City salted wharf so that boats couldn't dock; wharf owner argued it was a taking under the 5th A.

Justice: Marshall

Contested law: upheld

Held: 5th A doesn't apply to the states

Argument: language in 9th/10th ("No state shall...")

Reasoning: If 5th A applied to the states, DP would have to eliminate slavery.  Country not ready

Palko convicted of 2nd degree murder; conviction set aside. State tried to re-try him for 1st degree.  Fed wouldn't have been able to do it (b/c of 5th A prohibition against double jeopardy) - could state?

Justice: Cardozo (1937)

Contested law: upheld

Held: 5th A doesn't apply to states; only the parts of the BofR so rooted in our traditions and conscience to be ranked as fundamental do (double jeo not)

Reasoning: Rejects Palko's argument that 5th A prohibitions are incorporated to states by 14th - 14th sounds procedural; not like substantive rights

Prosecutor made comment about Δ not taking the stand to the jury (not allowed in fed under right against self-incrim).  Could view it as compelling Δ to testify, or just a comment.

Justice: Reed (1947)

Law/issue: upheld

Held: Not all of BofR is incorporated by 14th A (immunity from Prosecutor's comment is not "fundamental")

Reasoning: DP guarantees a fair trial; Δ got a fair trial

DISSENT (Black): Total incorporation necessary to keep judges from using discretion in what is/isn't incorporated.  14th A P&I clause makes it clear that states honor the entire BofR (but still leave small discretion prob - what does BofR mean?)

Duncan convicted of misdemeanor; requested jury trial.  

Justice: White (1968)

Law: overturned

Held: Right to jury trial is fundamental, so it's incorporated

Current incorp status: 2nd/3rd A not incorp; Jury trial right is but not exact (no right in civil suits under $20; GJ only in fed prosecution (CA doesn't do it); Const doesn't say 12 ppl req or unanimity)

LA state statute allowed oligopoly - control of butcher market by a few powerful butchers in one Shouse.  All other houses had to close, and those in control could charge other butchers for use of their Shouse.  Sad butchers sued for violation of 14th A (P&I; DP; Equal Pro)

Justice: Miller (1873)

Contested law: upheld

Held: Purpose of 14th A was to abolish slavery; doesn't apply to butcher's situation (narrowist possible way of viewing 14th A)

Reasoning: Narrow view of 14th A; focus on "P&I."  Term first appears in Art 4, Sec 2: states can't discrim against out-of-staters.  Also doesn't apply here.  Court doesn't deem it necessary to define "P&I", but gives examples: redress grievances, access seaports, peacable assembly, writ of habeas, use navigable waters, etc.

Other views of 14th A Miller could have used:

• Broad: purpose = to have a good country
• Intermediate:  purpose = to protect basic rts

DISSENT (Field): P&I are "natural & inalienable rts;" include the rt to pursue lawful emplymt in a lawful manner (intermediate position - liberty to be a butcher)

CA's welfare system excluded new state residents (<1 yr) - made them seek benefits from their prev. state

Justice: Stevens (1999)

Contested law: overturned

Held: P&I clause protects right to be treated like other citizens of the state if you become a permanent resident 

Reasoning: P&I has always been held to protect this right.  

• Art 4, Sec 2 protects right to be treated as welcome visitor (all P&I of citizens in the several states);  Right to travel.
• State justification isn't enough (saving $$; deterring influx of poor) - rule that discrims against own citizens needs to withstand > rational/intermediate scrutiny
• distinguish b/w divorce/college residency requirements b/c those are "portable" benefits - If recipient can come into the state, get benefit, and leave, state can be more discriminating (not likely to happen w/ welfare)

State law prohibited obtaining ins on LA property from any out-of-state insurer.  Allgeyer was convicted of mailing a letter advising a NY ins co. of a shipment of goods.

Justice: Peckham (1897)

Contested law: overturned

Held: Conviction reversed on DP grounds

Reasoning: State law deprives Δs of liberty w/o DP - 14th A includes liberty of K

(Rise of substantive DP case)

NY law restricted the # of hours bakers could work.  Country was experiencing industrial revolution; bakers would argue they needed to work more hrs to help revolution progress.  Fed min wage/max hr law would prob not pass at this time - no ennumarated power (except commerce clause, and Court struck down similar attempt at child labor restrictions in Hammer v. Dagenhart)

Justice: Peckham (1905) 

Contested law: overturned

Held: There may be freedom of K, but state police powers allow regulation of health, safety, morals, and gen welfare. This ≠ w/in PP b/c of DP clause

Reasoning: Court uses reasonableness std - is this a fair & appropriate use of PP?  No b/c only a remote connection to public safety; real effect of law is to interfere w/ freedom of K. (Implies that unreasonable law ≠ DP)

DISSENT (HOLMES): also uses reasonable test (articulated differently) - problem is w/ Herbert Spencer's social statics (based on survival of the fittest).  Free mkt is just one econ theory; Const does not enact it

DISSENT (Harlan): baking is dangerous and bad for health; Ct can't determine if law is wise, just if it has substantial relation to health

(Rise of substantive DP case)

• One of the most controversial, unpopular decisions
• If it's a constitutional decision, there needs to be something in the constitution to back it up.  But there is nothing (just a lot of econ mumbo jumbo)
• Problem w/ using DP clause to strike down the law:
  • text of DP clause requires procedural fairness, and there was nothing procedurally wrong w/ passage of the law
  • makes it look like the Court was just looking for constitutional hook to hang its hat on

ERs made it a condition of emplymt that applicants had to agree not to join union ("yellow dog" K).  State law made the Ks illegal.

Justice: Pitney (1915)

Contested law: overturned

Held: Law is not a reasonable exercise of police power

Reasoning: Court acknowledges unequal bargaining pwr b/w ER and EE, but says inequality will always be present and must uphold right to K

DISSENT (Holmes): Calls for overturning of Locher - nothing in Const specifically prohibits this type of law.  Using reasonbleness std, argues that some EEs might want to join a union to protect rts (law not unreasonable)

(Rise of substantive DP cases)

State law req'd certificate of convenience & necessity as prereq for entering ice-manufacturing business (like Slaughterhouse, those in control said only certain ppl could enter business)

(1932)

Contested law: overturned

Held: Law = invalid restraint on competition.  Different result from Shouse, although only difference in facts is ice v. meat

(Rise of substantive DP cases)

State law forbade teaching foreign languages to young children.  Teacher convicted of teaching German, which was taboo at the time, to kids.

Justice: McReynolds (1923)

Contested law: overturned

Held: Liberty includes freedom of K, right to engage in occupations, acquire useful knowledge, marry, raise kids, follow religion, and general pursuit of happiness.

Reasoning: Law interferes w/ liberty b/c restricts calling of teachers, students' oppourtnity to acquire knowledge, and parents ability to control kids' education

(Rise of substantive DP cases)

Oregon law req'd public school-only attendance, abolishing private schools.  Could argue due to religious or foreign language aspect of private schools.

Justice: McReynolds (1925)

Contested law: overturned

Held: Like Meyer, this law interferes w/ liberty (ability of parents to raise/educate their kids); state has no pwr to standardize education

Reasoning: This all comes from Lochner - if you accept this result, you have to accept Lochner too.

(Rise of substantive DP cases)

State law set mandatory min/max prices for milk (depression era; farms were failing).  Store owner convicted for selling below min.

Justice: Roberts (1934)

Contested law: upheld

Reasoning: Court articulates new std - if the law has a real and substantial relation to the object sought to be obtained/reasonable relation to a proper legislative purpose, it will be upheld

DISSENT (McReynolds): The law interferes w/ freedom of K

Prof: the law in isolation is unreasonable, but viewed as part of New Deal plan to fix the economy is not.  Have to wait for next step of legislation to judge whether or not farmers will be better off in the end.

(Fall of substantive DP)

Washington state had minimum wage law for women.  Elsie Parrish = chambermaid in hotel; not paid minimum wage so sued for the difference.

Justice: Hughes (1937)

Contested law: upheld

Reasoning: Court uses a reasonable relation std (not the "substantial relation" std used in Nebbia).  Constitution permits restriction of freedom of K where such restriction is reasonable (i.e. protects the public). Hard times and unequal bargaining pwr = reasonable to protect women.

DISSENT (Sutherland): Const doesn't change just b/c of hard times.  Freedom of K is the rule w/ few exceptions.  Min wage law ≠ related to hrs worked/capacity of EE; if EEs need more compensation burden is on ER, not state.

State made it illegal to ship filled milk (milk mixed w/ non-milk fats) across state lines.

Justice: Stone (1938)

Contested law: upheld

Reasoning: Court presumes that there are facts to support the legislative decision, unless the claimed justifications are patently bogus (substantial justification std lowered)

• Ct doesn't cite anything that says filled milk is bad
• But regulation was at least debatable, so sides w/ the legislature

OK law prohibited opticians from fixing glasses w/o a prescription from the optometrist.

Justice: Douglas (1955)

Contested law: upheld

Reasoning: New std set - particular evil at hand + a legislative measure that might correct it 

• Even lower std - now the Ct will only strike down a law where there is no possible way it could be justified

State banned use and sale of contraceptives.  Possible justifications = encourage reproduction; discourage extra-marital sex (no BC = no affairs?)

Justice: Douglas (1965)

Contested law: overturned

Reasoning: Expressly refuses to rely on DP Clause/Lochner.  Instead, finds right to privacy in the penumbras of the BofR

• 9th A: enumeration of rts doesn't deny other rts retained by the ppl (no decision, including this one, relies on this A, but does mention it)
• 3rd, 4th, 5th As: all about protecting privacy in the home
• 1st A: penumbras to 1st A create rt of association

•  

  • Doesn't totally avoid substantive DP b/c BofR incorporated to states thru 14th A
  • Frames privacy not as rt to repro choice, but right to keep marital bedroom safe from police invasion

   

Justice Stone: sets out a theory of when there should be an exception to the "presumption of constitutionality".  Creates a 2-tiered approach: rational review and strict scrutiny

• Legislation appears on its face to be w/in a specific prohibition of the Const, such as the BofR
• Legislation restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation
  • Restrictions on rt to vote; restraints on dissemination of info; interference w/ political organization; prohibition w/ peaceable assembly; etc
  • Post-Lochner theory is that the Court should leave things to the ppl.  But when there is a failure of democratic process, less deference is warranted.
• Statutes directed at particular religious or racial minorities

Baird convicted for distributing contraceptive foam to an unwed person.  Griswold had only struck down the law as to married ppl.

Justice: Brennan (1972)

Contested law: overturned

Reasoning: Court avoided extending fundamental rt of privacy to single ppl; instead decided on Equal Protection grounds.

• Claimed to use minimum rationality std, but analysis was more searching than that
  • Fundamental rt recognized = rt to distribute and use contraceptions (instead of to be let alone in marital bedroom)

Abortion, duh.

Justice: Blackmun (1973)

Contested law: overturned

Reasoning: Right to privacy also found in 14th A concept of liberty - but no matter where it's found, it must include the decision to terminate pregnancy

• Right to abortion = fundamental privacy rt, so restrictions require strict scrutiny
  • SS requires compelling state interest
  • = trimester framework
    • 1st Tri: no compelling interest; no restrictions
    • 2nd Tri: interest in protecting mom's health - state can make health-related regulations (requiring hospital procedure,etc)
    • 3rd Tri: interest in potential life - may prohibit completely, except to preserve life of mom
• PROBLEMS = focusing on "viability;" trimester framework isn't in const and sounds like legislation

State regulation granted Medicaid funding for childbirth, but not for medically unnecessary abortions.

Justice: Powell (1977)

Contested law: upheld

Reasoning: Strict scrutiny not req'd - unequal funding doesn't interfere w/ fundamental rt to abortion

• State hasn't placed any add'l burdens on women that wouldn't be there anyway
• State is free to make value judgment favoring childbirth; just can't unduly burden abortion.  State isn't imposing its will; just encouraging one option

Fed law set funding lmts for Medicaid abortions, barring payments for even many medically necessary abortions (except rape, incest, or where mom's life was in danger)

Justice: Stewart (1980)

Contested regulation: upheld

Reasoning: fundamental rt to abortion ≠ entitlement to full range of protected choices (just b/c she has the choice, doesn't mean gov't must pay for it)

DISSENT (Brennan): this is a case of indigent women + gov't's unequal subsidization of childbirth over abortion and that's discriminatory distribution of benefits, discouraging exercise of fundamental liberties

Court upheld restrictions regarding abortion counseling by any project receiving fed family planning funds.

Justice: Rehnquist (1991)
Contested law: upheld

Reasoning: There is no affirmative rt to gov't aid, even if it involves a liberty the gov't can't interfere w/.

State law barred state EEs from performing abortions and using public facilities for abortions, even if patient personally paid for the service

Justice: Rehnquist (1989)

Contested law: upheld

Reasoning: Same logic of other abortion-funding cases (Rust; Harris; Maher).  Gov't not required to fund a fundamental right; just can't put up barriers to it (might have come out differently if there were no private facilities in teh state)

• Calls for a COMPLETE overturning of Roe (trimester framework is proving difficult for the states; too rigid and no reason why states can't have comepelling interest at all stages)
  • Had 4 votes (RQ; Scalia; White; Kennedy)
    • O'C thought to be the 5th vote, but she said this wasn't undue burden (forshadowing PP v. Casey) - wait until a case directly conflicts w/ Roe to reconsider it

States had set various regulations on abortion, incl: waiting periods; parental consent/judicial bypass; spousal notification or bypass; mandatory reporting

Justice: O'Connor (1992)

Contested law: overturned, kinda

Reasoning: Central holding of Roe affirmed - woman has a right to abortion, but state can restrict that right if compelling state interest shown.

• Didn't want to overturn Roe
  • Ppl have relied on availability of abortion for 20 yrs
  • No legal principal has changed to weaken doctrinal footings
  • But reasoning of sticking to precedent has been criticized
    • Doesn't completely stick to Roe; just central holding
    • "Keep up w/ the times" theory of interpretation argues for partying ways
• REJECTS Roe's trimester framework in exchange for undue burden std: an undue burden exists (making law invalid) if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the pt of viability
  • Waiting period: not a burden
  • Parental consent: not a burden
  • Spousal notification: BURDEN
  • Reporting: not a burden
• Compared to Roe; not a huge difference (trimester v. viability).  Roe may let more in during 1st Tri b/c of complete ban on restrictions.

State law prohibited dilation & extraction abortions w/o providing mom's life exception.

Justice: Breyer (2000)

Contested law: overturned (5-4)

Reasoning: Relied on dist ct's findings that D & X abortions can remove health risks in some cases; law that forbids them might CREATE health risks

Fed law banned late term abortions via the Partial Birth Abortion Ban Act of 2003 - 2nd Tri abortions usually use D & E (dilation & extraction); can be avoided by pulling out whole body at once (which led to this act).  Act bans specific procedure in which fetus is delivered head first, then euthanized while partially outside the mom.

Justice: Kennedy

Contested law: upheld

Reasoning: Under Casey, the Act doesn't impose substantial obstacle to late term abortions; it's just one method of abortion.

• Gov has legit interest in regulating medical profession - promote respect for life
• Response to argument that this is same as D&E (which is allowed): Dr must "kill" fetus after delivery; undermines public's perception of Dr's role in delivery room
• If the ban subjected women to health risks, it would be unconstitutional (Sternberg).  But it's not clear this procedure would ever be necessary
  • This = facial challenge; could still be subject to as-applied challenge if it turns out to be necessary for a particular woman 

State law criminalized blow jobs & sodomy.

Justice: White (1986)

Contested law: upheld (for homo sodomy)

Reasoning: Framed the issue narrowly as whether there is a fundamental rt to homosexual sodomy.  

• Under that narrow view, no DP rt - other privacy cases involved family, marriage, or procreation.
• Applied rational review and held that morality could be sufficient basis for the law - in fact, it's the basis for plenty of laws that haven't been invalidated

State law criminalized only homo sodomy.  Cops responded to a "weapons disturbance" and found 2 guys engaging in sex act.

Justice: Kennedy (2003)

Contested law: overturned

Reasoning: Court admits Bowers was wrong for framing the issue too narrowly.  Analogizes Bowers to a claim that marriage is only about rt to have sex

• Std: rational basis - no legit state interest can justify intrusion into the personal/private life of the individual
  • Same std as Bowers, but opp result
• Looks at history of sodomy laws: points out that bans are very recent (start in '70s)
  • Counter: just b/c they weren't on the books doesn't mean society didn't care
• Looks at Euro views (but notes they aren't binding on our Const): shows how momentum is shifting; Ct doesn't need to tell ppl how they should feel
  • Scalia: can't pick and choose which issues to look outside the box for (what about abortion?)
• J.S.Mill argument: Consenting adults in private, doesn't hurt anyone

Nancy Cruzan was in a severe car accident; left her in a persistant vegetative state.  Family wanted to discontinue her tubal feeding & let her die; state law req'd clear and convincing proof that the patient would have rejected further treatment.  State supreme ct found evidence insufficient & rejected family's wishes.

Justice: Rehnquist (1990)

Contested law: upheld

Reasoning: Compentent person has constitutionally protected interest in refusing treatment; incomp person can't make such choice.  Have to balance indv's interest against state interest in preserving human life; protecting against abuse.  State can establish procedural safeguards to allow someone else to make the choice for the incomp person (protecting state interest).

Std of rev: "in between" - more than rational, but doesn't say this is a fundamental rt

CONCURRENCE (O'C): Can infer liberty interest in refusing unwanted treatment, but that wasn't violated here - it's about surrogate rts.  States should decide; fed should stay out.

DISSENT (Brennan): Right to refuse treatment IS a fundamental rt, state interest does NOT outweigh it.

State law made promoting suicide a crime (knowingly causing or aiding another in attempting suicide).  Specifically exempted "withholding or withdrawal of life-sustaining treatment" at a patient's discretion from definition of "suicide."

Justice: Rehnquist (1997)

Contested law: upheld

Reasoning: Court finds no DP liberty that includes a right to commit suicide w/ assistance 

• Asserted "right" not found in nation's traditions
  • Distinguish from Cruzan - refusing treatment comes from CL (forced medication = battery); actively seeking assistance in suicide is different

NY welfare recipients alleged that officials terminated, or were about to terminate their benefit programs w/o prior notice and hearing, thereby depriving them of DP.

Justice: Brennan (1970)

Contested law: overturned

Reasoning: Benefits are a matter of statutory entitlement and termination may deny eligible recipient of their means to live.  Therefore, recipients must be afforded an evidentiary hearing before termination.

• Questions left open
  • what is req'd in the hearing?
  • what about other gov programs/benefits that don't offer hearings (e.g. VA medical decisions)

Non-tenured teacher hired for 1yr at state university was denied re-hire.  Review policy provided for review for teachers who were dismissed, but not those who were simply not hired back.  

Justice: Stewart (1972)

Contested law: upheld

Reasoning: No entitlement found - DP is a safeguard against deprivation of interests that a person has already acquired in specific benefits (no entitlement; no protection)

• Terms of emplymt did not secure interest in continued emplymt; no statute or university policy securing such interest
• Compare Goldberg: entitlement granted by statute

(Roth companion case): Non-tenured college teacher claimed that the college had a "de facto tenure program" and that he had tenure under that program.

Justice: Stewart (1972)

Contested law: overturned

Reasoning: If there are rules or mutually explicit understandings to support a claim of entitlement, there is a property interest for DP purposes and a DP right to a hearing 

NB: hard to distinguish from Roth; Ct hasn't gone Perry way since (doesn't want to req hearings for every kind of adverse gov't action)

(Procedural DP cases)

Mom had restraining order against her estranged husband; he violated it and abducted/killed their 3 kids.  Sued for violation of DP in failing to enforce RO.

Justice: Scalia (2005)

Contested law: upheld

Reasoning: No property interest in the enforcement of an RO.  No entitlement if it is something the state can grant/deny at its discretion (state law didn't mandate enforcement of ROs).

DISSENT (Stevens): If she had gone w/ private security, she would have property interest in the securty K.  Shouldn't be less just b/c it's the state enforcing her safety.

(Procedural DP cases)

Cops had distributed flyers naming ∏ as an "active shoplifter" but charges were later dismissed.

1976

Contested law/policy: upheld

Reasoning: Reputation ≠ constitutionally protected interest.

(Procedural DP cases)

Fed civil service EE wanted hearing prior to dismissal.  Gov't policy said it could just dismiss.

Justice: Rehnquist (1974)

Contested law: Upheld

Reasoning: Fed law specified grounds for removal and procedure, did not include hearing.  RQ said that was dispositive.

“Good with the bad” approach: there may be a property interest, but it was intertwined with limitations on the procedures to be used in determining that right.

(Procedural DP cases) 

State law stated that civil service EEs could only be terminated for cause and were entitled to post-term admin review of the decision.  EEs claimed the procedure violated DP b/c it didn't provide opp to respond to charges against them before term.

Justice: White (1985)

Contested law: overturned

Reasoning: State law can create a DP entitlement, but once created the procedures for taking it away must be constitutionally adequate ("bitter w/ the sweet" approach)

State procedures for creation of rt aren't the source of removing the right; removal is constitutionally protected - Once it's determined that rt exists, still have to determine whether removal procedure is constitutionally sound

(Procedural DP cases)

DC law auth taking of private prop for purpose of redeveloping blighted urban areas.  After prop was condemned, gov't could lease/sell it to private developers who were req'd to conform to redevelopment plans adopted by a DC agency.

Justice: Douglas (1954)

Contested law: upheld

Reasoning: judiciary has a very narrow role in determining whether eminent domain pwr is being used for public purpose.

• Public welfare = broad/inclusive concept; legislature has pwr to determine what the public purpose is
• STD: very deferential (Like Lee Optical)
  • decided in same era
• Property owners' rights satisfied when they receive just compensation

Hawaii land ownership was super concentrated (72 ppl owned 47% of the land; gov't owned 49%; leaving just 2% for everyone else).  Hawaii Land Reform Act of 1967: tenants living on single-family lots under long-term leases could petition gov't to condemn prop & gov't would then give tenants the opportunity to buy.  Owners sued.

Justice: O'C (unan, 1984)

Contested law: upheld

Reasoning: redistribution meant for public (not private) benefit

STD: law = rationally related to conceivable public purpose

• Purpose: state found that land oligopoly had created deterrents to normal functioning of residential land mkt
  • Regulation of oligopoly and its evils = w/in police pwr
• Xfer of property rts doesn't automatically mean its for private benefit 
  • Court has always rejected literal reading of "public use"

City had a plan to get a large parcel of land together in order to allow Pfizer develop it (create jobs, increase tax basis, revitalize distressed economy).  Bought some land from willing sellers; used eminent domain power to get the rest.  Petitioners weren't holdouts; just wanted to keep land for sentimental reasons.

Justice: Stevens (2005)

Contested law: upheld

Reasoning: no literal reqmt that condemned prop be used for general public; longstanding policy of deference to leg (Berman; Hawaii Housing). Public purpose here (refuses to state econ devolpment is never public purpose).

• Example of unconstitutional taking: One-to-one transfer (taking from Citizen A to Citizen B just b/c B will make better use of it/pay more taxes)

Coal Co. owned land but sold surface rights to individuals. Agreements b/w Coal Co. and indvs said Coal Co. could continue to mine beneath the surface.  State passed a law saying  no mining in a way that could cause subsidence in a structure used for human habitation.  Coal coal sued, claiming law = regulatory taking (regulation diminishes value of prop)

Justice: Holmes (1922)

Contested law: overturned

Reasoning: Regs/takings involve specific houses; no public interest.  Right to mine had been specifically reserved by K b/w Coal Co. & owners; so not w/in polic power to restrict mining.

Std: if regulation goes too far, it's a taking

Act similar to that in PA Coal v. Mahon - law prohibited mining that caused subsidence damage to public buildings, dwellings, and cemeteries (only 2% of coal would have to be left behind, untouched).

Justice: Stevens (1987)

Contested law: upheld

Reasoning: PA Coal not overturned; just distinguished. This law concerns public health; treats mining like a nuisance.  Unlike PA Coal, where all coal was excluded (which was "commercially impracticable"), this only affects 2%.

DISSENT (Rehnquist): Miners still deprived of the entire value of 2%!.  No need to focus on public use - that's a prereq for a gov't taking and doesn't answer whether a taking has occurred 

NY City law had designated the Grand Central Terminal building as a historical landmark.  This req'd the owner to keep the building's exterior in good shape and obtain city commission approval b4 making changes.  Owner wanted to develop the air space and build office space on top of the building.  Claimed refusal was taking w/o just comp.

Justice: Brennan (1978)

Contested law: upheld

Reasoning: law = similar to zoning law: didn't arbitrarily single out a specific parcel - part of comprehensive plan where regs apply to all historical landmarks

• Factors for Ct to consider in reg takings
  • Econ impact of the regulation on claimant/interference w/ distinct investment-backed expectations
  • Character of the gov't action - physical invasion is more likely a taking, rather than public program to promote common good
• Here, owner had exaggerated econ impact b/c he was able to xfer his development rts to nearby parcels (could still build his office, just not on Grand Central)

(Per Se takings rule)

Lucas paid $1 mil for two lots on which he planned to build homes.  State passed act which had the effect of barring Lucas from erecting any permanent habitable structures on his land.  State trial court found that this made Lucas’s land “valueless.”

Justice: Scalia (1992)

Constested law: overturned

Scalia's Rule: regulations that prohibit all economically beneficial use of the land are INVALID.

(Per se takings case)

NY law provided that landlord must permit cable co to install cable wire upon rental property.

Justice: Marshall (1982)

Contested law: overturned

Marshall's rule: a permanent physical occupation is a governmental action of such unique character that it is a taking without regard to other factors that a court might ordinarily examine

Doesn't matter if the action achieves an important public benefit or has minimal econ impact on the owner - still a taking

State financial moratorium during Great Depression - auth relief from foreclosure & execution sales of prop.  Courts permitted to extend the period of redemption from foreclosure sale as equitable, but not beyond 5/1/35.  Mortgagors still had to pay all/reasonable part of fair income or rental value toward taxes, ins, interest, and principal. B obtained order extending redemption period, which modified lender's right to foreclose (which made lenders pissy)

Justice: Hughes (1934)

Contested law: upheld

Reasoning: Emergency doesn't create or increase granted pwr, but may furnish the occasion for exercise of granted pwr.  

• State police pwr may be exercised in directly preventing immediate enforcement of Ks by a temporary and conditional restraint, where vital public interests would otherwise suffer
  • Similar to emergency disaster relief powers
  • K clause is qualified - states continue to possess auth to safeguard vital interests of their citizens 
• STANDARD: conditions upon which the period of redemption is extended must not be unreasonable (aren't here)

Port Authority was established by bi-state

compact and its activities were largely funded by bonds

sold to public. Statutory covenant between NJ and NY had limited the ability of the State Port Authorities to subsidize rail passenger transportation from revenues and reserves. Covenant was designed in part to assure

bondholders that bond revenues would not be used to

finance the usually unprofitable rail operations.  State

tried to repeal that covenant.

Justice: Blackmun (1977)

Contested law: overturned

Std: same as Blaisdell (diff result) - impairment of obligations may be constitutional if it is reasonable & necessary to serve important public purpose

• This is different from a private K (contrast Blaisdell) can't defer to state Leg b/c its own self interest is at stake

MN Private Pension Benefits Protection Act req'd ERs w/ pension plans who terminated the plan and/or closed state office to pay a "pension funding charge" if their pensions were insufficient to finance full pensions for EEs who had worked at lears 10yrs.  Allied closed state office & was charged $185k.

Justice: Stewart (1978)
Contested law: overturned

Reasoning: Law imposes new K obligations on the ER

• ER would have to pay into funding plan if they wanted to leave the state, even if pension had not vested, as if that was the agreement they had made w/ EE
• ERs had no reason to know at the time of formation that pensions could vest under other terms - relied heavily on own K terms when making pension contributions
• not a temporary alteration (contrast Blaisdell); severe, permanent, and immediate change in the relationship

NY law prohibited advertising on trucks except to advertise that truck’s own business (trucks could not “rent out” space to other companies who wanted to advertise – could only advertise for their own business).  Purpose was probably aesthetic concerns and to avoid distractions in the street.  Claimed Equal Pro violation.

Justice: Douglas (1949)

Contested law: upheld

Std: Rational Review (default for Equal Pro) - State may have concluded that trucks advertising own business = less of a distraction than those advertising others

• Don't know if it's true, but if it is, the law has a rational relation to that purpose

Strauder = black Δ; convicted by all white jury b/c state didn't allow black ppl to sit on juries.

Justice: Strong (1880)

Contested law: overturned

Reasoning: purpose of post-Civil War amendments was to secure to the recently-emancipated race all the civil rights the “superior race” enjoys

• Clearly, this law is the kind of discrim the amendments sought to avoid (if white mend were excluded it would be obv violation)
• But states can still prescribe qualifications for jurors: Males, citizens, age, etc
  • NB: a lot of these prob discrim against blacks anyway
• Theory of interpretation = intent: 14th A was meant to prohibit discrim b/c of race OR COLOR (implies that nat'l origin is included)

State law req'd "equal but separate" accomodations for black/white railway passengers.  Plessy had 1/8 African blood (strange case b/c couldn't tell P was black; suggests it could have been test case brought by P (could have announced race to guard) or railway (to overrule and lower expense of sep cars))

Justice: Brown (1896)

Contested law: upheld

Reasoning: Ct agrees that purpose of 14th A is to enforce "absolute equality" but doesn't think it could have been intended to abolish distinctions based on race or to enforce social (not political) cominglings where neither race wants it

STD: Rational relation/reasonable - "We cannot say this law is unreasonable, or more obnoxious to the 14th A than the laws requiring separate schools

• State has always been allowed to separate (segregated schools; anti-micegenation laws - no Brown v. Board or Loving v. VA yet)
• Didn't believe Ct was marking blacks as inferior - if they felt that effect, it was "self-inflicted"

Gaines denied admission to state school b/c he was black.  School offered to set up separate black school and pay for his tuition at an out-of-state school in the meantime.

Justice: Hughes (1938)

Contested law: overturned

Reasoning: state MUST provide Gaines a school that is substantially equal and within the state borders

State had separate law school for blacks, but the black law school was way crappier than the white one.

Justice: Vinson (1950)

Contested law: overturned

Reasoning: The schools didn't offer substantially equal educational opportunities

• Must consider intangible factors: faculty reputation, alumni, standing in the community, prestige, etc
• One effect of the sep/equal distinction: states intent on maintaining segregation did make some efforts to make facilities more equal

Segregation in public schools, duh.

Justice: Warren (Unan) (1954)

Contested law: overturned

Holding: no segregation in public schools; did not overturn all segregation

• Country not ready to say goodbye to anti-micegenation laws
  • Didn't really state std; didn't say b/c this is racial classification it violates equal pro
• Sep but equal not really equal in public school context
  • Social studies on both sides of the argument, but Ct sided w/ young unknown scholar who said segregation at young age in school affected hearts, minds, forever (dolls test)
  • rejected other side's Ivy league scholars

Decided same day as Brown - racial segregation in DC public schools

Justice: Warren (Unan) (1954)

Contested law: overturned

Reasoning: 5th A DP violation; NOT 14th Equal Pro (reverse incorporation b/c of location of case - DC not a state, so 14th doesn't apply)

• But 14th and 5th aren't mutually exclusive
• Discrim might be so unjustifiable as to violate DP rights

• Schools ordered to de-segregate w/ "all deliberate speed"
• school authorities will have primary responsibility for solving the problems, but courts will have to consider whether the schools are acting in good faith
• Use equitable principles – take into account the public interest.  Defendants must make a prompt and reasonable start toward full compliance.
  • Defendants carry burden of establishing that extra time is necessary in the public interest and is consistent with good faith compliance

School implemented "freedom of choice" desegregation plan - kids/parents decided what school to attend.  After three years of operating plan, no white child had chosen to attend the former black school, and about 85% of the black children remained in the all black school.

Justice: Brennan (1968)

Contested reg: overturned

Reasoning: Racial id of the schools remained complete; schools need to convert into a system w/o "black school" and "white school" (just schools).

School district area had been segregated de jure (by law) at the time of Brown.  District adopted a court-approved desegregation plan including geographic zoning and free transfers.  By 1969, about half of black students were in formerly white schools, but the rest attended virtually all-black schools.  After Green, the district was ordered to prepare a more effective plan.  Court appointed its own expert and went with his plan of redrawing district lines and some busing.

Justice: Burger (1971)

Court order: upheld

Reasoning: once there is a violation and a right, court has broad equitable remedies to correct past wrongs

• When there is a history of segregation there is a presumption against schools that are substantially disproportionate in racial comp
• Busing ok as long as it doesn't interfere w/ health or significantly impinge on the educational process
• After duty to desegregate is clear, not necessarily true that communties will remain stable so no year over year duty to reevaluate

Petitioners proved that Denver operated segregated school system.  Defense argued that even tho one part of system was seg, it didn't follow that entire system was.  In the Northern district there was no history of mandated segregation.  Concerns court's ability to enter orders for the entire dist when intentional discrim is only found in part of the dist.

Justice: Brennan (1973)

Contested order: upheld

Reasoning: Court does have jurisdiction over deseg in de facto jurisdictions where purposeful discrim is shown. When a part of a school sys is found to be segregated, it's PF evidence of systematic segregation.  Can be shown by:

• Systematic program of seg affecting a substantial portion of students, schools, teachers, facilities
• Intentional discrim in one area can be probative as to seg in other areas 
• Once shown, burden is on school to show it operates w/o "segregative intent" on a system-wide basis

DISSENT (Rehnquist): Shouldn't req school boards to take affirmative steps to achieve mixing that is not acheived by neutrally drawn boundry lines (doesn't like the inter-district aspect)

Dist ct had ordered inter-district remedies (including busing) after a finding of de jure (by law) seg in Detroit.  Issued an order that included 53 surrounding school districts w/o any finding that there had been de jure seg in any of them.

Justice: Burger (1974)

Contested order: overturned

Reasoning: W/o a finding of inter-district violation, there is no basis for inter-district remedy.

• In order to fashion inter-district remedy w/o violating EP, must show that discrim acts of state/local schools have been a substantial cause of inter-district segregation (systematic claim)
  • E.g. where racially discriminatory acts of one or more districts caused segregation in an adjacent district, or where district lines have been deliberately drawn on the basis of race

Japenese ppl who were placed in internment sued for violated of Equal Pro; claiming the Exec Order for internment was a violation.

Justice: Black (1944)

Contested law: upheld (!)

STD: Strict scrutiny - first case to apply SS to race discrim (but still upholds the law)

All legal restrictions which curtail the civil rights of a single racial group are immediately suspect . . . the court must subject them to the most rigid scrutiny

Reasoning:  Military imperative - some Japanese were a threat, and it was impossible to separate them out from the rest.  Pressing public need/compelling state interest

DISSENT (Murphy): Rational review std is fine, and law doesn't even pass that.  Law relies on assumption that Japanese ppl have tendency to commit sabotage; unreasonable assumption

DISSENT (Jackson): Court shouldn't enforce military order.  Wouldn't have lasted long on it's own, but now the Court has made it constitutional

VA had anti-miscegenation law prohibiting marriage b/w black and white ppl.  State argues that the law applies equally to both races, so no 14th A violation

Justice: Warren (1967)

Contested law: overturned

Reasoning: Rejects state argument; just b/c it's applied to both races doesn't mean it can't violate 14th A.

• SS b/c it is a racial classification - law must be necessary to the accomplishment of some permissible state objective
• Rejects argument about Framers being cool w/ anti-miscegenation
  • Not dispositive; purpose of 14th A = to eliminate all official state sources of racial discrim
  • No legit, overriding purpose to justify the classification

P&S divorced; P got custody of the kids.  She remarried a black dude and state awarded custody to the dad, saying it was "in the best interest of the kids."

Justice: Burger (1984)

Contested law: overturned

Reasoning: Decision clearly about race; outcome would have been different if P had married a white dude.

• Racial classifications are subject to the most exacting scrutiny.  Must be justified by compelling gov't interest that is necessary to the accomplishment of its legit purpose
• Private biases and possible injury on the child are not permissible considerations to remove an infant from custody of natural mother

San Francisco ordinance prohibited operating a laundry in wood buildings without Board’s consent.  Board granted permits to operate laundries in wooden buildings to all but one of the non-Chinese applicants, but to none of about 200 Chinese applicants. Yick Wo was imprisoned for illegally operating his laundry.

Justice: Matthews (1886)

Contested law: overturned

Reasoning: SF didn't dispute the #s; didn't state a reason for the difference.  Can't come to any other conclusion than that the city is being a racist a-hole

DC had testing requirements for cops; larger proportion of black applicants failed than white applicants.  Facially neutral test, but black applicants sued for violation of Equal Pro.

Justice: White (1976)

Contested regulation: upheld

Reasoning: Disparate impact theory isn't enough for a claim of Equal Pro violation (T7 is a sep issue).  For Equal Pro violation, must show a racially discriminatory purpose

• distinction b/w de jure and de facto discrim is purpose/intent
• Courts finds that to rule that a facially neutral statute is discrim w/o evidence of intent would be too far reaching
  • laws always affect different groups differently; court could never change that

Chicago suburb refused to grant request to re-zone property from single-family to multi-family classification when a non-profit develop wanted to build federally-subsidized townhouse units for low and moderate income tenants in a mostly-white suburb.  

Justice: Powell (1977)

Contested law (denial of re-zone): upheld

Reasoning: Ct re-affirmed that laws aren't unconstitutional just b/c of disparate impact.

• If ∏ can show discrim was a motivating factor, burden shifts to Δ to show it would have made same decision w/o impermissible purpose (think McDonnell Douglas)
• Here, burden not even shifted b/c discrim not a motivating factor
  • The suburb had always been zoned as single-family.  This might show they are just keeping it the same as always, but maybe it has always been zoned that way to keep out the minorities (but Ct found nothing suspicious)

State gave absolute lifetime preference to veterans for state civil service positions. 98% of state’s veterans were male, and 1.8% were female.  Women sued for violation of Equal Pro.

Justice: Stewart (1979)

Contested law: upheld

Reasoning: B/c it's a facially neutral law, applies Washington and Arlington for a 2-step inquiry

• Is the classification really neutral (not gender-biased)?
• If not biased, does it reflect invidious discrim?
• Ct found there were legit purposes for the classification, and it wasn't a pretext for discrim
  • discrim of veterans v. non-vets

State gave preference to men when there was a conflict over appointing an administrator of an estate.  State’s reasons were to lessen the load on courts and avoid intra-family conflict.

Justice: Burger (1971)

Contested law: overturned

Std: Purported to use rational review, but overturned law

Reasoning: Framed issues as whether a difference in the sex of competing applicants bears a rational relationship to a state objective

• Said objective was legit; but no RR - legislative choice was "arbitrary"
• But would have been fine under normal Lee Optical std
  • indicates > rational rev

Federal law afforded male armed service members an automatic dependency allowance for their wives; but women in armed services had to prove that their husbands were dependent before they received the allowance.  Women sued for Eq Pro violation

Justice: Brennan (1973)

Contested law: overturned

Reasoning: Brennan argued to define sex as a suspect class (subject to strict scrutiny), but only got 4 votes (plurality opinion - B, White, Douglas, Marshall)

• Implications: if gender-based laws require strict scrutiny, A LOT of classifications might fail
  • military combat, sports teams, bathrooms, etc
• Danger of "watering down" std for race/nat'l origin - making it "less important" if SS is used for more categories

State law forbid sale of “non-intoxicating” 3.2% beer to males under 21, but allowed females 18 and over to buy it.  State’s rationale was safety – found that 2% of males in the 18-20 age range were arrested for alcohol-related driving offenses, but only .18% of females in that age range were.  Equal Pro violation?

Justice: Brennan (1976)

Contested law: overturned

Std: classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives

• New std, somewhere in b/w rational and strict scrutiny
• Found law to be a denial of Equal Pro b/c gender-based difference not substantially related to gov't objective
  • link b/w stats and purpose of law was "too tenuous"

Virginia Military did not allow women – claimed that entire method/effect would be compromised if they had to allow women.  Attempted to set up special institution just for women, but it was not comparable at all.  Eq Pro?

Justice: Ginsberg (1996)

Contested law: overturned

Std: cites important governmental objectives and substantial relation to the achievement of those objectives, but also mentions exceedingly persuasive justification

• Higher than intermediate?  Seems Ct is going to strict, but doesn't so state 
• The women's instutition isn't adequate remedy (Sweatt v. Painter; intangible factors)
• Options for VMI: either privatize, or let women in (tried to privatize, but failed)

State’s statutory rape law punished the male, but not female participant in sexual intercourse where the female was under 18 and not married to the male.  Michael was 17 and female was 16.  Violation of equal pro?

Justice: Rehnquist

Contested law: upheld

Std: Says its intermediate scrutiny (but seems like rational)

Reasoning: State has strong interest in preventing teen pregnancy, but it is hardly unreasonble for a Leg acting to protect minor females to exclude them from punishment

State doesn't have to draw the best line, just one w/in constitutional limits

DISSENT (Brennan): Majority doesn't apply proper equal pro analysis developed since Craig.  Law is designed to further outmoded stereotypes about women's chastity; state has not shown substantial relationship

Mandatory retirement law for state police officers.  Does age classification violate equal pro?

Justice: Per Curiam (1976)

Contested law: upheld

Std: rational review - cops over 50 not a suspect class for purposes of equal pro

Reasoning: Elderly/older people are not a discrete and insular minority that need extra protection – it is a stage of life that we will all reach in normal situation

Dissent (Marshall): doesn’t like the strict/rational bifurcation, wants intermediate scrutiny here too.  Age is not like race discrimination, but there still is discrimination

Colorado constitutional amendment said that homosexuality is not a protected class and cannot be the basis of a claim for discrimination

Justice: Kennedy (1996)

Contested law: overturned

Std: Rational review

• Bowers still the law (anti-sodomy ok); Lawrence not yet decided (overruling Bowers and giving privacy to consenting adults)
• B/c no fundamental interest involved, no suspect class 
  • = rational review
  • BUT law still fails - no rational explanation, can only be explained by hate (think Yick Ho)
• Court dismisses "freedom of association" claims by state - says it isn't a true/legit interest

UC Davis med school reserved 16/100 seats specifically for racial  minorities.  Bakke, white applicant, denied admission although he had higher scores than most of the minority applicants (argument: this AA program is simply a quota)

Plurality (1978)

Contested program: struck down

Opinions: (quota implies reverse discrim)

• Four justices in Stevens group: Title XI prohibits gov programs from discrim on the basis of race; no need to reach constitutional question (whether gov classifications based on race would be prohibited in the absence of statute saying no)
  • If they had to decide Con issue, would probably argue: any government classification based on race gets strict scrutiny; and there is no justification for affirmative action that would satisfy the compelling state interest
• Four justices Brennen group: even if this is racial discrim, there IS a compelling state interest in affirmative action.  Doesn’t matter if a quota or other method is used
  • Would uphold program on intermediate scrutiny
• Powell provides winning vote:(Stevens group concurs in the result): strict scrutiny is required, just like any other racial classification
  • But compensating for past discrimination is not a compelling state interest.  The beneficiaries of aff action are not the ones who were discriminated against
  • “Harvard Plan,” where race is just one factor to further diversity, might be more acceptable

"Twin” U of Michigan cases – undergrad and law school affirmative action plans.  Undergrad was numerical quota, law school was taking race into account to further diversity

(2003)

Court STRUCK DOWN undergrad plan and UPHELD law school plan.

State req'd $1.50 poll tax.

(1966)

Contested law: overturned

Std: Strict Scrutiny

• Where fundamental rights are involved, classifications must be closely scrutinized and carefully confined
  • NOTE: this isn't a DP fundamental rt b/c it can't be exercised at any time.  it's just an ordinary fundamental rt
  • DP fundamental are BofR rights + privacy
• Must have been more than rational – because there is a legit goal and rational relation that dissenters point out – state raises $$, poll tax ensures that the ones who vote are the ones who really care, etc

AL districting scheme was based on the 1900 census; one rep per district but population varied greatly in the districts (as much as 41:1 ratio). Law stated each district got one Rep, and there were to be as many districts as there were Senators.  Voters claimed this discriminated against counties in which the population had grown proportionately far more than the others since 1900

Justice: Warren (1964)

Contested law: overturned

Reasoning: Equal Pro demands no less than substantially equal representation... both houses of a bicameral leg must be apportioned on a population basis.  Ordered that states must draw district lines as close in equal population as practicable

• Hardly seems justifiable to weigh the votes differently just because of where people happen to live
• An individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared to votes of citizens living in other areas
• This is politics and math, and question about whether court should get involved – but where there is denial of a constitutionally protected right, it demands judicial protection

Challenge to districting plan that was characterized as “nothing less than gigantic political gerrymander

Justice: White (1973)

Contested plan: upheld (challenge rejected)

Reasoning: if the plan is within population limits, the Court cannot invalidate it just because it undertakes to recognize political groups

• Political considerations are permissible.  It is unavoidable that the location and shape

PA redistricting scheme done after the 2000 Census; Democrats claimed that it unfairly advantaged Republican candidates

Plurality (2004) 

Contested scheme: upheld (rejected challenge)

Votes:

• Scalia, Rehnquist, O’Connor, and Thomas: would have found that political gerrymandering claims are non-justiciable because no there are no judicially discernible and manageable standards for adjudicating such claims
• Kennedy: provided the fifth vote on the other side to reject this particular challenge, and to find that not all of these claims would be non-justiciable
  • Majority would “not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases
  • This claim was rejected because you cannot just conclude that the political classifications were applied – have to show that the redistricting was done in an invidious manner or in a way unrelated to any legitimate legislative objective

Challenge to MD’s implementation of AFDC, gave max grant of $250/month to families, regardless of size.

Justice: Stewart 

Contested plan: upheld (challenge rejected)

Reasoning: there is a reasonable basis for this classification so it does not violate EP

• Don’t want to strike down this socio/econ regulation – reminiscent of an era when the Court thought that 14^th Am gave it power to strike down laws it thought was unwise/improvident
• Can’t second-guess state officials charged with the responsibility of allocating limited public funds

Contested law: upheld 

No fundamental interest in shelter and possession of home.  only rational review is required for the state’s forcible entry/wrongful detainer procedures for evicting tenants who had not paid rent

Public school funding was based mostly on local area property taxes.  Edgewood School District was the poorer area, taxed itself at 1.5%, and spent $356 per pupil.  Richer area, Alamo Heights, taxed itself at only 0.85%, and spent $594/pupil

Contested law: upheld

Std: Rational review

• No suspect class
  • In other wealth-related cases, the result was that the group was absolutely deprived of a meaningful opportunity to enjoy a benefit. Not the case here
  • Also, the poorest families are not necessarily clustered in the poorest property districts
• No fundamental interest in education
  • Court does not agree that education is necessary for other rights such as voting and free speech.  Furthermore, the students are not being denied an education!  This argument could go too far, and could create a fundamental right in food, clothes, housing, etc
  • Court won’t interfere w/ the way a state legislature has chosen to allocate expenditures.  State doesn’t have to come up with the very best funding system

State law denied funding to education of illegal immigrant children.  Local school districts were authorized to deny enrollment to such children

contested law: overturned

Std: rational review

• illegal aliens not suspect class; edu still not fundamental rt