Documentos de Académico
Documentos de Profesional
Documentos de Cultura
McCulloch v. Maryland (1819)
Bank 1816 by Congress
Do they have the power to create it?
Do they have the power to tax Maryland?
John Marshall (Congress, VA)
Unanimous
"Let the end be legitimate, let it be within the scope of the constitution, and all means
which are appropriate, which are plainly adapted to that end, which are not prohibited,
but consist with the letter and spirit of the constitution, are constitutional."
Congress ratified, president ratified – their interpretations of the constitution
NatSec argument for bank
Quotes Hamilton in opinion that
“[A] criterion of what is constitutional, and of what is not so ... is the end, to
which the measure relates as a mean. If the end be clearly comprehended within
any of the specified powers, and if the measure have an obvious relation to that
end, and is not forbidden by any particular provision of the Constitution, it may
safely be deemed to come within the compass of the national authority. There is
also this further criterion which may materially assist the decision: Does the
proposed measure abridge a preexisting right of any State, or of any individual?
If it does not, there is a strong presumption in favour of its constitutionality....”
Constitutional Structure
The Judicial Power
Judicial Review
Stuart v. Laird (1803)
Paterson op.
All but Marshall who was new
A week after Marbury
1801 added midnight circuit justices to preserve Federalist power… can they be removed
from lifetime tenure in a repeal of the act in 1803?
Removed 1 SCOUTS seat, added circuit judges – appointed in the month before turnover
of power
Held – Congress has power to add/remove
Marbury v. Madison (1803)
Marshall op.
Unanimous
Federalist Jefferson defeated Adams
Judiciary act commissions from midnight justices had to be delivered
James Madison, Secretary of State
Marbury awaiting commission
Finesse –
Federalist 78 already had the notion of judicial review
Antifederalists complained that the constitution allowed judicial review, so it must have
been understood
For every right there must be a remedy – used heavily
3 questions:
o Did Marbury have the right to the commission? Yes
o Is there a remedy? Yes
o Is asking SCOTUS for mandamus the correct remedy? No
Was a rebuke to Jefferson without overriding him
Baker v. Carr (1962)
Justiciability
Is redistricting beyond the courts as a political question?
Shelby County! Districts highly favored rural constituents
Reargued as it was so contentious
Preface to Reynolds v Simms with an informal “one person, one vote” standard
William Brennan op. (joined Warren, Black, Douglas, Clark, Stewart)
Dissent: Frankfurter, Harlan (the 2nd)
Wikipedia – ‘Brennan reformulated the political question doctrine, identifying six factors to help
in determining which questions were "political" in nature. Cases that are political in nature are
marked by:
1. "Textually demonstrable constitutional commitment of the issue to a coordinate
political department;" as an example of this, Brennan cited issues of foreign affairs and
executive war powers, arguing that cases involving such matters would be "political
questions"
2. "A lack of judicially discoverable and manageable standards for resolving it;"
3. "The impossibility of deciding without an initial policy determination of a kind
clearly for nonjudicial discretion;"
4. "The impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government;"
5. "An unusual need for unquestioning adherence to a political decision already
made;"
6. "The potentiality of embarrassment from multifarious pronouncements by
various departments on one question."”
Frankfurter dissent – “Appellants invoke the right to vote and to have their votes counted. But
they are permitted to vote and their votes are counted. They go to the polls, they cast their
ballots, they send their representatives to the state councils. Their complaint is simply that the
representatives are not sufficiently numerous or powerful.”
Powell v. McCormack (1969)
Powell (African American) was elected again after a scandal
Congress refused to seat him
Holding: Congress can’t add to eligibility criteria
Congress can only judge ‘members’, Powell wasn’t yet a member, for which they can
expel, but that requires a higher bar
Appealed to core democratic aim of constitution
Warren op. (Black, Harlan (2nd), Brennan, White, Marshall, Douglas)
Dissent: Stewart – the case was moot as he had been seated (what about backpay?)
Civil Rights Cases (1883)
Bradley, Waite, Miller, Field, Woods, Matthews, Gray, Blatchford
Harlan (1st) in Dissent
Holding: Congress can’t regulate private affairs and so can’t legislate against
segregation and discrimination
Led to Jim Crow laws
Reversed sub silencio in 1937 and by the Civil Rights Act of 1964
Coleman v. Miller (1938)
Hughes op. (Roberts, Black, Reed, Frankfurter, Douglas)
Dissent: Butler (McReynolds)
Is there a time limit to amendment ratification?
Holding: No and Congress is ultimately the arbiter of this question
Voting Rights Act of 1965
Lyndon B Johnson
Applies to some states more harshly to force fair voting
Certain jurisdictions must have voting law changes reviewed
Outlaws literacy tests
Shelby County struck down the coverage formula
Responsive to Civil Right Act of 1964 that didn’t go far enough
Response to Selma (location) protests and violence
Lyndon B. Johnson: Special Message to Congress (the American Promise) (1965)
Called for voting rights legislation
Ended with “we shall overcome”
South Carolina v. Katzenbach (1966)
Earl Warren op. (Douglas, Clark, Harlan (2nd), Brennan, Stewart, White, Fortas
Dissent: Black
Did the VRA prohibition on voting tests impinge on state sovereignty?
Held: No, this is a response via the 15th amendment
Katzenbach v. Morgan (1966)
Brennan op. (Warren, Black, Clark, White, Fortas, Douglas)
Dissent: Harlan (Stewart) – argued Congress could not add substance via interpretation
of 14th amendment
Can Congress add protected rights?
Specifically, can Congress prohibit literacy tests in voting under the 14 th
Holding: Yes – Congress can add rights, but not take them away
Modified in Boerne
Jones v. Alfred Mayer (1968)
Stewart op. (Warren, Black, Douglas, Brennan, Fortas, Marshall)
Dissent: Harlan (White)
Holding: Congress can prohibit discrimination in the housing market
Wiki Reversing many precedents, the Supreme Court held that the Civil Rights Act of 1866
prohibited both private and statebacked discrimination and that the 13th Amendment
authorized Congress to prohibit private acts of discrimination as among "the badges and
incidents of slavery." Congress possessed the power to "determine what are the badges
and incidents of slavery, and the authority to translate that determination into
effective legislation."
Oregon v. Mitchell (1970)
Black op. (Douglas, Brennan, White Marshall)
VRA amendments of 1970 required registration of 18 year olds as voters
Holding: Can set requirements for federal elections but not state elections
Led to 27th Amendment
City of Rome v. US (1980)
Thurgood Marshall op. (Burger, Brennan, White, Blackmun, Stevens)
Georgia changed voting rules, refused to follow VRA
Can Congress overrule local voting?
Holding: Yes, appropriate under 14th and can even do so if do evidence of prior violation
US Term Limits v. Thornton (1995)
Stevens op. (Kennedy, Souter, Ginsburg, Breyer)
Dissent: Thomas (Rehnquist, O’Connor, Scalia)
Can states impose stricter requirements than the constitution on eligibility for
Congressional election? (4 term limit to appearing on ballot)
Holding: No
Invalidated 23 states’ laws!
Dissent: It’s the state’s people choosing the eligibility so it’s democratic
City of Boerne v. Flores (1997)
Kennedy op. (Rehnquist, Stevens, Thomas, Ginsburg, Scalia)
Dissent: O’Connor, Souter, Breyer
Holding: State RFRA unconstitutional, Congress can’t add substantive new rights via
14th, see Katzenbach dissent
The holding of Boerne said that only the Court could interpret the Constitution, in order to
maintain the "traditional separation of powers between Congress and the Judiciary." Also,
Boerne relied on arguments for protecting the rights that pertain to state governments[9] based
on "enumerated powers." The intent of Boerne was to prevent "a considerable congressional
intrusion into the States' traditional prerogatives and general authority." The holding of Boerne
specifically mentioned the state action doctrine of the Civil Rights Cases as a Court
interpretation of the Equal Protection Clause that limits the "remedial or preventive" power of
Congress.
United States v. Morrison (2000)
Rehnquist op. (O’Connor, Scalia, Kennedy, Thomas)
Dissent: Souter (Ginsburg), Breyer
Holding: Violence Against Women Act unconstitutional
Impinges on a state problem that doesn’t cross state borders
Can’t be upheld under commerce power (no crossing state lines)
Can’t be upheld under 14th (acted against private persons)
Shelby County, Alabama v. Holder (2013)
Roberts op. (Scalia, Kennedy, Thomas, Alito)
Dissent: Ginsburg (Breyer, Sotomayor, Kagan)
Holding: VRA coverage formula unconstitutional as it’s based on outdated data
Hated by Amar
Argued that it discriminates against some states (but what about relief bills? Highway
bills?)
Court ignored evidence
Roberts used incorrect evidence
United States v. Cox (1965)
Certiorari denied
US Attorney held in contempt for refusing to indict
Refused to indict because of racism
Holding: Executive discretion to decide to prosecute or not
United States v. Nixon (1974)
Berger op. (Douglas, Brennan, Stewart, White, Marshall, Powell, Blackmun)
Rehnquist recused as he was prior AG
Did Nixon have to turn over the tapes or was it protected by executive privilege?
Holding: Immunity is not unqualified – has to be related to function of the executive
In re Sealed Case (1988)
Is the Ethics in Government Act unconstitutional?
Holding: violates Appointments clause – yes.
TODO
Morrison v. Olson (1988)
Rehnquist op. (Brennan, White, Marshall, Blackmun, Stevens, O'Connor)
Dissent: Scalia
Olson – Assistant AG for OLC
Morrison – Independent Counsel
Olson argued that Independent Counsel Act created a 4th unconstitutional branch,
outside of the executive
Wiki Scalia: Justice Scalia, the lone dissenter, said that the law should be struck down
because (1) criminal prosecution is an exercise of "purely executive power" and (2) the
law deprived the president of "exclusive control" of that power.
Edmond v. United States (1997)
Scalia op. unanimous
What is an inferior officer?
Military court had officers appointed by GC of Dept. of Transportation, affirmed by
Secretary of transport
Are these compliant with the appointments clause? Yes
Immigration and Naturalization Service v. Chadha (1983)
Burger op. (Brennan, Marshall, Blackmun, Stevens, O'Connor, Powell)
Dissent: Rehnquist, White
Legislative veto of INS decisions is unconstitutional (breaches separation of powers)
Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina
from the Federal Union (1960)
Lincoln, First Inaugural Address (1861)
Lincoln, Special Session Message (1861)
Prize Cases (1863)
Grier op. (Wayne, Swayne, Miller, Davis)
Dissent: Nelson, Taney, Catron, Clifford
Lincoln instituted Naval Blockade precivil war
Holding: US was at war with belligerents, executive had war power
Dissent: Declaring war is power of congress
Ex Parte Merryman (1861)
Could the president suspend habeas corpus?
Lincoln suspended it in a limited fashion in Maryland for purposes of war
Merryman was destroying bridges and so held
Taney issues the writ and an opinion but wasn’t clear under which court
Lincoln didn’t comply with Taney
Congress eventually endorsed Lincolns actions expost
Lincoln offered amnesty to the prisoners in return for not aiding the confederacy further
Lincoln, Emancipation Proclamation (1863)
Gettysburg Address (1863)
Executive Order (1950): Youngstown
Youngstown Sheet and Tube Co. v. Sawyer (1952)
Black op. (Black, Frankfurter, Douglas, Jackson, Burton, Clark)
During the Korean War Truman issued an EA seizing the nation’s steel mills to avert a
strike
Holding: President does not have power to seize private property
Mixed opinions on what the extent of Presidential power really is
NLRB v. Noel Canning (2014)
Unanimous op. Breyer
Obama recess appointed NLRB board members after a mini abnormal Congressional
session that just met the bare minimum
Was this a valid recess?
Holding: No, need a minimum of ten days
Bush v. Gore (2000)
Per curiam (Rehnquist, O’Connor, Scalia, Kennedy, Souter, Thomas, Breyer)
Equal protection controversy
After the election Gore requested manual recounts of the vote due to the close nature
Holding: Later vote scheme violated equal protection as the later recount devalued votes,
further counting later at all was violative (See Amar for why this is silly)
‘Not precedential’
Ginsburg and Stevens dissented that the later recount was violative as time should be
afforded for constitutional rights, (and that the Florida Supreme Court ought to be
respected)
Federalism
Gibbons v. Ogden (1824)
John Marshall op. (Marshall, Washington, Johnson, Todd, Duvall, Story)
Does the commerce clause give Congress power to regulate interstate navigation?
Holding: Obviously yes
Champion v. Ames (1903): The Lottery Case
1895 law that prohibited sending lottery tickets interstate
But they weren’t being ‘sold’ interstate
Note that Amar thinks that this highlights the wrong part of interstate, it shouldn’t be
about the objects, rather about the type of problem posed
In a 5to4 decision, the Court held that lottery tickets were indeed "subjects of traffic," and that
independent carriers may be regulated under the Commerce Clause. The Court emphasized the
broad discretion Congress enjoys in regulating commerce, noting that this power "is plenary, is
complete in itself, and is subject to no limitations except such as may be found in the
Constitution."
Hammer v. Dagenhart (1918)
William R. Day op. (White, Holmes, Van Devanter, Pitney, McReynolds)
Dissent: Holmes (McKenna, Brandeis, Clark)
Overruled later by Darby Lumber
Holding: Direct child labor laws unconstitutional as they’re not part of interstate
commerce
Dissent: Goods were sold interstate, this causes a prisoner’s dilemma
Bailey v. Drexel Furniture Co. (1922): Child Labor Tax Case
Taft op. (McKenna, Holmes, Day, Van Devanter, Pitney, McReynolds, Brandeis)
Dissent: Clarke
Holding: Child labor tax ruled unconstitutional, it’s a penalty disguised as a tax
Hill v. Wallace (1922)
Taft op.
Imposed a tax so high that forced futures contracts into the untaxed regulated market
Found unconstitutional
So Congress regulated it and it was found constitutional
Missouri v. Holland (1920)
Holmes op. (White, McKenna, Day, McReynolds, Brandeis, Clarke)
Dissent: Van Devanter, Pitney
Schechter Poultry Corp v. US (1935)
Unanimous by Hughes
National Industrial Recovery Act delegated to the President the power to implement and
devise industrial codes
Was this an unconstitutional delegation?
Holding: Yes – the Act didn’t set the standards, but completed delegated all power
Holding: Also didn’t concern interstate commerce
Part of Roosevelt’s New Deal
Partially anticentralization
Cardozo in concurrence notes he prefers a scale of direct v indirect to determine
interstate nature
Carter v. Carter Coal Co. (1936)
Sutherland op. (Van Devanter, McReynolds, Butler, Roberts)
Taxed coal under the commerce power, setting standards etc.
Holding: Unconstitutional as it’s not actually interstate – the fact that the coal
eventually moves interstate doesn’t make the mining interstate
US v. Butler (1936)
Roberts op. (Hughes, Van Devanter, McReynolds, Sutherland, Butler)
Agricultural Adjustment Act taxed commodities, attempting to solve crisis
Holding: Unconstitutional, reserved to states – taxation is legitimate but the end was
unconstitutional
New Deal
FDR Fireside Chat (March 9, 1937)
FDR calls out the court for ruining the New Deal and acting as a policy making body
Plan to add mandatory retirement to court
NLRB v. Jones and Laughlin Steel (1937)
Hughes op. (Brandeis, Stone, Roberts, Cardozo)
Dissent: McReynolds (Van Devanter, Sutherland, Butler)
Hughes changed
End of striking down of New Deal
NLRB Act of 1935
Dissent: Not direct and materially interstate
"Although activities may be intrastate in character when separately considered, if they have
such a close and substantial relation to interstate commerce that their control is essential or
appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied
the power to exercise that control."
FDR, Address on Constitution Day, Sept 17, 1937
Heralded an era of presidential power
Began the era of the Roosevelt court
United States v. Darby Lumber Co. (1941)
Unanimous by Harlan Fisk Stone
Is the Fair Labor Standards Act? Regulated child labor, working conditions etc
Overruled Hammer v Dagenhart
Oyez The unanimous Court affirmed the right of Congress to exercise "to its utmost extent"
the powers reserved for it in the Commerce Clause. Relying heavily on the Court's decision in
Gibbons v. Ogden (1824), Justice Stone argued that the "motive and purpose of a regulation of
interstate commerce are matters for the legislative judgment . . . over which the courts are
given no control." Congress acted with proper authority in outlawing substandard labor
conditions since they have a significant impact on interstate commerce.
Wickard v. Filburn (1942)
Unanimous by Robert H. Jackson
Farmer was given land under a congressional allotment scheme for wheat
Harvested above his quota allotment
Claimed that as he didn’t intend to sell, couldn’t be regulated under interstate commerce
Holding: Substantial connection to interstate commerce is sufficient
Sonzinsky v. US (1937)
Stone op.
National Firearms Act taxes dealers
Is it a tax or a penalty?
Holding: It’s a legitimate tax
Steward Machine Company v. Davis (1937)
Cardozo op. (Hughes, Brandeis, Stone, Roberts)
Dissent: Butler, Sutherland &Van Devanter, McReynolds
Social Security Act incentivized states to add unemployment compensation through a
taxation scheme
Cardozo: “Every tax is in some measure regulatory”
Dissents: It’s a threat
Civil Rights
Civil Rights Act of 1964
Outlawed discrimination for racial categories and a few others
Enforcement initially very weak
Prohibits some manner of voter discrimination
Originally proposed by JFK, filibustered, LBJ eventually passed it
Heart of Atlanta Motel v. U.S. (1964)
Clark op. (Warren, Heart of Atlanta Motel v. U.S., Harlan (2 nd), Brennan, Stewart,
White, Goldberg, Black)
Motel refused to rent to black patrons
Motel predominantly served out of state patrons
Holding: Perfectly constitutional
Katzenbach v. McClung (1964)
Unanimous by Clark
Ollie’s BBQ refused to serve blacks
Holding: It’s interstate commerce as it serves travelers
Commerce Power
National League of Cities v. Usery (1976)
Rehnquist op. (Burger, Stewart, Blackmun, Powell)
Dissent: Brennan (White, Marshall), Stevens
Can the fair labor act apply to state and local governments?
Holding: Can’t regulate state government functions as this is violative of 10 th
amendment and structure of federalism
Blackmun concurrence: Use a balancing test to discern how important the state v
government functions are – later decided it was unworkable
Garcia v. San Antonio Metropolitan Transit Authority (1985)
Blackmun op. (Brennan, White, Marshall, Stevens)
Dissent: Powell (Burger, Rehnquist, O’Connor)
Overturned National League of Cities
Can Congress regulate minimum wage etc. for employees of state/local governments?
Holding: Yes – commerce clause
Dissent: Powell says this is a structural breach of federalism, 10th amendment
Dissent: O’Connor recognizes that commerce clause has now become a clause of general
power due to economic developments, but was this necessary and proper (invoking 1930s
and 1940s)?
High watermark of Commerce Clause Power
Blackmun flipped
Left states’ rights to the political process
Gregory v. Ashcroft (1991)
O’Connor op. (Rehnquist, White, Souter, Kennedy, Scalia)
Missouri has mandatory judicial retirements, Congress has prohibited age
discrimination
Holding: Congress’ act can’t apply, require explicit indication in the act if they’re going
to override state sovereignty in their state functions – constitutional avoidance
‘Elected’ ‘Policymaking’
US v. Lopez (1995)
Rehnquist op. (O’Connor, Scalia, Kennedy, Thomas)
Dissent: Breyer (Ginsburg), Stevens, Souter
Congress regulated gun free schools
Breyer claims education is interstate
Dissenters focus on ‘rational basis’ of congress
Holding: Not an economic or interstate activity, not commerce – unconstitutional
Reigned in Garcia
National Federation of Independent Businesses v. Sebelius (2012): The Obamacare Case
Roberts op. (Ginsburg, Breyer, Sotomayor, Kagan)
Dissent: Scalia (Kennedy, Thomas, Alito), Thomas
Individual mandate
Holding: Constitutional under tax power
Some hold under commerce power, necessary and proper
National security argument from Amar
Dissent: was really a penalty disguised as a tax (What about Steward v Davis?)
Thomas disagrees with the substantial effects test
United States v. Comstock (2010)
Breyer op. (Roberts, Stevens, Ginsburg, Sotomayor, Alito, Kennedy)
Dissent: Thomas (Scalia)
Can the government require further ‘commitment’ (confinement) of federal prisoners
post sentence for safety reasons?
Holding: Yes
Wiki The Court said: "We base this conclusion on five considerations, taken together." The five
considerations are as follows.
First, the Necessary and Proper Clause grants Congress broad power to enact laws that
are "rationally related" and "reasonably adapted" to executing the other enumerated
powers.
Second, the statute at issue "constitutes a modest addition" to related statutes that have
existed for many decades.
Third, the statute in question reasonably extends longstanding policy.
Fourth, the statute properly accounts for state interests, by ending the federal
government's role "with respect to an individual covered by the statute" whenever a
state requests.
Fifth, the statute is narrowly tailored to only address the legitimate federal interest.
Bond v. US (2011 & 2014)
Unanimous op. Roberts
Woman poisoned a friend – does an international chemical weapons treaty act by
Congress apply?
Roberts: Congress must make it explicit when it intends for a treaty to apply to state
affairs
Scalia concurrence: treaties can’t regulate purely domestic affairs
"The global need to prevent chemical warfare does not require the Federal Government to reach
into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment
of a chemical weapon." Roberts
New York v. US (1992)
O’Connor op. (Rehnquist, Scalia, Kennedy, Souter, Thomas, White, Blackmun, Stevens)
Radioactive Waste act provided incentives for states to deal with their own waste
They were taxed, disallowed to transport, and eventually forced to take title of waste in
their state
Holding: Take title was coercion and not encouragement and not a ‘proper’ use of
commerce power – violating federalism
Printz v. US (1997)
Scalia op. (Rehnquist, O’Conner, Kennedy, Thomas)
Dissent: Stevens (Souter, Ginsburg, Breyer)
Brady Handgun Act requires the head of local law enforcement to do gun background
checks
Holding: There’s no explicit text, but constitutional structure would make this
unconstitutional
Dissent: Cooperative federalism, commerce clause & necessary and proper
Constitutional Rights
Fletcher v. Peck (1810)
Unanimous op. John Marshall
Lands were given by Congress in return for bribes, those tracts were then resold.
Can Congress void those contracts?
Holding: No – contracts clause applies even if contract was illegally secured
Dartmouth College v. Woodward (1819)
Marshall op. (Washington, Livingstone, Story)
Dissent: Duvall
Can the state of NH take control of Dartmouth, contrary to the charter issued by the
King?
Holding: No, it was a contract and contracts clause
Sturges v. Crowninshield (1819)
Unanimous Marshall op.
NY passed a law that applied retroactively to debts
Holding: Unconstitutional under contracts clause
Ogden v. Saunders (1827)
The only John Marshall dissent
Saunders wanted contract payment, Ogden claimed bankruptcy defense in NY
Holding: Contracts clause doesn’t prevent laws modifying future contracts. Found for
Ogden
Calder v. Bull (1798)
Law was changed to allow a will case to be reargued
Holding: expost facto clause applied to criminal and not to civil matters
Holding: Judicial review against state laws by SCOTUS
Barron v. Baltimore (1833)
Unanimous John Marshall op.
The city of Baltimore destroyed a private wharf through their actions
Does the 5th amendment apply to states? Or any of the bill of rights?
Holding: No
Superseded by 14th Amendment and incorporation
9th Amendment
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.”
Slaughterhouse Cases (1873)
Miller op. (Clifford, Strong, Hunt, Davis)
Dissent: Field (Chase, Swayne, Bradley)
Butchers were zoned, partially out of health concerns, partially out of racial animus
Holding: 14th amendment protects only privileges and immunities of citizenship of the
USA – not rights endowed by states
“This statute is denounced [by the butchers] not only as creating a monopoly and conferring
odious and exclusive privileges upon a small number of persons at the expense of the great body
of the community of New Orleans, but it is asserted that it deprives a large and meritorious
class of citizens—the whole of the butchers of the city—of the right to exercise their trade”
Lochner v. New York (1905)
Peckham op. (Fuller, Brewer, Brown, McKenna)
Dissent: Harlan (White, Day), Holmes
Restrictions on working hours of bakers
Courts decision was really a skepticism about labor laws and not a matter of law
Dissent: Holmes – this is judicial activism based on laisses faire economic theory
Dissent: Harlan – Liberty is subject to regulation by a state acting within police powers
Holding: 14th amendment guarantees liberty – freedom of contract is key
The question whether this act is valid as a labor law, pure and simple, may be dismissed in a
few words. There is no reasonable ground for interfering with the liberty of person or the right
of free contract by determining the hours of labor in the occupation of a baker.
See Hammer v Dagenheart (1918)
Home Building and Loan Association v. Blaisdell (1934)
Hughes op. (Brandeis, Stone, Roberts, Cardozo)
Dissent: Sutherland (Van Devanter, McReynolds, Butler)
Minnesota suspended creditors’ remedies during the great depression, extending
repayment times
Holding: Emergency made it ok
West Coast Hotel Co. v. Parrish (1937)
Hughes op. (Brandeis, Stone, Roberts, Cardozo)
Dissent: Sutherland (Van Devanter, McReynolds, Butler)
Ended the Lochner Era
Holding: Minimum wage law found constitutional,
Roberts was the swing, “the switch in time that saved the nine”
Occurred just before FDRs plan to pack the courts, didn’t actually affect the decision
Van Devanter’s subsequent retirement led to the abandonment of the plan too
United States v. Carolene Products Co. (1938)
Stone op. (Hughes, Brandeis, Roberts, Black), Butler
Dissent: McReynolds
Famous Footnote Four “4”
o Minimal review here, but in cases with “discrete, insular, minorities” a
heightened review standard is appropriate (‘strict scrutiny’)
Law that all milk must be unadulterated
Court devised rational basis test
Holding: Law did not exceed power of congress, under commerce clause
Wiki – “Therefore, Footnote Four outlines a higher level of judicial scrutiny for legislation that
met certain conditions:
1. On its face violates a provision of the Constitution (facial challenge).
2. Attempts to distort or rig the political process.
3. Discriminates against minorities, particularly those who lack sufficient numbers or
power to seek redress through the political process.”
Olsen v. Nebraska (1941)
Douglas op. (Hughes, Stone, Roberts, Black, Reed, Frankfurter, Murphy)
Nebraska court struck down employment law
Holding: That the court should defer to legislative findings about the need or usefulness
of a statute
See United States v. Darby Lumber Co. (1941)
Unanimous, overruling Hammer v Dagenhart
Lincoln Federal Labor Union v. Northwestern Iron and Metal Co. (1949)
Black op.
Nebraska law that union membership can’t be the basis for hiring
Holding: Not a violation of due process to ban certain kinds of contracts
Williamson v. Lee Optical Co. (1955)
Unanimous Douglas op.
Opticians v Ophthalmologists
Only licensed individuals could do eye exams law, but certain sellers were exempted for
unclear reasons
States are permitted to solve issues one step at a time, don’t have to have a coherent
body of laws
Holding: State laws are only held to rational basis standard
Voting Rights
Harper v. Virginia Board of Elections (1966)
Douglas op. (Warren, Clark, Brennan, White, Fortas)
Dissent: Black, Harlan (2nd) & Stewart
Holding: Poll tax is violative of 14th Amendment
Dissent Harlan: Court previously allowed taxes via rational basis
Dissent Black: Textualism gives no clue to this holding
Kramer v. Union Free School District No. 15 (1969)
Warren op. (Douglas, Brennan, White, Marshall)
Dissent: Stewart (Black, Harlan (2nd))
NY School District Bachelor Case
Holding: If a state excludes some from voting, it must show that its necessary to promote
a clear and compelling interest
Baker v. Carr (1962)
Brennan (Warren, Black, Douglas, Clark, Stewart)
Dissent: Frankfurter, Harlan
Holding: State redistricting is justiciable
Put for reargument due to no clear majority
Evens recused himself due to health issues and stress from the case
Wiki – “ Brennan reformulated the political question doctrine, identifying six factors to help in
determining which questions were "political" in nature. Cases that are political in nature are
marked by:
1. "Textually demonstrable constitutional commitment of the issue to a coordinate political
department;" as an example of this, Brennan cited issues of foreign affairs and executive
war powers, arguing that cases involving such matters would be "political questions"
2. "A lack of judicially discoverable and manageable standards for resolving it;"
3. "The impossibility of deciding without an initial policy determination of a kind clearly
for nonjudicial discretion;"
4. "The impossibility of a court's undertaking independent resolution without expressing
lack of the respect due coordinate branches of government;"
5. "An unusual need for unquestioning adherence to a political decision already made;"
6. "The potentiality of embarrassment from multifarious pronouncements by various
departments on one question."”
Dissent: “Appellants invoke the right to vote and to have their votes counted. But they are
permitted to vote and their votes are counted. They go to the polls, they cast their ballots, they
send their representatives to the state councils. Their complaint is simply that the
representatives are not sufficiently numerous or powerful.”
Reynolds v. Sims (1964)
Warren op. (Black, Douglas, Brennan, White, Goldberg), Clark, Stewart
Dissent: Harlan (2nd)
Overruled Colgrove v Green
“One person one vote”
Ruling that state electoral districts must be roughly proportional
Rural v City – due to movement to cities, states didn’t want to redistrict
Dissent: Harlan argued that this ignored original intent of 14 th amendment
Probably better done under republican government clause
Led to fight to pass a constitutional amendment for land area districting (that failed)
“Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or
cities or economic interests.”
Cipriano v. City of Houma (1969)
Per curiam, unanimous
TODO
Whitcomb v. Chavis (1971)
White op. (Burger, Black, Harlan, Stewart, White, Blackmun)
Are uniform districts required by one person one vote?
Dilution of minority votes in Indiana
Holding: Justiciable, burden on proving unconstitutional, not proven
Dunn v. Blumstein (1972)
Thurgood Marshall op. (Douglas, Brennan, Stewart, White, Blackmun)
Tennessee had a year residency requirement for voting
Holding: Unconstitutional as prevents interstate travel, and doesn’t meet a compelling
state interest
Mobile v. Bolden (1980)
Stewart op. (Burger, Powell, Rehnquist), Blackmun, Stevens
Dissent: Brennan, White, Marshall
Holding: Facially neutral redistricting is constitutional
Holding: Disproportionate effect is not enough to render something unconstitutional
Davis v. Bandemer (1986)
White op. (Brennan, Marshall, Blackmun, Powell, Stevens), Burger, O’Connor,
Rehnquist
Holding: Partisan gerrymandering is justiciable, but no clear standard
Holding: Gerrymandering in Indiana was not sufficient adverse
National GOP supported local Dems, National Dems opposed
Later limited
Prigg v. Pennsylvania (1842)
Story op.
Concurrence: Taney, Thompson, Wayne, Daniel, McLean
Woman living in virtual freedom in Maryland moves to Pennsylvania
Slavecatcher Prigg catches her for the descendants of her former owner
He was arrested under PA law for assault
Holding: Under Fugitive Slave Act, PA law was superseded and held unconstitutional
Holding: State magistrates don’t have to get involved, but they can’t interfere
Dred Scott v. Sandford (1857)
Taney op. (Wayne, Catron, Daniel, Nelson, Grier, Campbell)
Scotts moved from slave territory to free territory, so they should be free
Dissent: McLean, Curtis
Holding: ‘Negros’ can not be citizens, and therefore have no standing
Holding: Federal government has no power to regulate slavery in federal territories
Dicta: Missouri compromise unconstitutional
Only second time a congressional act was found unconstitutional
Dissent McLean: Blacks can vote so they can be citizens
Dissent Curtis: If he had no standing, the court couldn’t have decided further
TODO add more background
LincolnDouglass Debates
Lincoln accused of being an abolitionist, he denied
Debates for IL senate Seat
Lincoln lost, but raised his profile
Affirmed varying ideas for emancipation (colonization and deportation)
I agree with Judge Douglas he is not my equal in many respects—certainly not in color, perhaps
not in moral or intellectual endowment. But in the right to eat the bread, without the leave of
anybody else, which his own hand earns, he is my equal and the equal of Judge Douglas, and
the equal of every living man.
Frederick Douglass, the Constitution of the United States: Is it ProSlavery or AntiSlavery
(1860)
Black abolitionist
Defends constitution as antislavery at its heart
13th Amendment
Abolished slavery
Appropriate power to Congress
TODO: enactment history
Civil Rights Acts of 1866
Enacted over the veto of Andrew Johnson
14th Amendment
All people born are citizens
Equal protection
Repudiated Dred Scott
Right to vote
Inserted “male” “21 years” into constitution
Opposed by some women
Excluded former confederates from office
Validated war debts and rejected reparations to slave owners
Power to enforce
Senator Jacob Howard, Speech Introducing the Fourteenth Amendment (1866)
Primary author of first section of 14th Amendment
Intended it to extend the bill of rights
Strauder v. West Virginia (1880)
Strong op. (Waite, Swayne, Miller, Bradley, Hunt, Harlan)
Dissent: Field (Clifford)
Blacks excluded from jury – black defendant
Amar: who is being discriminated against and how? Discussion re. how small does the
group you’ve excluded have to be? Systemic effects.
Holding: Exclusion of people from jury is violative of Equal Protection for the defendant
Didn’t extend right to women
Dissent: This is a political right, 14th Amendment was about civil rights
Wiki Washington v. Davis: "[Strauder] established that the exclusion" of African Americans
from juries violates equal protection, but if a particular jury or series of juries "does not
statistically reflect the racial composition of the community does not in itself make out an
invidious discrimination forbidden by the Clause"
See Civil Rights Cases (1883)
Yick Wo v. Hopkins (1886)
Unanimous Matthews op.
SF. Ordinance prohibiting laundries in wooden buildings
Non citizens get equal protection
Holding: A facially neutral law, administered prejudicially is unconstitutional
Downes v. Bidwell (1901)
Brown op. (White, Shiras, McKenna, Gray)
Dissent: Fuller (Harlan, Brewer, Peckham)
Does the constitution apply to the territories?
Holding: Territories are outside of constitution administratively but are inside it for the
purpose of rights
Plessy v. Ferguson (1896)
Brown op. (Fuller, Field, Gray, Shiras, White, Peckham)
Dissent: Harlan
“Separate but equal”
Holding: Segregation in train cars is constitutional
Dissent: Noted the point of the nanny exception was to highlight inferiority
Harlan’s dismissal of the Chinese
The white race deems itself to be the dominant race in this country. And so it is in prestige, in
achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all
time if it remains true to its great heritage and holds fast to the principles of constitutional
liberty. But in view of the constitution, in the eye of the law, there is in this country no superior,
dominant, ruling class of citizens. There is no caste here. Our constitution is colorblind, and
neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are
equal before the law. The humblest is the peer of the most powerful. The law regards man as
man, and takes no account of his surroundings or of his color when his civil rights as
guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this
high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion
that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely
upon the basis of race.
In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as
the decision made by this tribunal in the Dred Scott Case.
Bolling v. Sharpe (1954)
Unanimous Warren op.
A year before Brown
Augmented with Brown II
Holding: School segregation unconstitutional under due process
‘Substantive due process’
Reverse incorporation – 14th applies to Federal Government by way of Due Process
Not a very good decision with a good result
Brown v. Board of Education of Topeka, Kansas (1954)
Unanimous Warren op.
Denial of Black minors to schools
Holding: “Separate but equal” is inherently unequal in education
Instilled a sense of inferiority in Black children
Brown II (1954): How should Brown I be implemented?
Holding: Varied local solutions with “All deliberate speed”
Had national security impacts due to Cold War Russian Propaganda
Overturned Plessy sub silencio
Declaration of Constitutional Principles (The Southern Manifesto)
Drafted to counter Brown in 1956
Promised to reverse Brown
"The unwarranted decision of the Supreme Court in the public school cases is now bearing the
fruit always produced when men substitute naked power for established law."
"The original Constitution does not mention education. Neither does the 14th Amendment nor
any other amendment. The debates preceding the submission of the 14th Amendment clearly
show that there was no intent that it should affect the system of education maintained by the
States."
"This unwarranted exercise of power by the Court, contrary to the Constitution, is creating
chaos and confusion in the States principally affected. It is destroying the amicable relations
between the white and Negro races that have been created through 90 years of patient effort by
the good people of both races. It has planted hatred and suspicion where there has been
heretofore friendship and understanding."
Loving v. Virginia (1967)
Unanimous Warren op.
Mildred and Richard Loving, convicted under antimiscegenation laws
Holding: Bans on interracial marriage violate equal protection
Missouri v. Jenkins (1995)
Rehnquist op. (O’Connor, Scalia, Kennedy, Thomas)
Dissent: Souter (Stevens, Ginsburg, Breyer)
Holding: Orders to correct de facto racial inequality in schools via increased funding are
beyond lower court authority
Marriage is one of the "basic civil rights of man," fundamental to our very existence and
survival. ... To deny this fundamental freedom on so unsupportable a basis as the racial
classifications embodied in these statutes, classifications so directly subversive of the principle
of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's
citizens of liberty without due process of law. The Fourteenth Amendment requires that the
freedom of choice to marry not be restricted by invidious racial discrimination. Under our
Constitution, the freedom to marry, or not marry, a person of another race resides with the
individual and cannot be infringed by the State.
The court concluded that antimiscegenation laws were racist and had been enacted to
perpetuate white supremacy:
There is patently no legitimate overriding purpose independent of invidious racial
discrimination which justifies this classification. The fact that Virginia prohibits only
interracial marriages involving white persons demonstrates that the racial classifications must
stand on their own justification, as measures designed to maintain White Supremacy.
Griggs v. Duke Power Co. (1971)
Unanimous Burger op.
Duke Power excluded blacks, later changed it to require odd educational tests
Holding: Disparate impact hiring policies must be substantially related to the job itself
Washington v. Davis (1976)
White op. (Burger, Blackmun, Powell, Rehnquist, Stevens, Stewart)
Dissent: Brennan, Marshall
Two potential black policemen were rejected due to a test that disproportionately
affected blacks
Holding: This was fine. A law must have both discriminatory purpose and impact to be
unconstitutional
Village of Arlington Heights v. Metropolitan Housing Development Corp (1977)
Powell op. (Burger, Stewart, Blackmun, Rehnquist, Stevens), Marshall (Brennan)
Dissent: White
Zoning in Chicago discriminated on a racial basis in a de facto manner
Didn’t apply strict scrutiny, applied discriminatory intent test
Holding: Zoning ordinance did not violate 14th amendment based on application of
Disparate Impact/Purposeful Discrimination test
Korematsu v. United States (1944)
Black op. (Stone, Reed, Frankfurter, Douglas, Rutledge)
Dissent: Roberts, Murphy, Jackson
EO 9066 ordered Japanese Americans into internment camps
Holding: Exclusion order was constitutional
Military necessity and the war power
Black argues it was not because of race but because of war with the Japanese
Dissent Roberts: this was racism
Dissent Jackson: Military matters are generally outside the court, this is a birth
inequality
Sex and Privacy
Bradwell v Illinois (1873)
Miller op. (Clifford, Davis, Strong, Hunt), Bradley (Field, Swayne)
Dissent: Chase
Narrow reading of 14th Amendment, right to practice profession not included
Myra Bradwell applied to the bar
Holding: Court upheld denial
Minor v. Happersett (1874)
Unanimous Waite op.
Virginia Minor sued for the right to register to vote
Holding: 14th amendment is civil rights, not political rights – see children can’t vote
19th Amendment
Hoyt v Florida (1961)
Unanimous Harland op.
All male jury – constitutional with opt in provision?
Holding: Yes – how could women be discriminated against if they had the right to be on
the jury? (Amar – see prisoners dilemma)
Overruled by Taylor v. Louisiana
Reed v Reed (1971)
Unanimous Burger op.
The dead woman was being discriminated against – disincentive for her to work!
Holding: Estate administrators can’t be name in a way that discriminates based on sex
Frontiero v Richardson (1973)
Brennan op. (Douglas, White, Marshall), Stewart, Powell (Burger, Blackmun)
Dissent: Rehnquist
Holding: Military benefits can’t be given out differently based on sex
Air Force Woman claimed for benefits for partner, which she would have been given if
she were a man
Contemporaneous with the Equal Rights Amendment attempt, the concurrence favored
waiting to resolve questions through
Plurality applied strict scrutiny, but future courts used intermediate
“[T]he sex characteristic frequently bears no relation to ability to perform or contribute to
society. As a result, statutory distinctions between the sexes often have the effect of invidiously
relegating the entire class of females to inferior legal status without regard to the actual
capabilities of its individual members.”
Vorcheimer v School District of Philadelphia (1975) not discussed, 1439
Personal Administrator of Massachusetts v. Feeney (1979)
Stewart op. (Burger, White, Blackmun, Powell, Rehnquist, Stevens)
Dissent: Marshall (Brennan)
Did a hiring preference for veterans over non veterans discriminate on the basis of sex
because few women were veterans?
Holding: Did not violate – applied ‘intermediate scrutiny’ for gender based cases
Dissent: Argued for burden on proof on state, argued that there was clear discriminatory
intent
When a statute genderneutral on its face is challenged on the ground that its effects upon
women are disproportionably adverse, a twofold inquiry is thus appropriate. The first question
is whether the statutory classification is indeed neutral in the sense that it is not genderbased.
If the classification itself, covert or overt, is not based upon gender, the second question is
whether the adverse effect reflects invidious genderbased discrimination... [which is] 'the
condition that offends the Constitution.
US v. Virginia (1996): VMI Case
Ginsburg op. (Stevens, O’Connor, Kennedy, Souter, Breyer), Rehnquist
Dissent: Scalia
Holding: VMI forced to admit women
Substantive comparability doctrine of lower courts was of a lower standard, failed to
meet heightened scrutiny
Mississippi University for Women v. Hogan (1982)
O’Connor op. (Brennan, White, Marshall, Stevens)
Dissent: Burger, Blackmun, Powell
Man not allowed into Women’s nursing college
Note: Nursing as opposed to Medical – nurses are supervised > inferior
Holding: Violation of equal protection
Garrett v Board of Edu Detroit (1991), not discussed, 1439
Rostker v Goldberg (1981)
Rehnquist op. (Burger, Stewart, Blackmun, Powell, Stevens)
Is selective service for men only violative of 14th amendment
Holding: No – There was a clear purpose
Griswold v Connecticut (1965)
Douglas op. (Warren, Clark, Brennan Goldberg), Harlan, White
Dissent: Black, Stewart
Connecticut law preventing contraception for women
Right to privacy found in ‘penumbras’ and ‘emanations’ of other constitutional
protections
Holding: Violative of right to marital privacy
Dissent Black: Textualism – no right to privacy in text
Set privacy precedent for future cases
Eisenstadt v. Baird (1972), p1531
Brennan op. (Douglas, Stewart, Marshall), White (Blackmun)
Dissent: Burger
MA law prohibiting distribution of contraceptives to unmarried people
Holding: Violative of equal protection
State couldn’t punish a misdemeanor of fornication by forcing childbirth
Didn’t punish men as they could use condoms for disease protection
Couldn’t be about health as it equally affects married an unmarried people
If the right of privacy means anything, it is the right of the individual, married or single, to be
free from unwarranted governmental intrusion into matters so fundamentally affecting a
person as the decision whether to bear or beget a child
Roe v. Wade (1973)
Blackmun op. (Burger, Douglas, Brennan, Stewart, Marshall, Powell)
Dissent: White, Rehnquist
Texas made it a crime to assist a women in obtaining an abortion
Holding: Violative of due process
Found in right to privacy
Must be balanced against state interest in ‘protecting women’s health’
The primary right here was the physician’s right to practice
Balanced using the trimester framework
Dissent White: Court exercising “raw judicial power”
Dissent Rehnquist:
“To reach its result, the Court necessarily has had to find within the scope of the Fourteenth
Amendment a right that was apparently completely unknown to the drafters of the
Amendment”
Doe v Bolton (1973), not discussed
Blackmun op. (Burger, Douglas, Brennan, Stewart, Marshall, Powell)
Dissent: White, Rehnquist
Same day as Roe v Wade
Georgia allowed abortion on in cases of rape, danger, or fetal defect
Holding: Violative of 14th amendment
Reiterated right to privacy
Regents of the University of California v. Bakke (1978)
Powell op. (Brennan, White, Marshall, Blackmun, Burger, Stewart, Rehnquist, Stevens)
Upheld affirmative action but quotas are impermissible (set asides)
Six opinions in nine justices
Bowers v Hardwick (1986)
White op. (Burger, Powell, Rehnquist, O’Connor)
Dissent Blackmun, Stevens, (Brennan, Marshall)
Georgia sodomy law outlawing oral and anal sex – targeting homosexuality
Holding: Law was valid
Slippery slope about adultery, incest
Very homophobic
Overruled in Lawrence v Texas 17 years later
Dissent Blackmun: Right to privacy
“To hold that the act of homosexual sodomy is somehow protected as a fundamental right would
be to cast aside millennia of moral teaching.”
Reva Siegel, Reasoning from the body: a historical perspective on abortion regulation and
questions of equal protection (1992)
Planned Parenthood of Southeast Pennsylvania v Casey (1992)
O’Connor, Kennedy, Souter op. (Blackmun, Stevens)
Dissent: White, Rehnquist, Scalia, Thomas
PA required informed consent, 24 hour waiting, notification of husbands, parental
consent
Holding: Reaffirmed Roe but upheld most PA provisions
New standard of “undue burden” – “substantial obstacle in the path of a woman seeking
an abortion before the fetus attains viability”
Opinion authored
Dissent Scalia: Rational basis present
Dissent Rehnquist: Overturn Roe
Romer v Evans (1996)
Kennedy op. (Stevens, O’Connor, Souter, Ginsburg, Breyer)
Dissent: Scalia (Rehnquist, Thomas)
Holding: Colorado law prohibiting protection of homosexuality not rationally related to
legitimate state interest – failing test for 14th Amendment
Applied lower standard of rational basis instead of strict scrutiny because the law was so
bad
Dissent Scalia: If you can criminalize it (Bowers) surely you can not protect it, judicial
activism
Scalia skipped the word ‘respectfully’ before dissent
“Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems
inexplicable by anything but animus toward the class that it affects; it lacks a rational
relationship to legitimate state interests.”
Lawrence v Texas (2003)
Kennedy op. (Stevens, Souter, Ginsburg, Breyer), O’Connor
Dissent: Scalia (Rehnquist), Thomas
Overruled Bowers v Hardwick
Holding: Texas law prohibiting consensual homosexual sex violative of 14 th
O’Connor didn’t want to overturn Bowers but argued that this was motivated by animus,
not protecting marriage
Dissent Scalia: Homosexual agenda comment, creation of a constitutional right
Dissent Thomas: Usual textualism
The majority decision also held that the intimate, adult consensual conduct at issue here was
part of the liberty protected by the substantive component of the Fourteenth Amendment's due
process protections. Kennedy said that the Constitution protects "personal decisions relating to
marriage, procreation, contraception, family relationships, [and] child rearing" and that
homosexuals "may seek autonomy for these purposes."
Grutter v Bollinger (2003)
O'Connor op. (Stevens, Souter, Ginsburg, Breyer)
Dissent: Rehnquist (Scalia, Kennedy, Thomas)
White girl sues UMich for affirmative action
Holding: UMich ok.
Letter from Attorney General to Congress on Litigation Involving DOMA (2011) Holder
United States v Windsor (2013)
Kennedy op. (Ginsburg, Breyer, Sotomayor, Kagan)
Dissent: Roberts, Scalia, Alito, (Thomas)
Holding: DOMA is unconstitutional under 5th Amendment guarantee combined with 14th
Amendment
Dissent Roberts: This isn’t about getting relief, this is about trying to get the court to
pronounce judgement. This also impinges on self governance of the people. Claims the
court relied on federalism to strike it down.
Dissent Scalia: This is anti federalism as it effects state bans on marriage
Obergefell v Hodges (2015)
Kennedy op. (Ginsburg, Breyer, Sotomayor, Kagan)
Dissent: Roberts, Scalia, Thomas, Alito
Holding: State same sex marriage bans are a violation of 14th Due Process and Equal
Protection
Court cited prior line of sex cases as precedent, including Windsor multiple times
Democratic process is not sufficient for enforcement of fundamental rights
Dissent Roberts: This is an over expansion of substantive due process, there’s also no
government intrusion, slippery slope
Dissent Scalia: Not originalist, overrides self governance
Dissent Thomas: Rejected substantive due process, not textual, liberty is freedom from –
not freedom to, threatens religious liberty, antidemocratic
Dissent Alito: Right to same sex marriage not “deeply rooted in this Nation’s history and
tradition”, anti precedential and tradition, claimed rational basis
“...extend to certain personal choices central to individual dignity and autonomy, including
intimate choices that define personal identity and beliefs", but the "identification and
protection" of these fundamental rights "has not been reduced to any formula."”