Quiz Questions

Question 1

In brief, the historical context of Marbury v. Madison was as follows:

Answer 1

After the Federalists lost the 1800 Presidential election, Marbury, a Federalist, had been appointed a judge but his commission had not been delivered before the Democrat-Republicans took office and they refused to deliver it. Marbury filed suit in the Supreme Court to obtain the commission.

Question 2

Which of the following propositions is most accurate? Marbury v. Madison held that:

Answer 2

Supreme Court has the authority to declare both acts of Congress and actions of the Executive branch to be unconstitutional.

Question 3

Suppose there is strong opposition in Congress over the prospect that the President will deploy American troops to quell a civil war in a remote area of sub-Saharan Africa. The opponents want to pass a law prohibiting the President from deploying troops. Others in Congress support the deployment. They argue that any action by Congress to prohibit it would be an unconstitutional interference with the President’s power as Commander-in Chief.

Suppose further that the Speaker of the House and the Majority Leader of the Senate write a letter to the Supreme Court asking whether it would be unconstitutional for Congress to pass a statute prohibiting the deployment. Which of the following is the action most likely to be taken by the Court in response to the Leaders’ letter?

Answer 3

The Court will decline to answer the Leaders’ letter on grounds that to do so would violate the prohibition on advisory opinions.

Question 4

In Massachusetts v. Environmental Protection Agency, the Court held that:

Answer 4

Massachusetts had standing because it passed each of the injury, causation, and redressability tests.

Question 5

5. Suppose the world has been afflicted by a new pandemic called APEX-23. Several pharmaceutical firms race to develop vaccines against APEX-23 but are only willing to bring them to market if Congress passes a law limiting their liability in the event of unanticipated side effects. Congress passes a bill (Immunity Act) granting the the Pharma companies the protection they seek. There is medical consensus that everyone is at extremely high risk for APEX-23 unless they are vaccinated. Suppose further that 40 individuals challenge the constitutionality of the Immunity Act on grounds that it violates the Due Process Clause because it allows injuries to occur without compensation. Which of the following is the action most likely to be taken by the Court in response to the 40 individuals’ lawsuit?

Answer 5

The Court will find that the 40 individuals have standing and that their lawsuit is justiciable because the plaintiffs pass the injury, causation, and redressability tests.

Question 6

The Statement of Accounts Clause, Article I, § 9, cl. 7, requires that “a regular Statement of Account of the Receipts and Expenditures of all public Money shall be published from time to time.” Suppose the United States Navy keeps secret the amount of money spent on fossil fuel purchases, including petroleum for the fleet. Suppose further that Professor Schumm files a lawsuit in federal court challenging the constitutionality of the Navy’s secrecy policy. Which of the following is the action most likely to be taken by the Court in response to Professor Schumm’s lawsuit?

Answer 6

Professor Schumm’s lawsuit will be dismissed on grounds of standing, i.e., the lawsuit will be held not justiciable because it violates the prohibition of generalized grievances.

Question 7

Suppose AI has progressed to the state where video surveillance of crowds captures the face of most individuals in the crowd and then crosses those images with government photo databases like drivers’ licenses. The National Park Service uses such technology to create a database of individuals who visit the National Mall in Washington, D.C., and communicates with these individuals after their visits to determine their satisfaction with their visit and to encourage them to return.

Suppose further that the President deploys American troops to quell a civil war in a remote area of sub-Saharan Africa (see Question #3), and the Citizens Committee for Peace Everywhere (C-COPE) plans a mass demonstration on the Washington Mall to protest the deployment. However, C-COPE is concerned that the government will conduct surveillance of their lawful and peaceful political activity, thereby chilling their rights under the Free Speech Clause of the First Amendment. C-COPE files a lawsuit against the government in federal court, seeking an injunction prohibiting the government from any surveillance of their protest. Which of the following is the action most likely to be taken by the Court in response to C-COPE’s lawsuit?

Answer 7

The Court will dismiss the lawsuit on grounds that it is not ripe, i.e., it does not constitute a justiciable controversy because it relies on facts that are still contingent – there has been no showing of objective harm or threat of specific future harm facts have sufficiently developed to render the legal question susceptible to a definitive answer.

Question 8

The President’s veto power is defined in Article 1, § 7 of the Constitution. The Constitution also specifies that if the President does not veto or sign a bill within 10 days (excluding Sundays), it becomes a law. Suppose the Congress passed a bill (an ordinary bill; not a constitutional amendment) extending the time for the president to veto a bill from 10 to 20 days. The President, not surprisingly, quickly signed the bill into law.

Suppose further that Representatives Alpha and Bravo and Senators Charlie and Delta, all of whom had voted against the bill, filed suit in federal court challenging the constitutionality of the bill. Which of the following is the action most likely to be taken by the Court in response to the Legislators’ lawsuit?

Answer 8

The Court will find that the Legislators do not have standing, i.e., hold that the lawsuit is not a justiciable controversy because the Legislators fail all of the injury, causation, and redressability tests.

Question 9

In addition to being generally considered to be the “father of the Constitution,” James Madison also:

Answer 9

Was elected President of the United States.

Was elected to the U.S. House of Representatives.

Served in the cabinet of President Thomas Jefferson.

Question 10

The “Bill of Rights” refers to the first ten amendments to the Constitution. Which of the following statements about the Bill of Rights is NOT correct?

Answer 10

Four of the amendments that comprised the original Bill of Rights have been repealed. (NOT CORRECT)

As a member of the U.S. House of Representatives, James Madison was the legislative author of the Bill of Rights, both drafting its language and introducing that language in the House as proposed amendments to the Constitution.

The absence of any bill of rights was considered the great deficiency of the original Constitution; indeed, its lack in this respect was a serious obstacle to ratification by the states.

In a famous speech, Madison declared that the basic intent of the Bill of Rights was to guard “against the legislative, for it is the most powerful, and most likely to be abused,” as well as to protect against abuses by the Executive and “the body of the people, operating by the majority against the minority.”

Question 11

Thomas Jefferson and Alexander Hamilton took conflicting approaches as to the construction of the Necessary and Proper Clause of the Constitution. In McCulloch v. Maryland, Marshall resolved the conflict as follows:

Answer 11

The Court gave an expansive interpretation to the Necessary and Proper Clause which was in accord with Hamilton’s view.

Question 12

Consider the following statements about the two Founders discussed in this week’s videos. Which statement is correct?

Answer 12

Both Madison and Hamilton were strong supporters of “judicial review.”

Question 13

The Necessary and Proper Clause:

Answer 13

Which refers to the powers of Congress, was given an expansive interpretation in McCulloch v. Maryland.

Question 14

In Gibbons v. Ogden, Ogden operated steamboats between New York City and Elizabeth, New Jersey, pursuant to a license granted by the New York legislature. When Gibbons was granted a federal license to operate steamboats along a similar route, Ogden sued, claiming the federal license was invalid because Congress did not have the authority to regulate the economic activity involved. Clearly, operating a steamship line between New York and New Jersey is interstate commerce and the Court held the regulation was authorized under the Commerce Clause. Which of the following statements about the holding in Gibbons is correct?

Answer 14

Even though Gibbons could have been decided on the narrow grounds that the Commerce Clause was not violated because operating a steamship between two states is clearly interstate commerce, the Court gave the definition of commerce, and therefore the power of Congress under the Commerce Clause, a far more expansive definition.

Question 15

The doctrine of “dual federalism” stands for the proposition that the federal and state governments operate in mutually exclusive spheres, with one, and only one, level of government authorized to regulate a given industry or type of activity. Under “dual federalism,” the ultimate arbiter of a lawsuit over whether a given industry or type of activity falls under the federal or state authority is:

Answer 15

The United States Supreme Court.

Question 16

The following are the principal tenets of “dual federalism”:

Answer 16

(1) Allocation of regulatory authority over commerce to Congress and over production to the states; (2) Economic activity must a “direct effect” on interstate commerce for it to constitute “commerce”; and (3) Regardless of (1) and (2), Congress still cannot regulate if the activity intrudes into the zone of activities reserved to the states.

Question 17

Which of the following statements is correct as to Carter v. Carter Coal Co. (U.S. 1936)?

Answer 17

Justice George Sutherland wrote the majority opinion holding a federal statute regulating labor relations in the coal industry to be unconstitutional, declaring that it was irrelevant to the constitutionality of the statute that it affected interstate commerce because any such effects were not sufficiently direct.

Question 18

Consider the following pairs of Commerce Clause cases in choose the pair in which the Court’s holdings are most consistent with one another:

Answer 18

Heart of Atlanta Motel v. United States; and Katzenbach v. McClung Sr. & McClung, Jr.

Question 19

The following questions use the terms “Era I,” Era II,” “Era III,” and “Era IV.” Era I is the period of Commerce Clause jurisprudence from Gibbons until the 1890s; Era II is the period of “dual federalism” from the 1890s until 1937 characterized by cases like United States v. E.C. Knight; Era III is the period from 1937 to the 1990s characterized by cases like NLRB v. Jones & Laughlin Steel Corp; and Era IV is the period from the 1990s today characterized by cases like United States v. Lopez.

7. In A.L.A. Schecter Poultry v. United States, decided in Era II, a Brooklyn poultry dealer, having bought poultry that had moved in interstate commerce but sold it only locally, was charged with violating a federal statute setting the minimum wage and maximum working-hours. The Court held the statute to be unconstitutional, i.e., to violate the Commerce Clause. Based on what we have studied, which of the following statements is most likely correct?

Answer 19

If Schecter had been decided in Era I or Era III, the statute would have been declared constitutional; but if decided in Era IV, the result would be uncertain, i.e., it is not certain whether the Court would uphold the statute or invalidate it.

Question 20

In Wickard v. Filburn, decided in Era III, the owner of a small Ohio farm was charged with violating a federal statute for growing an amount of wheat in excess of his statutory allotment, even though he only used the excess for home consumption. The Court held the statute to be constitutional, i.e., not to violate the Commerce Clause. Based on what we have studied, which of the following statements is most likely correct?

Answer 20

If Wickard had been decided in Era I, the result would have been the same; but if been decided in Era II or Era IV, the statute would have been declared unconstitutional.

Question 21

In addition to being Chief Justice of the United States Supreme Court from 1800-1835, John Marshall:

Answer 21

Served in Congress.

Served in the cabinet of President John Adams.

Fought in the American Revolutionary War.

Question 22

As to the power of “judicial review,” i.e., the judiciary’s power to declare acts of Congress and actions of the Executive unconstitutional, which of the following statements is most accurate?

Answer 22

The doctrine of judicial review was part of the American legal tradition prior to the decision Marbury v. Madison.

Question 23

Thomas Jefferson and Alexander Hamilton took conflicting approaches as to the construction of the Necessary and Proper Clause of the Constitution. In McCulloch v. Maryland, Chief Justice John Marshall resolved the conflict as follows.

Answer 23

The Court gave an expansive interpretation to the Necessary and Proper Clause which was in accord with Hamilton’s view.

Question 24

Chief Justice John Marshall’s opinion in the Dartmouth College Case held that a corporate charter is a contract within the protection of the Contract Clause of the Constitution. The importance of this holding is that:

Answer 24

A corporation, even though an entity created by law, has constitutionally protected contract rights, even against the government created.

Question 25

Congress may exclude state regulation by enacting a federal law that displaces or “preempts” state regulation in that area. The constitutional basis for this pre-emption is:

Answer 25

The Supremacy Clause.

Question 26

Suppose Congress has passed and the President signed the “Health Warnings to Pregnant Persons Act” giving the Department of Health and Human Services authority to mandate warning labels for products sold in interstate commerce that pose health risks to pregnant persons. Pursuant to this authority, HHS has mandated that all cans and bottles of beer sold in interstate commerce carry a label that says: ”Warning: Consuming this product while pregnant could be dangerous to your health.” Meanwhile, the State of Indiana has a law that mandates that all cans and bottles of beer manufactured in Indiana carry a label that says: ”Warning: Do not consume this product in excess if you are pregnant; excessive consumption presents serious health risks to both you and the fetus.” The Hoosier Beer and Wine Manufacturers Association (HBWMA) filed suit to have the Indiana enactment declared invalid on grounds that the Indiana enactment is preempted by the HHS regulation. Of the following choices, which one is the most likely result of the lawsuit:

Answer 26

The HBWMA will win on grounds of conflict preemption.

Question 27

Dormant Commerce Clause scrutiny arises in which of the following circumstances:

Answer 27

A state statute affects interstate commerce and the federal government has not acted preempt that state law.

Question 28

Suppose the following. In Situation A, Congress has passed a statute, the constitutionality of which is challenged on grounds that the statute exceeds Congress’s power under the Commerce Clause. In Situation B, a state has passed a statute, the constitutionality of which is challenged on grounds that the statute violates the dormant Commerce Clause. Suppose further that the Court declares both statutes unconstitutional, i.e., both the statute passed by Congress in Situation A and the statute passed by the state in Situation B are struck down as unconstitutional. Which of the following statements is correct?

Answer 28

Congress cannot reverse the result of the Court’s decision in Situation A but can reverse the result of the Court’s decision in Situation B.

Question 29

In 1990, Indiana enacted a statute that imposed requirements on haulers who dumped solid waste in landfills located in the state. Among other things, the law prohibited dumping of out-of-state solid waste unless the driver importing the waste presented to the landfill operator a "document" from a health officer from the foreign state certifying that the solid waste did not contain any hazardous waste in violation of federal law or any infectious waste in violation of Indiana law. The law contained other requirements as well applicable to out-of-state trash haulers that did not apply to their Indiana counterparts. Out-of-state waste haulers challenged the Indiana statute as violating the dormant Commerce Clause. Which of the following decisions that we discussed in class best supports the waste haulers’ position?

Answer 29

City of Philadelphia v. New Jersey (1978).

Question 30

President Andrew Jackson faced two constitutional crises during 1832. First, Congress reauthorized the Bank of the United States by passing the National Bank Act which Jackson considered unconstitutional even though its constitutionality had been upheld in McCulloch v. Maryland. Second, South Carolina issued what it called an "Ordinance of Nullification," declaring a tariff act passed by Congress unconstitutional and not binding on the state, based on the "nullification theory," to wit, that a state has the authority to declare acts of the federal government unconstitutional and void. How did Jackson react to these two crises?

Answer 30

Jackson vetoed the National Bank Act and rejected of South Carolina’s nullification theory, declaring that constitutional disputes are to be resolved by the Supreme Court.

Question 31

One section of Chief Justice Roger Taney's majority opinion in Scott v. Sandford (1857) declared the Missouri Compromise's prohibition against slavery to be unconstitutional. (The Missouri Compromise was an act of Congress passed in 1820 that admitted Missouri to the Union as a slave state in return for future states north of Missouri's southern border being admitted as free states.) Taney's rationale was that because the Missouri Compromise deprived slave owners of the ownership of their slave property upon entering Minnesota, it violated the Due Process Clause of the Fifth Amendment by depriving slave owners of their property without due process of law. Which of the following arguments refute Taney's rationale?

Answer 31

As a matter of constitutional text, there is no prohibition in the Constitution for laws relating to slavery and nothing to indicate that the Framers intended one. The Northwest Ordinance that prohibited slavery was passed by the First Congress which had also passed the Bill of Rights. To say that slaves are property violates the founding principles of our country – that all men are created equal and endowed by their Creator with certain inalienable rights, including liberty. Section 3 of Article IV provides that Congress can make "all needful regulations" governing the territories. With Congress having this explicit power, a prohibition on slavery in the territories cannot be implied.

Question 32

Prior to 1869, the nation had three federal "circuit courts," staffed by federal district court judges and Supreme Court Justices "riding circuit." Chief Justice Roger Taney was sitting as a circuit judge when he issued a writ of habeas corpus on behalf of an imprisoned secessionist named John Merryman on grounds that Merryman had been illegally detained. The prison's commander refused to obey the writ on grounds that President Abraham Lincoln had suspended habeas corpus. Ex parte Merryman, 17 Fed. Cas. 144 (D.Md. 1861). Taney cited the prison commander for contempt. His rationale was that under section 9 of Article I, only Congress—not the President—had the power to suspend habeas corpus. Lincoln did not respond directly to Taney but stressed the obvious dangers to the Union and cited previous crises that had triggered comparable exercises of a President's war powers. Who was right?

Answer 32

Though subject of considerable debate, the consensus of learned opinion has been that Taney was right and Lincoln was wrong.

Question 33

In Youngstown Sheet & Tube v. Sawyer, the Supreme Court held that President Harry Truman’s seizure of the country’s steel mills during the Korean War because of an impending strike by steelworkers was unconstitutional. Which of the following statements is correct?

Answer 33

President Truman immediately gave Congress formal notice that he had ordered the Secretary of Commerce to seize and operate the nation’s steel mills, and Congress took no action. Justice Robert Jackson’s concurring opinion in Youngstown identifying three separate categories of presidential action with different legal consequences, is better remembered that Justice Hugo Black’s majority opinion. Only a few years before Youngstown, Congress had enacted major labor-reform legislation during which it considered, but rejected, an amendment that would have authorized governmental seizures all in cases of emergency.

Question 34

Casey Seaton was the Deputy Director of the FBI during the first term of a President’s administration. After the President was re-elected to a second term, the President nominated Seaton to be the new FBI Director, a position which requires Senate confirmation. During the President’s first term, Seaton had been deeply involved in a controversial FBI program called “Big Brother” involving surveillance of Americans suspected of illegal activities. In connection with the confirmation hearings, the Senate requested all documents relevant to Big Brother; the administration refused on grounds that to do so will expose undercover FBI agents. If the matter is litigated, which of the following is the most likely result?

Answer 34

The Court will order the administration to provide the information to the Senate but limit inspection of any information deemed by the administration to be secret to a small group of designated Senators.

Question 35

he President’s veto power is defined in Article 1, § 7, ¶ 2 of the Constitution (the “presentment Clause”). It specifies that if the President does not veto or sign a bill within 10 days (excluding Sundays) of presentment, it becomes a law. Suppose the Congress passed a bill (an ordinary bill; not a constitutional amendment) extending the time for the president to veto a bill from 10 to 20 days. The President, not surprisingly, quickly signed the bill into law. Call this act the “20-day Veto Act.” Suppose further that in the next Congress, a bill was passed at the behest of the nursing home industry that repealed a special 5% tax that had been imposed upon nursing home profits. Call this bill the “Nursing Home Tax Relief Bill.” The President vetoed the bill on the 15th day after presentment. The nursing home industry sued, arguing that the President had not validly vetoed the bill, it had in fact become law. At all relevant times, the Congress was in session, i.e., it did not adjourn. Which of the following is the action most likely to be taken by the Court in response to the nursing home industry’s lawsuit?

Answer 35

The Court will find that the Nursing Home Tax Relief Bill had become law because the 20-day Veto Act violated the Presentment Clause’s express language providing that if a bill is not vetoed within ten days, “the Same shall be a Law.”

Question 36

. The “Non-delegation Doctrine” holds that Congress cannot delegate legislative power to the executive branch. In the following case, the Supreme Court struck down a statute as unconstitutional for violating the non-delegation doctrine:

Answer 36

A. L. A. Schechter Poultry Corp. v. United States (1935).

Question 37

Medicaid is a joint federal-state program that pays for health care costs incurred by low-income individuals. Medicaid covers both “acute care” (physicians, hospitals, etc.) and “long-term care” (primarily nursing homes). Concerned about the rising cost of nursing home care, Congress passed and the President signed the “Nursing Home Medicaid Cost Control Act” (NHMCCA). The NHMCCA contained a provision that said: “The Secretary of Health and Human Services may promulgate and enforce such rules as shall be necessary or appropriate to carry out the purposes of this Act.” (The Department of Health and Human Services (HHS) is the agency in the Executive Branch that administers Medicaid; the Secretary of HHS is appointed by the President and a member of the President’s cabinet.) Pursuant to this provision, the Secretary promulgated a rule imposing certain new regulations (the “New Regulations”) on the nursing home industry. The nursing home industry sued alleging that the New Regulations violate the Major Questions Doctrine. The nursing home industry will likely win if:

Answer 37

The New Regulations are economically or politically significant.

Question 38

We have discussed several cases in both Week 2 and Week 4 in which opinions of the Court and of individual justices in their concurrences or dissents have been characterized as “formalist” or “functionalist.” Which of the following statements is most accurate?

Answer 38

Justice Hugo Black’s majority opinion in Youngstown Sheet & Tube Co. v. Sawyer and Justice John Paul Stevens majority opinion in Clinton v. New York City are examples of formalist opinions.

Question 39

The Ethics in Government Act of 1978 allows for the appointment of an “independent counsel” to investigate and, if appropriate, prosecute certain high-ranking Government officials for violation of federal criminal laws. Under the Ethics in Government Act, who appointed an independent counsel?

Answer 39

A special committee of the judiciary.

Question 40

Suppose Congress is concerned about workers in the “gig” economy, particularly their being monitored and controlled by their employers and problems with unemployment compensation systems providing them timely benefits. Supporters of the workers introduce a bill in Congress to create a new “Gig Workers Protection Bureau” (GWPB) to protect the rights of gig workers. While the sponsors of the bill have confidence that the current President shares their commitment to gig workers, they fear the future president might not be as supportive. Therefore, they would like the head of the GWPB to be protected from being removed by a hostile President and then replaced by a less sympathetic head. Which of the following structures would most likely survive judicial scrutiny?

Answer 40

Provide that the GWPB be headed by a commission, the three members of which are each appointed by the President and confirmed by the Senate for four-year terms, with the President’s removal power limited to residential removal power to “inefficiency, neglect of duty, or malfeasance in office.”

Question 41

Under the "Compact Theory" of the Constitution,

Answer 41

Any state is free secede from the Union without the consent of the federal government or any of the states.

Question 42

Of the following actions taken by Lincoln in the months following the fall of Fort Sumpter without Congressional authorization, which was most likely within the inherent authority of the President?

Answer 42

Calling 75,000 of the militia into federal service.

Question 43

Which of the following statements about the Emancipation Proclamation and the Thirteenth Amendment is correct?

Answer 43

The Emancipation Proclamation was an executive order issued by President Lincoln on his authority as Commander-in-Chief whereas the Thirteenth Amendment was a constitutional amendment passed by Congress and ratified by the states.

Question 44

Which of the following likely unconstitutional actions did President Lincoln take or authorize during the Civil war?

Answer 44

Ordered detentions without trials and imprisonments without judicial convictions. Suspended the writ of habeas corpus. Ordered wholesale arrests without warrants.

Question 45

Which of the following clauses are contained in the Fourteenth Amendment?

Answer 45

The Privileges or Immunities Clause; the Due Process Clause; and the Equal Protection Clause.

Question 46

Which of the following statements is correct?

Answer 46

After the adoption of the Seventeenth and Twenty-sixth Amendments, women and citizens age 18 and older had a constitutional right to vote.

Question 47

The Establishment clause of the First Amendment says “Congress shall make no law respecting an Establishment of Religion….” suppose a city, concerned that the membership in a historic downtown church had dwindled to such a low level that it was in danger of closing, passed an ordinance declaring the church to be the “official church of the city” and providing a line item in its budget for the church’s support. Plaintiffs with standing sue, contending that the ordinance violates the Establishment Clause. The city attorney responds by saying that the Establishment Clause only prohibits Congress from making laws respecting an Establishment of Religion; it says nothing about cities. Does the city’s argument fail or prevail?

Answer 47

Fail; the Supreme Court applied or incorporated the Establishment Clause to state and local governments in Everson v. Board of Education (1947).

Question 48

Justices Benjamin Cardozo and Felix Frankfurter argued for “selective incorporation” of the Bill of Rights to the states by operation of the Due Process Clause of the Fourteenth Amendment; whereas Justice Hugo Black argued for total incorporation. Which of the following best describes the result of this debate?

Answer 48

While the Supreme Court has followed the Cardozo-Frankfurter approach and selectively incorporated the Bill of Rights by operation of the Due Process Clause, Justice Black's view has prevailed as almost all protections of the Bill of Rights have been incorporated by operation of the Due Process Clause.

Question 49

You are a criminal defense lawyer whose client has been charged by the Marion County prosecutor with capital murder. The prosecutor did not present the case to a grand jury. You moved to dismiss the charges on grounds that the prosecutor has violated the Grand Jury Clause of the Fifth Amendment which provides that, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” Does your argument fail or prevail?

Answer 49

Probably fail because the Grand Jury Clause has not been applied or incorporated to the states; however, because neither the United States Supreme Court nor the Indiana Supreme Court has explicitly held in a modern decision that the Grand Jury Clause has not been incorporated, the judge would have the authority to hold that it has been incorporated and dismiss the charges.

Question 50

The dissenting opinion in the Civil Rights Cases expressed the view that Congress had the power under the Fourteenth Amendment to prohibit racial discrimination in accommodations, public transport, and theaters regardless of race or color. The justice who wrote this dissent was:

Answer 50

John Marshall Harlan.

Question 51

Suppose a facility known as the “public library” in a particular community is actually owned and operated by a non-profit, private foundation, incorporated as the “Community Public Library Foundation, Inc.” The Library is funded almost exclusively by income from an endowment fund established by wealthy citizens of the community in the previous century, although it receives some revenue from grants, rental income from the use of its auditorium, and fines from over-due books. The Library receives no direct appropriation from local government nor does it receive any direct tax revenue. But the Library is located on land donated by the local government to the Library when it was established back in the twentieth century. The Library has a by-law that provides that its services are available to members of, but only members of, “Christian, Jewish, and Islamic faiths.” A group of citizens with standing sue the Library alleging violation of the Entanglement Clause and the Free Exercise Clause of the First Amendment. The Library asked that the lawsuit be dismissed on grounds that it is a private institution and so its discrimination does not constitute “state action.” (Assume that the plaintiffs concede that the Library is not engaged in interstate commerce and that no state or local civil rights law prohibits discrimination by non-profit corporations.) Does the Library’s argument fail or prevail?

Answer 51

Fail; the Library’s discrimination constitutes “state action” because the Library is performing a government function.

Question 52

The State Band and Cheerleading Association (SBCA) is a private, non-profit membership organization consisting of middle-schools and high schools in the state that pay a membership fee to belong. The schools consists of both public schools and private schools and the SBCA periodically conduct competitions for both cheerleading squads and bands. Performing well in SBCA competitions is a matter of great prestige and students on high-performing squads often earn college scholarships as a result. The SBCA has two controversial rules. One is that only girls can participate in the cheerleading competitions. The second is that students who are home-schooled cannot participate in either cheerleading or band competitions, even if they joined together in ad hoc “schools” formed only for the purposes of such competition. A group of citizens with standing sue the SBCA alleging various violations of the Bill of Rights. The SBCA defends on grounds that that it is a private institution and so its discrimination does not constitute “state action.” (Assume that the plaintiffs concede that the SBCA is not engaged in interstate commerce and that no state or local civil rights law prohibits discrimination by non-profit corporations.) Does the SBCA’s argument fail or prevail?

Answer 52

Fail; under Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass'n, the SBCA’s discrimination constitutes “state action”.

Question 53

Justice John Marshall Harlan was appointed to the Supreme Court by President Rutherford B. Hayes. An important historical fact relating to Hayes's appointment of Harlan is:

Answer 53

Hayes, though a Northern Republican, ran on a platform of ending Reconstruction in the South. Appointing a Southerner like Harlan furthered that agenda.

Question 54

Justice Harlan is well known for his dissenting opinions in Civil Rights Cases, 109 U.S. 3 (1883), and Plessy v. Ferguson, 163 U.S. 537 (1896). Which of the following statements best describes Harlan’s position in these two cases?

Answer 54

In both the Civil Rights Cases and Plessy versus Ferguson, Harlan supported expanding civil rights for Blacks.

Question 55

Justice Harlan dissented from the Supreme Court’s decision in Pollock v. Farmers' Loan & Tr. Co., 158 U.S. 601 (1895), which declared the federal income tax passed by Congress to be unconstitutional. Which of the following statements is correct?

Answer 55

Harlan’s position was vindicated when Congress passed and the states ratified the Sixteenth Amendment

Question 56

The most famous example of the use of economic substantive due process was in Lochner v. New York, 198 U.S. 45 (1905). Which of the following statements best describes Justice Harlan’s record in cases involving economic substantive due process?

Answer 56

Justice Harlan’s record in cases involving substantive due process is mixed. On the one hand, he strongly supported economic due process and liberty of contract in Lochner. But he also voted against economic substantive due process in other cases.

Question 57

The foundation of “Substantive Due Process” is which of the following interests protected by the Due Process Clause?

Answer 57

Liberty

Question 58

Which of the following two interests did the Supreme Court balance in declaring unconstitutional a New York statute that prohibited the employment of bakers for more than 10 hours per day or 60 hours per week in Lochner v. New York?

Answer 58

(1) Protecting bakery employees who were otherwise unable to bargain effectively for their labor; (2) Protecting the public health.

Question 59

The State Legislature has adopted the State Manicurist Licensing Act (SMLA), imposing minimum requirements on individuals performing manicures for compensation. The stated justification for the SMLA is that dangerous chemicals are used in manicures. For example, acetone, a nail polish remover, can cause headaches; dizziness; and irritated eyes, skin, and throat. Formaldehyde, a nail hardener, can cause difficulty breathing, including coughing, asthma-like attacks, and wheezing; allergic reactions; irritated eyes, skin, and throat. In fact, formaldehyde can cause cancer. The State Manicurist Licensing Board (Board) has promulgated a regulation requiring any applicant for a manicurist license to present evidence of having taken a high school or higher level Chemistry course and earn a grade of at least B-minus. Pat Cheribon’s high school did not offer Chemistry and Pat has not had the resources to pursue higher education. Pat sues the State, arguing that the SMLA was unconstitutional because it violated a prospective manicurist’s liberty of contract to bargain for and sell labor guaranteed by the Due Process Clause. The State asked that the lawsuit be dismissed on grounds that the statute does not violate the Due Process Clause. Does the State’s argument fail or prevail?

Answer 59

Prevail on the authority Williamson v. Lee Optical

Question 60

On page 538 of our textbook, Chemerinsky begins a discussion of three relatively recent decisions by the Supreme Court involving punitive damage awards: BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), and Phillip Morris USA Inc. v. Williams, 556 U.S. 178 (2009). He places the following heading ahead of this discussion: “The Rebirth of Economic Due Process?” What does Chemerinsky mean by this?

Answer 60

Taken together, the punitive damages decisions signal a willingness by the Supreme Court to impose constitutional limits on government action reminiscent of the earlier age of economic substantive due process.

Question 61

The state legislature has passed the Municipal Convention and Recreational Facilities Act (MCRFA) which authorizes cities within the state to create agencies to construct and operate convention and recreational facilities. The MCRFA specifically authorizes these city agencies to issue bonds to finance convention and recreational facilities. (A “bond” in this context is a contract between the city agency and a financial institution pursuant to which the financial institution will provide funding to the city and the city will repay the funds and otherwise comply with the terms of the bond contract, often called the “Bond Indenture.”) A city establishes an agency pursuant to MCRFA and enters into a Bond Indenture with Shallote Capital Funding Corp. under which Shallote lends the agency $50 million to construct a new convention center in the city. The Bond Indenture contains the following language: “The agency and city agree that the funds provided under this Bond Indenture shall be used to construct a convention center in the city and for no other purpose whatsoever.” The agency is able to complete construction for only $42.5 million and the city council immediately appropriates the remaining $7.5 million to construct badly needed low income housing in the city, specifying that all sale and rental income from the housing project shall be used exclusively to pay off the bonds. Shallote Capital files suit against the city and the agency on several grounds, including that the agency and city have violated the Constitution’s Contracts Clause. The city attorney asks that the constitutional count be dismissed, arguing that while there are genuine issues of material fact as to whether the city breached the Bond Indenture, there is no basis for allowing Shallote Capital’s Contract Clause Claim to continue. Does the city attorney’s argument fail or prevail?

Answer 61

Fail on the authority of United States Trust Co. v. New Jersey

Question 62

Which of the following statements about Penn Central Transportation Co. v. New York City is correct?

Answer 62

Pursuant to a New York City Landmarks Preservation Law, the City denied Penn Central Rail Road Corp., which owned the Grand Central Terminal, a permit to construct a multistory office building above it; when Penn Central sued the City, the Supreme Court held that the restriction against Penn Central did not constitute a "taking" in violation of the Fifth and Fourteenth Amendments.

Question 63

A private corporation purchased land that had a recorded ten-foot electrical utility easement along one side of the property, with a high-voltage power line down the center of the easement. In addition, but unknown to the corporation, the state agency that regulates utilities requires that a builder of any structure of a specified size must ensure there is twelve and a half feet of horizontal clearance between a power line and the building, i.e., a horizontal clearance requirement of seven-and-a-half feet beyond the easement. The corporation subsequently hired an architect to design a building for the property, but the building was designed without regard for the horizontal clearance requirements. As a result, while the planned warehouse would not have intruded upon the easement, it would have been inside the state-mandated horizonal clearance zone. When the corporation sought a building permit, it was told the building could not be built as then designed because the building would encroach upon the horizontal clearance zone. The corporation thereupon sued the state, seeking compensation for the cost of redesigning the building and associated damages. The corporation was alleging that the state had engaged in:

Answer 63

A regulatory taking.

Question 64

The element of a Takings Clause claim that was at issue in Kelo v. City of New London was:

Answer 64

Whether there was a “public use.”

Question 65

In his famous lectures published as “The Common Law,” Oliver Wendell Holmes famously said, “The life of the law has not been logic: it has been experience.” By this, Holmes meant:

Answer 65

The substantive content of law – including judicial decisions – is much more a product of the needs of the time, views of what public policy should be, and even bias and prejudice, then it is of logic and deductive reasoning.

Question 66

Which of the following important jurisprudential doctrines is Justice Holmes most associated with?

Answer 66

Judicial Restraint.

Question 67

In his dissenting opinion in Lochner v. New York, Holmes wrote the following very famous sentence that we did not talk about in class, nor did I mention in the video about him: “The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics." Why did Holmes say this?

Answer 67

Holmes’s reference to “Mr. Herbert Spencer’s Social Statics,” a socio-economic theory that emphasized survival of the fittest, was meant to help emphasize his argument that the Constitution does not embody any particular economic theory.

Question 68

Justice Holmes was what we today would think of as a political conservative, distrustful if not contemptuous of government efforts to improve society. Yet Holmes is generally highly regarded by political liberals of today. Why?

Answer 68

Holmes’s doctrine of judicial restraint helped facilitate the growth of liberal government programs by assuring that the courts would not declare them unconstitutional. Holmes’s views championing the freedom of expression guaranteed by the First Amendment are shared by liberals.

Question 69

Justice Oliver Wendell Holmes once said that the Equal Protection Clause was the “last resort of constitutional arguments.” What did he likely mean by that?

Answer 69

Almost any law can be challenged as discriminating against someone. The Supreme Court was reluctant to use the Equal Protection Clause to invalidate state or local laws.

Question 70

The city had a program where residents of neighborhoods who used septic tanks could join together and have sewers installed at the residents’ expense. The residents could pay for the sewers up-front in one lump-sum, or pay for the improvements over time, with the obligation to pay becoming a lien on their property. A new mayor took office and decided that all neighborhoods in the city should have sewers and those that did not would have them installed at the city’s expense. To simplify the administration of the transition from the old program to the new one, the city simply cancelled the obligations of those residents paying over time, but did not refund the money paid by the residents who had paid up-front. The residents who had paid up-front sued, arguing that the city’s refusal to refund their payments violated the Equal Protection Clause. The city asked that the lawsuit be dismissed on grounds that there was no violation of the Equal Protection Clause. Is the city’s request likely to prevail or fail?

Answer 70

Prevail; rational basis scrutiny is applicable here and the city had a rational basis for not refunding the payments of the residents who had paid up-front.

Question 71

Chief Justice Roger Taney’s majority opinion in Dred Scott v. Sandford held that an Act of Congress called the Missouri Compromise was unconstitutional because it violated the Due Process Clause by depriving slave owners of the ownership of their slave property without due process of law upon entering Minnesota. Taney’s opinion in this regard was an example of:

Answer 71

The exercise of the power of judicial review to declare an active Congress to be unconstitutional first used by the court in Marbury v. Madison. Substantive due process, i.e., in addition to guaranteeing fair process, the Due Process Clause protects individual liberty against certain government actions regardless of the fairness of the procedures used to implement them.

Question 72

We have now seen powerful dissents written by Justice John Marshall Harlan in three cases: the Civil Rights Cases; Lochner v. New York; and Plessy v. Ferguson. His positions in these cases is often viewed with surprise because:

Answer 72

Harlan had been a slave-owner.

Question 73

In Week 5, we saw how almost all of the protections of the Bill of Rights have been incorporated against the states by operation of the Due Process Clause of the Fourteenth Amendment. But there is no Equal Protection Clause in either the original Constitution or the Bill of Rights; and the Equal Protection Clause on its face only applies to the states. Yet in Bolling v. Sharpe, the Supreme Court applied the Equal Protection Clause generally to the federal government. What theory did it use to do so?

Answer 73

The Court said that the Due Process Clause of the Fifth Amendment applies equal protection principles to the federal government.

Question 74

In which of the following cases did the Supreme Court NOT hold racial segregation to be unconstitutional?

Answer 74

Nelson v. City of N.Y., 352 U.S. 103 (1956).

Question 75

The County Park Department has responsibility for five parks within the county: Central Park; Northwest Park; Northeast Park; Southeast Park; and Southwest Park. Central Park consists of approximately 150 acres in the center-most part of the county and has not been improved or even well-maintained in many years. The four other parks, located in the respective corners of the rectangular-shaped county, consist of approximately 1500 acres each, are well-maintained, and offer many amenities. A group of Black, Hispanic, and Burmese-American citizens have filed suit against the Park Department, claiming that it has engaged in unconstitutional racial and national-origin discrimination in violation of the Equal Protection Clause. Acknowledging that the park system does not discriminate on its face and, indeed, has signage at each of its locations proclaiming that it does not discriminate, the plaintiffs nevertheless point out that a very high percentage of Black, Hispanic, and Burmese-American residents of the county live in the center of the county, quite some distance from any of the four “corner” parks, making access to the parks very difficult. The evidence of the practical difficulty that Blacks, Hispanics, and Burmese-Americans have in using the county’s park system is referred to as evidence of:

Answer 75

“Disparate impact.”

Question 76

What happened in Milliken v. Bradley?

Answer 76

After the District Court had found that the Detroit public school district had engaged in intentional racial discrimination and ordered a desegregation remedy that included suburban school districts that had not engaged in discrimination, the Supreme Court refused to allow the remedy to include the suburban school districts.

Question 77

In 1890, Louis Brandeis and his law partner, Samuel Warren, wrote a law review article entitled, “The Right to Privacy,” in which they argued that the law should recognize a tort of “invasion of privacy.” Though never fully embraced by tort law, much of Brandeis’s and Warren’s privacy theory has been incorporated into the Constitution’s protection of a right to privacy. An example of this can be seen in which of the following opinions:

Answer 77

Olmstead v. United States, 277 U.S. 438 (1928) (Brandeis, J., dissenting). Roe v. Wade, 410 U.S. 113 (1973). inappropriateGriswold v. Connecticut, 381 U.S. 479 (1965)

Question 78

Justice Oliver Wendell Holmes and Justice Brandeis express similar but not identical theories of freedom of expression in their respective dissenting opinions in Abrams v. United States and Whitney v. California. Which of the following statements best describes the relationship between their views?

Answer 78

For Holmes, freedom of expression creates a competition among ideas that that is the “best test of truth.” For Brandeis, freedom of expression is indispensable to guaranteeing the continuation of freedom and democracy.

Question 79

In D.C. v. Heller, 554 U.S. 570 (2008), the Supreme Court held that a district of Columbia firearms regulation violated the Second Amendment. Which Justice dissented on grounds that the case could be decided on statutory grounds, thereby avoiding the constitutional question?

Answer 79

Justice Stephen Breyer.

Question 80

Which of the following statements concerning Justice Brandeis’s famous opinion in Erie Railroad v. Tompkins is correct?

Answer 80

Erie, which overruled Swift v. Tyson (1842), held that as a matter of federal constitutional law, federal courts in exercising diversity jurisdiction were required to apply state substantive law.

Question 81

In a famous dissenting opinion, Justice John Marshall Harlan stated: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” The dissenting opinion was in:

Answer 81

Plessy v. Ferguson.

Question 82

Regents of the University of California v. Allan Bakke (1978) was the first time that the Supreme Court spoke about the constitutionality of race-conscious government action designed to assist racial minorities. Who was Allan Bakke, what did he claim, and was he successful?

Answer 82

Bakke was a white male who claimed that he had been denied admission to medical school because of the operation of an unconstitutional “affirmative action” admissions program; the Court ordered that he be admitted.

Question 83

In 2003 and 2023, respectively, the Supreme Court decided higher education “affirmative action” cases, one challenging the admissions program at the University of Michigan Law School and the other challenging the undergraduate admissions program at Harvard and the University of North Carolina (UNC). What was the result of these cases?

Answer 83

The Court upheld the constitutionality of the Michigan Law School's admissions program; but held unconstitutional the Harvard and UNC undergraduate admissions programs.

Question 84

City has a Police & Fire Merit Promotion Ordinance that directs the city’s police and fire departments to promote officers and firefighters strictly on the basis of their performance on an examination to be administered every three years, i.e., officers and firefighters with the highest score gets promoted in order of their scores on the exams. The police department conducts exams for the “merit ranks” of sergeant, lieutenant, and captain. It is important to the police department that Black, Hispanic, Asian, and women officers are promoted to merit ranks. Which of the following practices for conducting “merit exams” would likely pass constitutional muster?

Answer 84

Using an exam constructed by “subject matter experts” from within the department who identify topics for questioning on the exam based on the aptitudes and skills needed for officers of each merit rank

Question 85

In Frontiero v. Richardson, the Supreme Court declared unconstitutional federal statutes that allowed a uniformed serviceman to claim his wife as a dependent regardless of whether she was actually dependent upon, while requiring a service woman claiming her husband as a to demonstrate was in fact dependent upon her. In holding the statutes unconstitutional the Court’s majority deployed the following standard of review:

Answer 85

Trick question; there was no majority opinion in Frontiero.

Question 86

In Mississippi University for Women v. Hogan, the court held that the State of Mississippi’s women-only nursing school:

Answer 86

Was unconstitutional, in part because it reinforced the traditional stereotype the nursing was an inherently female profession.

Question 87

Women have longer life expectancies than men (duh). The State Teachers Retirement Fund Board is charged by state statute with administering the State Teachers Retirement Fund, including calculating benefits to be paid to retired teachers. The contributions made to the Fund in respect of male and female teachers is identical. Expert actuaries employed by the Board recommended one schedule of retirement benefits for women retirees and another for male retirees. According to the schedule, the average male retiree would receive $79.74 more per month than the average female retiree because of the female’s greater longevity. However, the Board rejected the recommendation and instead promulgated a single benefit table for both male and female retirees. A male retiree sued for the larger benefit; the Board asked that the lawsuit be dismissed on grounds that to have adopted different benefit schedules for male and female retirees would have violated the Equal Protection Clause. Will the Board’s position prevail or fail?

Answer 87

Prevail; having separate benefit tables is not substantially related to the achievement of important government objectives and so would be forbidden by the Equal Protection Clause.

Question 88

The leading lawyer in prosecuting gender discrimination cases in the 1970s was Ruth Bader Ginsburg. She later became a Judge on the U.S. Court of Appeals for the District of Columbia and later still a Justice on the Supreme Court. The Presidents who appointed her were:

Answer 88

Jimmy Carter to the Court of Appeals and Bill Clinton to the Supreme Court.

Question 89

Which of the following statements about the Supreme Court’s decisions in Minersville School District v. Gobits, 310 U.S. 586 (1940) (Gobitis), and West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (Barnette), is correct?

Answer 89

In Gobitis, the Court ruled that the First Amendment permitted public schools to compel students to salute the American flag and recite the Pledge of Allegiance despite the students’ religious objections to these practices; in Barnette, the court ruled that the First Amendment protects students from being compelled to salute the American flag or recite the Pledge of Allegiance.

Question 90

In Korematsu v. United States, 323 U.S. 214 (1944), the Supreme Court upheld the interment of Japanese Americans from the West Coast Military Area during World War II over the dissents of Justices Owen Roberts, Frank Murphy, and Robert Jackson. Korematsu was eventually overruled by the Supreme Court in:

Answer 90

Trump v. Hawaii, 585 U.S. 667 (2018).

Question 91

What did Robert Jackson mean in his opening statement at the International Military Tribunal at Nuremberg when he characterized the Nuremberg proceedings as "one of the most significant tributes that power has ever paid to reason"?

Answer 91

While the Nazis had committed the most heinous of crimes and the Allies had all the might and wherewithal summarily to inflict unlimited vengeance, the Allies had chosen instead to try the Nazi leaders and, if found guilty of crimes, punished them through orderly and lawful trial process.

Question 92

In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), Justice Jackson identified three separate categories of presidential action and their respective legal consequences. In Jackson’s view, which of these three categories did he believe President Truman's action seizing the nation's steel mills presented?

Answer 92

When the President takes measures incompatible with the expressed or implied will of Congress, relying only upon his own constitutional powers minus any constitutional powers of the Congress over the matter.

Question 93

Casey Small, M.D., received a notice from the State Medical Licensing Commission that her medical license had been suspended because she had disconnected life-support for a patient in a persistent vegetative state in violation of a state statute in violation of a state statute prohibiting the discontinuation of life-support under any and all circumstances. Dr. Small has appealed her suspension to the local court with appropriate jurisdiction, making two arguments: Argument A: Her suspension was unconstitutional as applied because she had acted pursuant to the explicit directions of the patient’s Living Will and Advanced Medical Directive. Argument B: Her suspension was unconstitutional because it had been ordered without her having received notice or opportunity to appear at a hearing. Which of the following statements is correct:

Answer 93

Argument A is a substantive due process argument; Argument B is a procedural due process argument.

Question 94

The right to marry, the right of parents to custody of their children, and the right of parents to control the upbringing of their children can be thought of as a constellation of rights that together comprise:

Answer 94

A constellation of rights that together demonstrate a substantive due process liberty interest in family autonomy.

Question 95

Dawn and Kirk Winkler have both been deaf from birth, as has been there 10-year-old daughter, Nikki. Dawn and Kirk have elected to raise Nikki in “deaf culture” where she communicates only using American Sign Language in a community consisting entirely of persons experiencing deafness, i.e., Nikki does not attend school. Modern technology is such that Nikki could be fitted with hearing aids and trained to hear and understand spoken English at her local public school, and the hearing aids and instruction will be fully funded through the Individuals with Disabilities Education Act and be at the no charge to Dawn and Kirk. The Department of Child Services has asked the court for an order directing Dawn and Kirk to enroll Nikki at her local public school, accusing Dawn and Kirk of neglect for failing to do so. The court in this case will likely do the following:

Answer 95

Balance the police power of state government to act in the best interests of the child against the substantive due process liberty right of parents to control the upbringing of their children.

Question 96

Consider the following passage: First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the States’ power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. This passage is from:

Answer 96

The joint opinion of Justices O’Connor, Kennedy, and Souter in Planned Parenthood v. Casey.

Question 97

Consider the following statement about the principle of stare decisis or adherence to precedent: “Under the doctrine of stare decisis, . . . precedents are entitled to careful and respectful consideration . . .. But as the Court has reiterated time and time again, adherence to precedent is not ‘an inexorable command.’” This is a quote from:

Answer 97

Justice Alito in Parts II of his majority opinion in Dobbs v. Jackson Women’s Health Org.

Question 98

Chief Justice Roberts wrote a separate opinion in Dobbs v. Jackson Women’s Health Org., concurring in the result of the majority’s opinion. What was the point of chief justice Roberts’s concurring opinion?

Answer 98

He argued that the Court should not overrule Roe v. Wade and Planned Parenthood v. Casey but instead only modify the “bright-line viability rule” and hold Mississippi’s Gestational Age Act constitutional.

Question 99

Justice Thomas’s and Justice Kavanaugh’s respective concurring opinions in Dobbs v. Jackson Women’s Health Org. express views as to how Dobbs will affect other decisions such as Griswold v. Connecticut, 381 U.S. 479 (1965); Lawrence v. Texas, 539 U.S. 558 (2003); and Obergefell v. Hodges, 576 U.S. 644 (2015). What are their respective views?

Answer 99

Justice Thomas calls for “overruling these demonstrably erroneous decisions,” while Justice Kavanaugh said that “overruling Roe . . . does not threaten or cast doubt on those precedents.”

Question 100

What was the issue at stake in Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261 (1990)?

Answer 100

Whether the Constitution prohibited Missouri's requirement of the “clear and convincing” evidence standard in the withdrawal of life-sustaining treatment.

Question 101

Which of the following statements most accurately distinguishes the philosophies of Justice Oliver Wendell Holmes and Chief Justice Earl Warren concerning the subject of judicial review?

Answer 101

Holmes believed that the legislator and not the judge was to have the primary say on the policy considerations; whereas Warren believed that where a constitutional requirement remained unenforced due to governmental inaction, the Court had to step in and act.

Question 102

Which of the following Supreme Court decisions is an example of Chief Justice Warren’s belief that the Court needed to act because the political branches had not acted to vindicate certain constitutional rights and that there was no prospect that the government would act in the future to correct the situation?

Answer 102

Brown v. Board of Education, 347 U.S. 483 (1954), Baker v. Carr, 369 U.S. 186 (1962). Miranda v. Arizona, 384 U.S. 436 (1966).

Question 103

Baker v. Carr, 369 U.S. 186 (1962), brought about a complete overhaul of the nation’s state legislative apportionment schemes based on what principle?

Answer 103

“One person, one vote.”

Question 104

The Administrative Office of the U.S. Courts has compiled for educational purposes a list of 22 “Supreme Court Landmarks”; 9 of those 22 cases were decided during the tenure of Chief Justice Warren. Listed below are four of those "Landmarks." Which one was NOT decided during the tenure of Chief Justice Earl Warren?

Answer 104

Texas v. Johnson, 491 U.S. 397.

Question 105

In which of the following cases did the United States Supreme Court uphold the validity of a firearms’ regulation?In which of the following cases did the United States Supreme Court uphold the validity of a firearms’ regulation?

Answer 105

United States v. Miller, 307 U.S. 174 (1939).

Question 106

Which of the following most accurately describes the burden of proof on the parties when a government regulation of firearms is challenged as violating the Second Amendment?

Answer 106

The government has the burden of demonstrating that the regulation is consistent with the Nation's historical tradition of firearm regulation.

Question 107

Chemerinsky says that, “The right to vote is regarded as fundamental because it is essential in a democratic society; it is obviously through voting that the people choose their government and hold it accountable. And the Supreme Court itself has explained that “[t]he right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”‍ Yet the right to vote is not enumerated in the Constitution but instead has been recognized as a fundamental right by the Court. In which of the following cases did the Court recognize this fundamental right?

Answer 107

Reynolds v. Sims, 377 U.S. 533 (1964).

Question 108

What is the state of American constitutional law with respect to the right of persons convicted of felonies to vote?

Answer 108

Persons convicted of felonies have no constitutionally-protected rights to vote and may be barred from voting both while incarcerated following conviction and following their release.

Question 109

In Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008), the Supreme Court upheld the constitutionality of the so-called Indiana Voter ID law that requires photo identification in order to vote here in Indiana. The justices split into three camps of three justices each. The decision is despite the three-way split, the decision is usually thought to stand for the proposition that the statute is constitutional on its face but still could be subject to being held unconstitutional as applied. Which of the following would be a plausible “as applied” challenge?

Answer 109

Evidence is presented to the Court that the law is being enforced by Indiana election authorities in a way that the only photo identification acceptable was drivers’ licenses and U.S. passports. Evidence is presented to the Court that the law is being enforced by Indiana election authorities only with respect to voters who appear to be younger than 25 years of age, akin to being “carded” at a bar. Evidence is presented to the Court that the only source of acceptable voter identification is a driver’s license or state identification card, that a license or state ID card is only available at a BMV branch, and that all BMV branches are closed from the Saturday preceding and through election day.

Question 110

One of the justifications for the Supreme Court’s holding in Deshaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189 (1989), is that it reflects a deeply entrenched belief that the Constitution is a charter of negative liberties — rights that restrain the government — and not a creator of affirmative rights to government services. In his dissent “Poor Joshua!” dissent, Justice Harry Blackmun took issue with this rationale. His argument in this regard was that:

Answer 110

The Court had improperly engaged in formalistic reasoning by drawing an artificial distinction between action and inaction; once the government began to investigate the case, it had the obligation to do so carefully and competently.

Question 111

As to property interests protected by the guarantee of procedural due process, before approximately 1970, the Supreme Court enforced a distinction between so-called rights and privileges. Rights—usually described as interests protected by the common law—were considered to be protected by the guarantee of procedural due process. Privileges—usually described as interests granted by statute—were not. The Rights-Privileges distinction is generally considered to have been abolished by:

Answer 111

Goldberg v. Kelly , 397 U.S. 254 (1970),

Question 112

Mathews v. Eldridge adopted a three-part test for determining the procedures required before the government can deprive a person of a due-process protected interest. We discussed in class how the court use the Matthews’s test to determine the procedures required before the government can deprive a person of family autonomy rights. Those cases were Santosky v. Kramer, 455 U.S. 745, 769 (1982), Little v. Streater, 452 U.S. 1 (1981), and Lassiter v. Department of Social Services, 452 U.S. 18 (1981). Which of the following statements most accurately reflects the way in which the Matthews’s test was applied in these cases?

Answer 112

In Santosky and Little, the Matthews’s test was applied in such a way that the claimant prevailed and the government was unsuccessful; in Lassiter, the government prevailed and the claimant was unsuccessful.

Question 113

Justice Thurgood Marshall, Charles Hamilton Houston, the NAACP, and the NAACP Legal Defense and Education Fund executed a strategy over the course of two decades to undermine and ultimately overrule the doctrine of “separate but equal” that had been enunciated by the United States Supreme Court in which of the following decisions?

Answer 113

Plessy v. Ferguson, 163 U.S. 537 (1896).

Question 114

In the early 1940s, Marshall represented a client named W. D. Lyons and took his case all the way to the United States Supreme Court. What relief did Lyons seek from the United States Supreme Court?

Answer 114

Lyons sought to have his convictions for having committed a triple murder overturned on grounds that his confession had been unconstitutionally coerced.

Question 115

In 1972, Justice Marshall was in the Court’s majority in Furman v. Georgia, 408 U.S. 238 (1972), that held the death penalty in the United States to be unconstitutional. However, four years later, in Gregg v. Georgia, 428 U.S. 153 (1976), the Court upheld the constitutionality of many states’ revised death penalty statutes. After Gregg, Marshall:

Answer 115

Never voted to affirm a death sentence.

Question 116

In 1987, Justice Marshall published an article in the Harvard Law Review entitled, “Reflections on the Bicentennial of the United States Constitution.” In the article:

Answer 116

Recounted the Founders' acceptance of slavery and the extremely negative consequences to the Nation of their having done so.

Question 117

According to Chemerinsky, there is a voluminous literature debating why freedom of speech should be regarded as a fundamental right. He says, “There is not a single, universally accepted theory of the First Amendment, but rather several different views as to why freedom of speech should be regarded as a fundamental right.” Which of the following is not among the rationales that he sets forth?

Answer 117

Preventing violence.

Question 118

Consider the following two statutes: Statute 101: Billboards are prohibited along interstate highways. Statute 102: No person may use the steps of the Statehouse to make a speech in favor of or opposed to gun control. Which of the following statements is correct?

Answer 118

101 is an example of a content-neutral law; and 102 of a content-based law (content discrimination).

Question 119

Which of the following statements correctly distinguishes between a law that is “vague” and a law that is “overbroad” for First Amendment purposes?

Answer 119

A law is “vague” if it is not clear enough to allow the average person to understand what is allowed and what is prohibited. A law is “overbroad” if it punishes speech that cannot constitutionally be subjected to punishment, even if the law punishes some speech that government does have the authority to punish.

Question 120

Consider the following four decisions of the United States Supreme Court: 101 -- New York Times Co. v. United States, 403 U.S. 713 (1971). 102 -- Near v. Minnesota, 283 U.S. 697 (1931). 103 -- New York Times v. Sullivan, 376 U.S. 254 (1964), 104 -- Simon & Schuster v. Members of the New York State Crime Victims Board, 502 U.S. 105 (1991). In which cases did the Supreme Court find the government guilty of unconstitutional “prior restraint”?

Answer 120

101 and 102.

Question 121

In which of the following Supreme Court decisions did the Court hold that schoolchildren had been unconstitutionally “compelled” by the government to salute the United States flag and recite the Pledge of Allegiance in violation of the First Amendment?

Answer 121

Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).

Question 122

The “clear and present danger” test was originally announced in:

Answer 122

Schenck v. United States, 249 U.S. 47 (1919), in which the defendant’s conviction for speech that violated the Espionage Act was affirmed.

Question 123

Justice Oliver Wendell Holmes and Justice Brandeis express similar but not identical theories of freedom of expression in their respective dissenting opinions in Abrams v. United States and Whitney v. California. Which of the following statements best describes the relationship between their views?

Answer 123

For Holmes, freedom of expression creates a competition among ideas that that is the “best test of truth.” For Brandeis, freedom of expression is indispensable to guaranteeing the continuation of freedom and democracy.

Question 124

The “Brandenburg test” articulated in Brandenburg v. Ohio, 395 U.S. 444 (1969), most closely resembles the approach to speech that incites articulated in which of the following?

Answer 124

Justice Louis Brandeis’s concurring opinion in Whitney v. California, 274 U.S. 357 (1927).

Question 125

As improbable as it seems, another student attending Stanford Law School at the very same time as Sandra Day O’Connor also served on the United States Supreme Court. Who was that Justice?

Answer 125

Chief Justice William Rehnquist.

Question 126

In Planned Parenthood v. Casey, 505 U.S. 833 (1992), which of the following justices did not join with Justice O’Connor in voting to reaffirm the “essential holding" of Roe v. Wade?

Answer 126

Justice Byron White.

Question 127

Starting with Justice O’Connor, six women have served on the United States Supreme Court. What was the partisanship of the Presidents who appointed them?

Answer 127

Two were appointed by Republicans and four were appointed by Democrats.

Question 128

In describing Justice O’Connor’s jurisprudence, many commentators (including Sullivan) said that she devoted herself to careful analysis of the facts and issues presented in each case. Sullivan strongly approves of her resolving the precise issues in front of her one case at a time. However, her “case-by-case, fact-bound approach” is subject to criticism because:

Answer 128

Her approach treats legal doctrine inconsistently which undermines stability and predictability.

Question 129

The United States Supreme Court has extended some constitutional protection to commercial speech. The decision in which it articulated its test to judge the constitutionality of restrictions on commercial speech was:

Answer 129

Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).

Question 130

The United States Supreme Court has upheld some regulation of advertising by lawyers but also struck down some such regulation as an unconstitutional burden on protected commercial speech. Which of the following regulations falls into the former category, i.e., regulation of lawyer advertising held to be constitutional?

Answer 130

Soliciting clients in person. (Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978)0.

Question 131

Which of the following statements most accurately reflects the holding of the famous case of New York Times v. Sullivan, 376 U.S. 254 (1964):

Answer 131

A public official may recover for libel or defamation regarding the official’s official conduct if the official proves the defendant published the libelous or defamatory falsehood with actual knowledge of its falsity or with reckless disregard as to its truth or falsity.

Question 132

The heightened burden facing a plaintiff under New York Times v. Sullivan, 376 U.S. 254 (1964), sometimes requires making a determination of whether the plaintiff is a “public official.” The decision in which the Supreme Court articulate all its test to judge whether a plaintiff is a “public official” was:

Answer 132

Rosenblatt v. Baer, 383 U.S. 75 (1966).

Question 133

In United States v. ­O'Brien, 391 U.S. 367 (1968), the Supreme Court held that expressive conduct is entitled to at least some First Amendment protection but that the government could nevertheless penalize expressive conduct if the test that the court set forth in that opinion was met. Among the requirements of this test is that the governmental interest must be unrelated to the suppression of free expression. As a consequence of this requirement, which of the following statements is true?

Answer 133

The O’Brien test was not applied in Arcara v. Cloud Books, 478 U.S. 697 (1986), because the conduct being regulated was itself not expressive. The O’Brien test was not applied in Texas v. Johnson, 491 U.S. 397 (1989), because the governmental interest necessarily was related to expression.

Question 134

In Buckley v. Valeo, 424 U.S. 1 (1976), the Court held constitutional some provisions of the Federal Election Campaign Act of 1971, as amended in 1974, but struck down others as violating the First Amendment. Which of the following provisions was upheld?

Answer 134

The Act’s compelled disclosure provisions.

Question 135

President Richard Nixon nominated William Rehnquist and what other individual to the Supreme Court in the same announcement in 1971?

Answer 135

Lewis Powell.

Question 136

Why did Justice Rehnquist strive to revise federal habeas corpus procedures in respect of death penalty litigation?

Answer 136

The unlimited availability of federal habeas corpus procedures to challenge death sentences meant that capital litigation never reached closure.

Question 137

In National League of Cities v. Usery, 426 U.S. 833 (1976), in an opinion written by Justice Rehnquist, the Supreme Court for the first time since 1937 invalidated a federal statute enacted by Congress under the authority of the Commerce Clause. What was the rationale or jurisprudential basis for Justice Rehnquist’s decision?

Answer 137

The statute violated the Tenth Amendment.

Question 138

Based on his voting record throughout his tenure on the Supreme Court, Chief Justice Rehnquist in all likelihood would have joined the Supreme Court’s majority opinions in which of the following cases:

Answer 138

Students for Fair Admissions v. President & Fellows of Harvard College, Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 600 U.S. 181 (2023). Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022).

Question 139

When it comes to reporters being ordered to disclose their sources, the Supreme Court has held that:

Answer 139

Reporters are not entitled to any constitutional protection and must disclose their sources if ordered by a court.

Question 140

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), granted a newspaper access to judicial proceedings. Following Richmond Newspapers, the Supreme Court declared unconstitutional all but one of the following statutes or court practices. Which one did it uphold?

Answer 140

A court practice denying press access to information produced in discovery in a civil suit that was covered by a protective order.

Question 141

For purposes of the two religion clauses contained in the First Amendment, which of the following statements concerning the definition of “religion” is correct?

Answer 141

The Court, perhaps mindful of discriminating among religions by defining the term too narrowly, has provided a broad definition of “religion.”

Question 142

In which of the following cases did the Supreme Court enunciate the principle that the Free Exercise Clause cannot be used to challenge a neutral law of general applicability?

Answer 142

Employment Division v. Smith, 494 U.S. 872 (1990).

Question 143

Which of the following best describes the approach taken by the Supreme Court in deciding Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)?

Answer 143

The Court examined the ordinances at issue to see if they constituted a neutral law of general applicability and after concluding that the ordinances were not neutral, applied strict scrutiny to the ordinances and found them to be unconstitutional.

Question 144

In which of the following cases did the Supreme Court hold that prayers or Bible readings in public schools was unconstitutional?

Answer 144

The court held that the prayers or Bible readings in all of these cases was unconstitutional.

Question 145

The Supreme Court held that the Louisiana school aid program at issue in Mitchell v. Helms, 530 U.S. 793 (2000), and the Ohio private school voucher program at issue in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), did not violate the Establishment Clause. Why?

Answer 145

No religious indoctrination that occurs in the schools benefiting from the programs could reasonably be attributed to governmental action.

Question 146

A state’s legislature has enacted each of the following four “education reforms.” In which of the following will the state have to include religious schools?

Answer 146

The state has established a “Higher Education Tax Credit” which state taxpayers are entitled to claim if they pay more than $5000 in tuition to any college or university in the state during a given year.

Question 147

Which of the following describes a major element of Ruth Bader Ginsburg’s strategy on behalf of the Women’s Project Group of the American Civil Liberties Union to attack the constitutionality of gender discrimination

Answer 147

Utilize male plaintiffs who had been the victim of laws or regulations that benefited women over men.

Question 148

The best explanation for why Justice Ginsburg was not as liberal a member of the Court of Appeals as many observers expected is:

Answer 148

She believed in judicial restraint and tried to work with the other branches of government rather than imposed judicial will upon them.

Question 149

Which of the following standards of review did the Court utilize in analyzing the Equal Protection Clause claim in United States v. Virginia, 518 U.S. 515 (1996)?

Answer 149

Intermediate scrutiny.

Question 150

When Justice Ginsburg’s popularity as “Notorious RBG” began to spread, which of the following occurred:

Answer 150

Was the subject of a best-selling book entitled “Notorious RBG.” Was the subject of an illustrated exercise book featuring her workout routine. Was portrayed by Kate McKinnon on “Saturday Night Live.”