
“It is no requirement of equal protection that all evils of the same genus be eradicated or none at all.”
What critique does this address?
Underinclusiveness -- Railway Express 1949
136
CJ Douglas’ premise leading to rejection of RW's argument is a reflection of ____ ____ theory, then the dominant mode of analysis on the Supreme Court, "courts should stick to what they are good at, and second-guessing local legislatures is something courts have no talent to do."
Legal process theory
137
Opposite railway express, what case showed overinclusiveness?
NY City transit v. Beazer
138
"The New York City Transit Authority (Transit Authority) (defendant) promulgated a policy that it would not hire or employ persons currently participating in one of New York City’s several methadone maintenance programs."
NY City Transit v. Beazer [over-inclusiveness which was ok under RBR]
139
______ distinction: refers to law that unjustly discriminates between groups of ppl in way that reflects prejudice or stereotyping. Auto triggers strict scrutiny.
Invidious distinction. In NY v. Beazer, the Court disagreed and applied RBR.
140
Invidious distinction arguments trigger what forms of scrutiny?
Higher forms, such as I.S. or SS. The court rejected this argument in Beazer & applied RBR.
141
The Transit Authority enforced a policy not to employ persons using narcotic drugs.
Beazer
142
What argument did plaintiffs make in Beazer? [Good to throw down on essay]
1. Invidious discrimination violating the EP clause.
2. Over-inclusive and arbitrary
3. Sub DP violation [interfering with substantive right to work]
143
What were Scott's arguments in Dredd Scott?
1. He became free by residing in free territory.
2. As free man, he was a citizen and had standing to sue.
3. Missouri Compromise was valid and legally freed him.
144
In Strauder v. WV, what did Strauder argue?
That exclusion of black ppl from his jury violated EP clause of 14A
145
Did the Court agree with strauder in Strauder v. WV?
Yes
146
What did Korematsu argue?
Law violated EP component of the 5A DP clause.
147
Did the Court agree with Korematsu?
No, upheld the internment, passing SS test.
148
What standard used in Korematsu?
SS
149
What level of scrutiny did the SC apply in Korematsu?
SS
150
Did Korematsu win?
No.
151
CJ Black: "Restrictions that impact the civil rights of a single racial group are suspect and must pass strict scrutiny. However, if a restriction addresses a pressing public necessity, like national security, it might pass strict scrutiny." [Such as WWII]
Korematsu
152
Why did CJ Murphy dissent in Korematsu?
"The exclusion order was motivated by racism and was not reasonably related to preventing espionage and sabotage. The order was seen as a racist measure that affected all Japanese Americans."
153
Why was Lee Yick in jail?
Operating wooden laundry mat.
154
Did the ordinance in Yick Wo discriminate against chinese persons on its face?
No. Appplied in discriminatory manner tho.
155
Out of 81 applicants, how many chinese applicants granted license to operate wooden laundry mat?
1
156
What form of scrutiny used in Yick Wo?
Predecessor to SS, heightened scrutiny.
157
"Davis, an African American man, and another African American man applied to join the Washington, D.C. police department but were turned down. They sued the mayor of Washington, D.C., claiming that the police department used a verbal skills test that African Americans failed more often."
Washington v. Davis
158
WA v. Davis: What did davis claim?
5A DP violation
159
WA v. Davis showed that there must be ____ intent behind the act, law, legislation, etc.
Discriminatory intent
160
This case showed the [facially neutral laws] with disparate impact are unconstitutional unless motivated by [discriminatory intent.]
WA v. Davis
161
He was white/black mixed and tried to sit on whites only car.
Plessy v. Ferguson
162
In Plessy, Court held that seperate RR cars ok so long as what?
Seperate but equal
163
What cases rolled into Brown v. Bd of Education?
1. Briggs v. Elliott [SC]
2. Boiling v. Sharpe [DC]
3. Davis v. Prince County [VA]
4. Belton v. Gebhart [DL]
164
Why did the SC take a 1 year break before deciding Brown v. Bd of Education?
1. Scared of southern revolt to desegregation order
2. to "analyze" original meaning of the 14A.
165
Which new CJ was appointed during the 1 year Court break of Brown v. Bd of Education?
CJ Earl Warren
166
What case followed brown and showed that the brown holding must be enforced by the states?
Cooper v. Aaron
167
What three arguments did the Lovings make to challenge the constitutionality of the Virginia prohibition on interracial marriage?
1. EP Violation - SS [race]
2. Substantive DP violation
3. Invidious discrimination
168
"Under the Equal Protection Clause of the Fourteenth Amendment, a public university may not discriminate on the basis of race in its admissions policies, even if doing so benefits members of minority races. All racial and ethnic classifications are inherently suspect and must be viewed with strict scrutiny"
Regents of University of CA v. Bakke
169
Facts: 16 out of 100 spots in U.C. Davis Medical School class set aside for members of historically disadvantaged groups. A white male denied admission sued demanding admission on the grounds that some admitted members of minority groups had lower test scores than he had.
Regents of Univ. of CA v. Bakke
170
For CJ Powell, why was SS triggered in Bakke? He expanded on 3 reasons why SS is generally triggered.
1. Racial classifications [inherently suspect]
2. Race classifications [stigmatize] ppl, which undermines equality under the law.
3. Gov must show [compelling] interest(s) to overcome 1 and 2.
171
ROL: "A state statutory-rape law that discriminates against males does not violate the Equal Protection Clause of the Fourteenth Amendment because it deters males from engaging in sexual behavior that might lead to illegitimate pregnancies."
Michael M. v. Superior Court [Rehnquist Court]
172
Facts: "A 17-year-old boy named Michael M. was charged with statutory rape for having sex with a 16-year-old girl. This was against a California law that said statutory rape is when a man has sex with a girl under 18 who isn't his wife. Michael M. tried to get his charges dismissed, saying the law violated the Fourteenth Amendment's Equal Protection Clause"
Michael M. v. Superior Court
173
According to CJ ___________ dissenting in Michael M. v. Superior Court, the statute should be declared unconstitutional b/c impermissible gender stereotyping.
Brennan
174
T/F) In Michael M. v. Superior Court, Rehnquist found that the rape statute violated the equal protection clause.
false
175
According to Merkel, what may never justify diff. treatment of men and women?
Propping up stereotypes
176
ROL: Discrimination based on pregnancy in a state disability-insurance program is subject to rational-basis review.
Geduldig v. Aiello [they argued not all women are pregnant so its not sex based discrimination]
177
Facts: "California had a disability insurance program for private workers that didn't cover pregnancy-related disabilities. The program was funded by the workers themselves, not the state. Aiello, a woman who had a pregnancy-related disability, sued California and Geduldig, a state official, saying the program was unfair because it didn't cover her disability."
Geduldig v. Aiello
178
In Yick Wo, the statute itself was fine but it was applied in a ______ manner.
Discriminatory manner, applied exclusively to Chinese persons.
179
In ____ _____ of MA v. Feeney, similar to WA v. Davis, the SC demonstrated the persons must show discriminatory intent behind the challenged policy.
PA [personal administrator] of MA v. Feeney
180
ROL: "To show that a law is discriminatory and violates the Equal Protection Clause, a person has to prove that the law was made or kept because it hurts a certain group of people, not just that it ends up hurting them. Such as hiring Vets only."
PA of MA v. Feeney
181
Which case was pregnancy classification that was ruled not gender based because not all women get pregnant?
Geduldig v. Aiello
182
What cause was EP action b/c the state had Veteran hiring preference in place?
[The state won on grounds similar to facts in WA v. Davis.]
PA of MA v. Feeney
183
What case was about deterring young teenage men from unplanned pregnancies?
Michael M. v. Superior Court
184
ROL: Requiring men ages 18-26 to register for the draft does not violate EP.
Rosker v. Goldberg
185
In Rostker v. _______, a Reqhnquist court held that requiring men ages 18-26 to register for the draft does not violate EP.
Rostker v. Goldberg
186
Cases
1. Goldberg
2. Feeney
3. Michael M. v. Superior Court
4. Aiello
5. Graham v. Richardson
1. Draft
2. Veteran preference
3. Deterring young men / rape statute
4. Pregnancy not gender based classification
5. Test for alienage
187
What case gives you the test for alienage?
Graham v. Richardson
188
1. Pregnancy not gender classification
2. Alienage classification
3. Men draft
4. Rape statute [deterring young men]
5. Veteran preference
1. Geduldig v. Aiello
2. Graham v. Richardson
3. Goldberg
4. Michael M. v. Superior Court
5. PA of MA v. Feeney
189
ROL: "Under the Equal Protection Clause, states may not condition receipt of welfare benefits on the beneficiary having United States citizenship or residing in the United States for a specified number of years."
Graham v. Richardson
190
Non-citizenship classification is in many cases, ____ classification subject to higher level of review. Case?
1. Suspect [this case was before SS]
2. Graham v. Richardson
191
Who is protected by the DP clause of the 5A? Persons or citizens?
Persons
192
Alienage classifications today would be subject to what review?
It is suspect, so SS. [Graham v. Richardson]
193
T/F) In spite of Graham v. Richardson, If FED gov drawing alienage classification it is NOT suspect because courts will great deference to them in regulating presence of aliens within the US.
True!
194
1. State drawing alienage classification
2. FED drawing alienage classification
Which one is suspect?
The State, subject to SS. [Graham v. Richardson]
Deference given to FEDs to manage illegals in the U.S.
195
What level of scrutiny for child born to unmarried persons? [Illegitimacy.]
IS [Clark v. Jeter]
196
Parental status legitimacy subject to what review?
I.S.
197
Today, most provisions of the BORs do bind the states through selection incorporation of what A?
SI of the 14A
198
What parts of the 3, 5, and 7 amendments that have not been incorporated as against the several states?
3 = No Quartering
5 = Right to GJ trial [partially incorporated already]
7 = Right to civil trial above $20
199
Which BORs have not been incorporated as against the several states?
3,5,7, 9/10
200
DP of 14A provides that Just having a court process isn’t enough - the government also has to pay a fair amount.
Quincy RR v. Chicago
201
“States are required to compensate the owners of private property when their property is taken for public use.”
Quincy RR v. Chicago
202
3 reasons you can travel cross state lines?
1. Visiting
2. Economic actor
3. Changing residence
203
Which case recognized a 3 part right to travel?
Saenz v. Roe
204
Saenz v. Roe
1.
2.
3.
1. Right to leave / enter another state
2. Right to be treated as visitor
3. Right to be treated same as new resident
205
_______________ prohibits states from depriving their own citizens of the P&I of national citizenship
14A
206
_______________ is a rule of comity (states must treat out of staters the way they treat their own citizens)
Article 4
207
__________ P&I Cl protects the rights of citizens of the United States. The 14th Amendment limits the definition of the clause to fundamental rights.
14A
208
_____________ P&I Cl was intended to unify the states and ensure that citizens of other states are treated equally.
Article 4
209
Which 3 cases show your argument for originalism / recognition of a substantive right?
McDonald, Bruen, Dobbs
210
_________ law is a concept of inherent morality, whereas ________ law is the concrete legal system in place within a jurisdiction.
Natural vs Positive law
211
T/F) There is no natural law right against monopolies according to the SC.
True
212
Which Const. amendments represent the first time congress is vested with new powers?
Reconstruction amendments
213
Butchers in SH argue ___ ___ akin to slavery, hence them seeking relief under reconstruction amendments.
Involuntary servitude
214
An implied right of privacy exists within the Bill of Rights that prohibits a state from preventing married couples from using contraception. Case?
Griswold v. Connecticut [Prenumbra theory]
215
ROL: The deprivation of custody of an infant child from her mother solely because of the risk of racial biases violates the Equal Protection Clause of the Fourteenth Amendment.
Palmore v. Sidoti
216
What happened in Palmore v. Sidoti?
They said taking infant from mom because she was with blacks violated EP clause.
217
Facts: Anthony Sidoti (plaintiff) and Linda Sidoti Palmore (defendant), both Caucasians, were previously married and had one child, a three-year-old daughter. After the couple divorced, Linda began cohabiting with and soon married Clarence Palmore, Jr., an African American. After learning of this, Anthony sought sole custody of their child in Florida state court from Linda.
Palmore v. Sidoti
218
In ____ v. _____, the SC ruled that racial classifications by gov--even in prisons--must be reviewed under SS.
Johnson v. CA
219
T/F) You may assert Saenz v. Roe liberty as against airlines.
False. Only as against the several states.
220
What case should you use when your constitutional right to travel has been inhibited?
Saenz v. Roe
221
Can you use P&I clause of article 4 against your own state.
No, only the 14A P&I clause.
222
Article 4 may be used only as against whom?
Other states you visit or travel to.
223
Which case relied on the original public understanding that the Bill of Rights bound the federal government and not the states.
Barron v. Baltimore
224
In Skinner, what clause used?
Equal Protection clause
225
T/F) There is no federal right to be free of monopolies.
True. SH
226
Bruen provided that handgun regulation may be permitted but handgun ____ will not be.
Prohibition
227
T/F) The GJ clause of the 5A has been incorporated so as to bind the states.
False
228
PI cl. of 14A may be asserted by whom against the states?
National citizens
229
When was the only time the P&I clause is used?
Saenz v. Roe, protecting constitutional right to travel.
230
Why was Griswold prosecuted?
Providing counsel on how to prevent contraception.
231
Which amendment + clause protects you from your own state?
PI of 14A
232
Can businesses utilize P&I of article 4?
Citizens only
233
Saenz v. Roe outlines 3 constitutional rights to travel. What are they?
1. Interstate travel [Article 4]
2. Temp visitor [Article 4]
3. New resident [14A]
234
Right of unmarried persons to access contraception?
Einstendt
235
Right of public school teachers to teach modern languages other than english? Also includes right of parents to choose how kids raised according to what languages learned at school.
Myers v. Nebraska
236
Right to choose private school?
Pierce v. SOS
237
Right to have operational handgun in the home for purposes of lawful self defense?
McDonald
238
T/F) After Dobbs, regulations on abortions are presumed valid.
True if they can pass the RBR. IE: The act must be rationally related to the gov. interest to protect the life.
239
Dobbs overturned what cases?
Casey and Roe
240
Does Bruen stop states from licensing all together?
No, it restricts their unfettered discretion over licensing.
241
After Bruen, where can a person not carry guns?
Sensitive places like hospitals, gov. buildings, schools.
242
CJ Thomas opinion in McDonald?
2A is applicable to the states, but through the P&I clause, not the DP clause.
243
T/F) Dobbs allows states to retroactively punish someone who previously obtained an abortion.
False
244
T/F) Kavanaugh said that states may not punish person for seeking abortion out of state
True brother in Christ
245
Which other CJ in Dobbs vowed to protect other previously recognzied DP unwritten rights?
Kavanaugh
246
Any other substantive DP rights affected by Dobbs decision?
No
247
Regarding the first factor for overturning precedent, the first factor must be _____ wrong.
Egregiously
248
Right to reproduce not a fundamental right --- sterilized a woman against her will.
Buck v Bell
249
Overturning precedent? CJ Alito
1. egregiously wrong
2. poor reasoning
3. unworkable rule
4. disruptive effects on other areas of law
5. no social reliance
250
Did CJ Marshall find that the BORs applied to the states?
No, only as against the FEDs.
251
CJ in Barron?
Marshall
252
T/F) The Louisiana statute in SH was struck down.
False
253
In SH, the court said The 14As Privileges and Immunities Clause protects only _____ rights.
National rights
254
The __________ theory has been used to justify other rights, such as the right to abortion.
Prenumbra theory
255
Article 4 affords non-residents some P&I rights, same as residents. May have limits.
Coreyll
256
BORs does not apply to states, thus the City may undertake construction, destroying person’s property without providing just compensation under Takings clause of 5A.
Barron
257
This case allowed Prosecution to appeal unfavorable conviction for lesser charge whereas π argued 5A protection against double jeopardy, unsuccessfully.
Palko
258
This case said “states may regulate min. wage paid to female employees if the purpose if for promoting general welfare/good.”
WCH v. Parrish
259
This case overturned Adamson v. CA and incorporated the 5A right against self-incrimination.
Griffin
260
Forced sterilization of persons deemed “habitual criminals” violates EP clause of 14A.
Skinner
261
Here, the Court said there is no instance in history supporting idea that “alleged” father has rights to child of another’s marriage. [He was not married to the woman and claimed it was his child.]
Michael v. Gerald
262
This court said that choosing who to marry is a right of inherent “autonomy” and dignity. Helpful to tag onto your substantive DP arguments in an essay.
Obergell
263
Which case finally incorporated the 6A right of unanimous jury convictions?
Ramos v. Louisiana
264
Which cases tossed “SS” in favor of a textual and historical analysis for laws discriminating on fundamental rights?
Heller, McDonald, Bruen
265
State executed "alienage" classifications are suspect unless what?
Unless related to appointment to state gov. office.
266
T/F) A state statute instituting mandatory retirement for police officers at age 50 is subject to rational-basis review and does not violate the Equal Protection Clause of the Fourteenth Amendment.
True. MA Board of Retirement v. Murgia
267
What was the rule of law in MA Board of Retirement v. Murgia?
ROL: A state statute instituting mandatory retirement for police officers at age 50 is subject to rational-basis review and does not violate the Equal Protection Clause of the Fourteenth Amendment.
268
T/F) The mentally disabled are not a quasi-suspect or suspect class, and thus any legislative regulations affecting their rights are subject to rational-basis review and not intermediate scrutiny.
True. Cleburn v. Cleburn
269
T/F) A law prohibiting antidiscrimination protections for the gay, lesbian, and bisexual community violates the Equal Protection Clause of the Fourteenth Amendment. It's also [irrational animus.]
True. Romer v. Evans
270
T/F) States may prohibit foreign nations from becoming members of the state bar.
False
271
Can states criminalize pre-martial intimacy? [IE: Outlawing contraceptions]
No. Einstadt v. baird
272
What's unique about boiling v. Sharpe?
It read an EP requirement into the DP clause of the 5A.
273
T/F) In Loving v. VA, the Court held that the 14A prohibits [invidious discrimination] based on race.
True
274
In ____ v. _____, the SC held that laws motivated by [irrational animus] toward a disfavored class violates EP clause.
Romer v. Evans
275
[MA Bd of Retirement v. Murgia]
Strict scrutiny is required only if a legislative classification impermissibly interferes with the exercise of a _________ right or operates to the peculiar disadvantage of a __________ class.
1. Fundamental rights
2. Suspect class
276
Age based classifications subject to what standard of review?
Rational basis review -- MA BD of Retirement v. Murgia
277
T/F) Private businesses not bound by the EP clause.
True
278
T/F) Classifications based on sex or gender most likely to be upheld when.... used by gov. to account for [real biological differences related to pregnancy and child bearing.]
Geduldig v. Aiello
279
CJ Douglas, writing for the majority in Griswold, relied on Prenumbra theory and _______ of the 1, 3, 4, 5, and 9 Amendments.
Emanations
280
17) In Griswold, various justices voting to protect the right of married couples to access contraception relied on
a. The Ninth Amendment.
b. Penumbra or emanations of the First, Third, and Fifth Amendments.
c. A constitutional right to privacy.
d. Substantive Due Process.
e. All of the above.
e. All of the above
281
RBR is the default standard of review for classifications that do not involve suspect classifications. What case first showed us this? [Semester part I]
Williamson v. Lee Optical
282
Case names for unwritten rights?
1 Attend private school
2. Raise families [which includes how education /what learned]
3. Marry same sex partner
4. Sell contraceptive devices
1. Pierce v. SOS
2. Myers v. Nebraska
3. Obergfell
4. Eisenstadt
283
T/F) A state statute that criminalizes the burning of an American flag as a means of political protest violates the First Amendment.
False. Texas v. Johnson
284
T/F) The right against excessive fines has not been incorporated.
False. Timbs v. Indiana
285
ROL: Obscene material is unprotected by the First Amendment and subject to regulation by the states.
Miller v. California
286
What was the holding in Miller v. CA?
Obscene material is unprotected by the First Amendment and subject to regulation by the states.
287
ROL: If a plaintiff is a public official or is running for public office, he or she can recover damages for defamation only by proving with clear and convincing evidence the [falsity] of the defamatory statements and the presence of [actual malice] in the speaker.
NY Times Co. v. Sullivan
288
Holding: "Equal protection is denied when a facially neutral law is applied unequally among similarly situated people. Here, the San Francisco ordinance appears to be neutral and fair on its face. However, the ordinance has been applied unequally to similarly situated people."
Yick Wo v. Hopkins
289
Is Bradwell v. Illinois good law?
It hasn't directly been overturned but cases like US v. VA [VMI] show that male only institutions no longer tolerated. Today, she would be admitted to the Bar.
290
Is Palko v. Connecticut still good law?
No. "More than thirty years later, the Supreme Court overruled Palko v. Connecticut, deciding that double jeopardy bars retrial on a higher charge after a jury has convicted only on a lesser included offense. However, this did not help Frank Palko, who was executed in 1938."
291
Allan Bakke sued the Regents of the University of California, claiming the policy was unconstitutional after his application was rejected despite having higher scores than admitted minority applicants. The California Supreme Court ruled the policy unconstitutional and ordered Bakke's admission. [The SC affirmed]
Regents of CA v. Bakkee
292
The New York City Transit Authority (defendant) had a policy of not hiring or employing persons currently participating in methadone maintenance programs.
NY transit v. Beazer [SC upheld for transit authority]
293
"Obscene material is unprotected by the First Amendment and subject to regulation by the states."
Miller v. CA
294
To prove a discriminatory purpose as required for an EP Clause challenge, Feeney must prove that the Massachusetts legislature adopted the law because of, not merely in spite of, its adverse effects upon women.
Feeney, affirming logic demonstrated in Davis.
295
This case showed that public employees [state] can only be fired "for cause" and have constitutionally protected property interest in their employment.
Cleaveland Bd of Ed. v. Loudermill
296
In Cleaveland Bd of Ed. v. Loudermill, the Court held that the ___ ___ clause of the _____ Amendment applies to gov. employees who have [property] interest in their jobs.
DP of 14A
297
T/F) The DP clause of the 14A requires pre-termination [evidentiary hearings] before a state can terminate welfare benefits.
True. [Goldberg v. Kelly]
298
Goldberg v. kelly shows what?
The DP clause of the 14A requires pre-termination [evidentiary hearings] before a state can terminate welfare benefits.
299
T/F) Welfare benefits are a property interest.
True. [Goldberg v. Kelly]
300
T/F) A person who has obtained a restraining order under state law does not have a constitutionally protected property interest in having police enforce the restraining order.
True. [Castle Rock v. Gonzalez]
301
Castle Rock v. Gonzalez shows what?
A person who has obtained a restraining order under state law does not have a constitutionally protected property interest in having police enforce the restraining order.
302
Facts: "Jessica Gonzales sued the Town of Castle Rock, alleging a violation of the Due Process Clause of the Fourteenth Amendment after police failed to enforce a restraining order against her estranged husband, who subsequently murdered their three children."
Castle Rock v. Gonzalez
303
Facts: "DeShaney, a young boy, was severely beaten by his father despite the Winnebago County Department of Social Services having evidence of abuse. DeShaney sued Winnebago County under 42 U.S.C. §1983, claiming a violation of his liberty under the Due Process Clause of the Fourteenth Amendment."
DeShaney v. Winnebago County Social Services
304
The state’s duty to provide care arises only when it restrains an individual's liberty, such as in the case of prisoners, not protecting a kid from his abusive father.
DeShaney v. Winnebago County Social Services
305
1. No right to be protected from abusive father.
2. No property right for state to enforce restraining order.
3. Welfare benefits = property interests.
4. Property interest in your state employment.
5. Over-inclusive policy, excluding meth-heads is OK if passes RBR.
6. Veteran preference policy not enough to show EP violation.
7. Obscene material not protected by 1A.
8. AA programs violate EP even if for minority ppls.
9. Public official must show actual malice or falsity to win defamation claims.
10. Burning American flag is freedom of expression. [Fuck no it aint]
1. DeShawney v. Winnebago SS
2. Castle Rock v. Gonzalez
3. Goldberg v. Kelley
4. Loudermill
5. NY RR v. Beazer
6. Feeney
7. Miller v. CA
8. Regents CA v. Bakkee
9. NY Times Co. v. Sullivan
10. Texas v. Johnson
306
T/F) A racially neutral government act that disproportionately impacts one race over another does not violate equal protection if there is no discriminatory intent.
If true, why?
WA v. Davis. [True]
It is not enough to show disparate impact, must show discriminatory intent.
307
When a governmental agency enforces a rule based on a non-suspect classification that creates a disparate impact across racial lines, the rule will not automatically be invalidated or subjected to heightened scrutiny unless there is evidence of ____________ intent.
Discriminatory intent. [WA v. Davis]
308
T/F) The mere fact government action has a racially discriminatory effect does not render it unconstitutional.
True, you need proof of discriminatory intent. [WA v. Davis]
309
When is RBR with "bite" typically triggered?
Quasi-suspect classifications, such as those fueled by irrational [animus] toward a particular class of ppl. [Hobos, hippies, gays, etc.]
310
Classifications fueled by "irrational animus" trigger what?
RBR with "bite" - Romer v. Evans
311
Facts: "A law of the State of Idaho imposed a mandatory preference for the selection of males over females in the appointment of an administrator of an intestate estate. Reed (plaintiff) was not selected to serve as the administrator of an estate because of her gender."
Reed v. Reed. The Court applied RBR b/c this was 1971 > IS came later in 1976 for gender classifications.
312
What year were gender classifications finally subject to IS and not RBR such as was the case in Reed v. Reed five years earlier?
1976 > Craig v. Boren
313
This case in 1971 laid the ground work for what would occur in Craig v. Boren five years later.
Reed v. Reed [RBR with "bite"] which then later became IS in Craig v. Boren.
314
Content based 1A restrictions:
1. Per se unconstitutional
2. Or must pass SS
1. Brunetti
2. Reed v. Town of Gilbert
315
T/F) It is a settled principle of free-speech law that the government cannot discriminate against speech based on the speaker’s viewpoint.
True. [Brunetti]
316
T/F) In 1A arena, you may attack regulations on free speech as vague and overbroad.
True
317
According to CJ Kagan in [Brunetti], content-based restrictions on speech is plainly ___________.
Unconstitutional
318
If the Supreme Court decides that the restriction is, in fact, content-based, is that good news for gov.?
1.
2.
No. It is either:
1. Per se unconstitutional; or
2. Must pass SS [Reed v. Town o/ Gilbert]
319
Content based restrictions on free speech are either Per Se unconstitutional [Brunetti 2019] or, according to ____ v. ______ [2015] the restriction must pass SS.
Reed v. Town of Gilbert
320
ROL: A restriction on speech that is content-based [on its face] is subject to strict scrutiny regardless of the government’s benign motive or justification.
Reed v. Town of Gilbert. Content based restrictions will face the SS test of this case or they are per se unconstitutional per Brunetti.
321
If you represent the government, you want to argue the 1A restriction is not content based but... but one...
1. Time, manner, place restriction that is reasonable under the time and circumstances [Kovacs v. Cooper]
2. Narrowly tailored
3. Leaves open alt. means of comms.
322
ROL: "Under the First Amendment, the government can impose reasonable restrictions on the method of transmitting speech."
Kovacs v. Cooper -- You will want to argue this case if you are representing the government.
323
If restriction on 1A is content based?
1.
2.
1. Per se unconstitutional [Brunetti]
2. Or must pass SS [Reed v. TOG]
324
Is the 1A absolute?
No. If it was, any expressive conduct would be protected. [CJ Warren in O'Brien]
325
When a governmental agency enforces a rule based on a non-suspect classification in a manner that creates a disparate impact across racial lines,
1. The classification is per se invalid.
2. The classification will be subject to strict scrutiny.
3. The classification will be subject to intermediate scrutiny.
4. The classification will be invalidated if it is overinclusive or underinclusive.
5. None of the above are true.
None of the above
326
T/F) IS was unheard of until 1976.
True
327
T/F) IS applies to more than ten types of governmental classification identified as quasi-suspect in Supreme Court caselaw.
False
328
T/F) Hypothetical justifications for governmental action not supported by the evidentiary record were considered by the Supreme Court applying rational basis review in Williamson v. Lee Optical.
True, this was an early case of RBR.
329
T/F) The opinion of the Court in Students for Fair Admissions held that there are no compelling governmental interests that can ever justify the use of race-based classifications by governmental actors.
False. It held that the University could not pass SS test though.
330
When is RBR with bite triggered?
Classifications based on animus. [Romer v. Evans] - less deferential to the government.
331
Under Rock against Racism case, the means ends of restriction must be what?
"Narrowly tailored"
332
ROL: "Under the First Amendment, a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government’s legitimate, content-neutral interests"
Ward v. Rock against Racism
333
What requirement for content-neutral restrictions, such as manner, time, place of expression?
"Narrowly tailored" which doesn't even mean least restrictive.
334
T/F) A regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government’s legitimate, content-neutral interests but does NOT need to be the least restrictive or least intrusive means of doing so.
True. Ward v. Rock against racism and Kovacs.
1. Reasonable under cicrumstances
2. Content neutral
3. Narrowly tailored
4. Leaves open alt. means of comms
335
According to CJ ______, the 1A is absolute b/c "make no law" means make no law.
CJ Black in Smith v. California [1959]
336
Holding: " Congress has the right to prevent substantive evils. Schenck’s speech intending to incite draftees to obstruct the draft can be seen as representing a clear and present danger because the nation is at war"
Schneck v. US [1919]
337
According to CJ Holmes in Schenck [1919], 1A has limits, such as shouting fire in a crowded theatre causing ppl to panick, leading to injury and death. [T/F]
True
338
Which is protected?
A. Performance art
B. Erotic dancing
C. Flag burning
D. Draft card burning
All but the draft card. [US v. O'Brien]
339
This Court held that "The court held that an [important] or [substantial governmental interest] in regulating the [non-speech] element of conduct may justify incidental limitations on protected speech."
O'Brien
340
Per O'Brien test, government regulation is sufficiently justified if...
1. Withing gov. constitutional power
2. Important / substantial interest
3. Suppression on expression no greater than necessary
4. Gov. interest and expression suppression unrelated.
341
When does the O'Brien test apply?
To restrictions on freedom of [expression] for which the gov. has an important or substantial interest.
342
O'Brien test?
1. Withing gov. constitutional power
2. Important / substantial interest
3. Suppression on expression no greater than necessary
4. Gov. interest and expression suppression unrelated.
343
O'Brien test?
1. Within gov. constitutional power
2. important / substantial interest
3. suppression no greater than necessary
4. expression suppression & gov. interest unrelated
344
1. Content based restriction subject to SS
vs
2. Content based restriction is per se unconstitutional.
1. Reed v. Town of Gilbert [2015]
2. Brunetti [2019]
345
This case is important because of the "secondary effects" doctrine which allows governments to impose zoning restrictions on businesses even if the business deals in protected expression.
Renton v. Playtime Theaters
346
T/F) The Supreme Court has long held that regulations restricting speech based on its content violate the First Amendment. However, content-neutral time, place, and manner regulations are acceptable so long as they are designed to serve a substantial government interest and do not unreasonably limit alternative avenues of communication.
True [playtime theaters]
347
1. Membership in revolutionary organization is protected if not inciting imminent unlawful violence.
2. Fighting words not protected
1. Brandenburg
2. Chaplinski
348
Is membership in the "proud boys" or "KKK" protected 1A expression?
Yes, unless they are intended imminent unlawful violence. [Brandenburg]
349
T/F) Obsence works not protected.
True - Miller v. CA
350
T/F) “Fighting words” that incite others to violence are not protected by the First Amendment from government regulation.
True. [Chaplinsky]
351
A local ordinance prohibiting the use of public parks for the performance of music between 11:00PM and 6:00AM is subjected to what test?
1. "Narrowly tailored" > Rock against Racism
2. Content-neutral
3. Alternative means of comms
4. Reasonable [Kovacs]
352
Can states require that state officials -- such as Judges -- be appointed pursuant to state law to be CITIZENS of the US?
Yes.
353
T/F) The SC has identified age as a non-suspect classification subject to RBR.
True. [MA Bd of Retirement v. Murgia]
354
T/F) [Private] entities may fire and not employ persons again because of their expressed political opinions.
True
355
17) In Griswold, various justices voting to protect the right of married couples to access contraception relied on
a. The Ninth Amendment.
b. Penumbra or emanations of the First, Third, and Fifth Amendments.
c. A constitutional right to privacy.
d. Substantive Due Process.
e. All of the above.
E
356
Content-based restraints on speech are subject to what tests?
1. SS; or [Reed v. Town of Gilbert]
2. Per Se Unconstitutional [Brunetti]
357
The right to keep an operational handgun in the home for purposes of lawful self-defense.
McDonald
358
The right to marry a same sex or opposite sex partner.
Obergfell
359
No right against government licensed monopolies.
SH
360
No right of liberty to K.
Lochner
361
No right to physician assisted suicide.
Glucksberg
362
No right to publish obsence material.
Miller
363
The Constitution permits no recovery by a [public figure] for defamation unless the ∆'s statements were made with knowledge that they were _______ or reckless disregard of a known risk that they were such.
False. [Or actual malice]
364
T/F) Brown v. Board of Education applied only to public schools.
True
365
Brown v. Board of Education pointedly rejected what?
Originalism
366
T/F) In Brown v. Bd. of Ed., SC held that Topeka failed to satisfy the standard of separate but equal.
False. They tossed the doctrine all together.
367
When is the O'Brien test applied?
1A cases involving content-neutral [expressive] conduct, such as burning a flag or draft card.
367
1A cases and tests:
1. Expressive conduct
2. Time, manner, place [content neutral]
3. Content restriction
1. O'Brien test
2. Ward v. Rock against Racism [Narrowly tailored]
3. Either Per se unconstitutional [Brunetti] or SS [Reed v. Town of Gilbert]
368
1. RBR
2. IS
3. SS
1. legitimate interest + any rational reason [even hypos]
2. Important interest + substantially related
3. Compelling interest + least restrictive means tailored narrowly thereto.
369
What case incorporated 1A as against the states?
Gitlow v. NY 1925
370
In this case, a jury was prohibited from assessing punitive damages award that would have stifled freedom of expression.
NY Times Co v. Sullivan
371
ROL: "Speech that would ordinarily be protected by the First Amendment may nevertheless be prohibited if it is used in such circumstances and is of such a nature as to create a clear and present danger of substantive evils that Congress has a right to prevent." [Such as yelling fire in a packed theater]
Schenck v. US
372
Jeffersonians or Hamilton were/was of the view that the 1A protected right to criticize gov. officials and sedation acts was blatantly unconstitutional?
Jeffersonians
373
This case assumed w/o holding that Alien sedation act was unconstitutional.
NY Times Co. v. Sullivan
374
Categorial carveouts to 1A protection?
Defamation [NY Times v. Sullivan]
Fighting words [Chaplinsky]
obscenity [Miller]
Sedition [Schenck]
375
In this case, ∆ was sending letters to ppl telling them bad shit about going into WWI.
Schenck v. US. This case incorporated 1A against the states.
376
Schenck was a socialist who distributed leaflets urging resistance to WWI draft because it violated what amendment?
13A prohibition on involuntary servitude
377
This court held that speech which creates "clear and present danger" (such as encouraging insubordination during war time) can be restricted / is not protected.
Schenck v. US
378
Content neutral restraints also known as ?
Time, manner, place restrictions.
379
If gov. concedes that the restriction is in fact content-based, what can they argue in the alternative?
It's one of the permissible carveouts. IE: Defamation, fighting words, sedition, etc.
380
What is the test for content neutral time, manner, place restrictions?
1. Content neutral
2. Narrowly tailored [rock against racism]
3. leave open alternative channels of comms [playtime theaters]
381
