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Scenarios from Actual Supreme Court Cases

1. “Benjamin Gitlow was indicted in the Supreme Court of New York, with three others, for the statutory crime of criminal anarchy. New York Penal Law, 160, 161.1 He was separately tried, convicted, and sentenced to imprisonment….The case is here on writ of error to the Supreme Court, to which the record was remitted. The contention here is that the statute, by its terms and as applied in this case, is repugnant to the due process clause of the Fourteenth Amendment.” (Gitlow v. People of the State of New York, 1925) 2. “Title II has the caption "Federal Old-Age Benefits." The benefits are of two types, first, monthly pensions, and second, lump sum payments…. The scheme of benefits created by the provisions of Title II is not in contravention of the limitations of the Tenth Amendment…. Congress may spend money in aid of the ‘general welfare.’ Constitution, Art. I, section 8; United States v. Butler, 297 U.S. 1, 65; Steward Machine Co. v. Davis, supra. There have been great statesmen in our history who have stood for other views. We will not resurrect the contest. It is now settled by decision. United States v. Butler, supra. The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents…. Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be interwoven in our day with the wellbeing of the Nation. What is critical or urgent changes with the times” (U.S. Supreme Court, Helvering v. Davis, 1937). 3. “It is urged that, under the Commerce Clause of the Constitution, Article I, § 8, clause 3, Congress does not possess the power it has in this instance sought to exercise…. This Act extends federal regulation to production not intended in any part for commerce, but wholly for consumption on the farm…. The present Chief Justice has said in summary of the present state of the law: The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce … as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce. . .” (U.S. Supreme Court, Wickard v. Filburn, 1942). 4. “Petitioner after jury trial was found guilty of disorderly conduct in violation of a city ordinance of Chicago and fined. The case grew out of an address he delivered in an auditorium in Chicago under the auspices of the Christian Veterans of America…. Outside of the auditorium a crowd of about one thousand persons gathered to protest against the meeting….The crowd outside was angry and turbulent. Petitioner in his speech condemned the conduct of the crowd outside and vigorously, if not viciously, criticized various political and racial groups whose activities he denounced as inimical to the nation’s welfare…. The argument here has been focused on the issue of whether the content of petitioner’s speech was composed of derisive, fighting words, which carried it outside the scope of the constitutional guarantees…” (U.S. Supreme Court, Terminiello v. City of Chicago, 1949).

5. “In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment” (U.S. Supreme Court, Brown et al. v. Board of Education of Topeka et al., 1954). 6. “The Commonwealth of Pennsylvania by law, 24 Pa. Stat. 15-1516, as amended, Pub. Law 1928 (Supp. 1960) Dec. 17, 1959, requires that “At least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day. Any child shall be excused from such Bible reading, or attending such Bible reading, upon the written request of his parent or guardian.” The Schempp family, husband and wife and two of their three children, brought suit to enjoin enforcement of the statute, contending that their rights under the Fourteenth Amendment to the Constitution of the United States are, have been, and will continue to be violated unless this statute be declared unconstitutional as violative of these provisions of the First Amendment. They sought to enjoin the appellant school district, wherein the Schempp children attend school, and its officers and the Superintendent of Public Instruction of the Commonwealth from continuing to conduct such readings and recitation of the Lord’s Prayer in the public schools of the district pursuant to the statute” (U.S. Supreme Court, School District of Abington Township, Pennsylvania, et al. v. Schempp et al., 1963). 7. “We conclude that the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators. Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race, Brown v. Board of Education…. As stated in Gomillion v. Lightfoot, supra … ‘A citizen, a qualified voter, is no more nor no less so because he lives in the city or on the farm. This is the clear and strong command of our Constitution's Equal Protection Clause. This is an essential part of the concept of a government of laws, and not men. This is at the heart of Lincoln's vision of 'government of the people, by the people, [and] for the people.' The Equal Protection Clause demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races’” (U.S. Supreme Court, Reynolds v. Sims, 1964). 8. “Appellants, the Executive Director of the Planned Parenthood League of Connecticut, and its medical director, a licensed physician, were convicted as accessories for giving married persons information and medical advice on how to prevent conception and, following examination, prescribing a contraceptive device or material for the wife’s use. A Connecticut statute makes it a crime for any person to use any drug or article to prevent conception. Appellants claimed that the accessory statute as applied violated the Fourteenth Amendment.” (U.S. Supreme Court, Griswold et al. v. Connecticut, 1965) 9. In June 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court [388 U.S. 1, 3] of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia’s ban on interracial marriages.

On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years….After their convictions, the Lovings took up residence in the District of Columbia. On November 6, 1963, they filed a motion in the state trial court to vacate the judgment and set aside the sentence on the ground that the statutes which they had violated were repugnant to the [the Equal Protection and Due Process Clauses of the] Fourteenth Amendment. (Loving v. Virginia, 1967) 10. “Appellee attacks his conviction of violating Massachusetts law for giving a woman a contraceptive foam at the close of his lecture to students on contraception. That law makes it a felony for anyone to give away a drug, medicine, instrument, or article for the prevention of conception except in the case of (1) a registered physician administering or prescribing it for a married person or (2) an active registered pharmacist furnishing it to a married person presenting a registered physician's prescription.” (Eisenstadt, Sheriff, v. Baird, 1972) 11. “A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother’s life... A three-judge District Court… declared the abortion statutes void as vague and overbroadly infringing those plaintiffs’ Ninth and Fourteenth Amendment rights” (U.S. Supreme Court, Roe et al. v. Wade, District Attorney, 1973). 12. “These three consolidated appeals require us to evaluate the progress of the Dallas Independent School District (DISD) in eliminating the vestiges of the dual educational system formerly mandated by Texas law…. We hold that the measures taken by the district court in the areas of student assignment and site selection and school construction to transform the DISD into a unitary system are inadequate to right the constitutional wrong denounced by the Supreme Court in Brown v. Board of Education, 1954…. It is imperative that the dual school structure of the DISD be completely dismantled by the start of the second semester of the 1975-76 academic year” (U.S. 5th Circuit Court of Appeals, Tasby v. Estes, 1975). 13. “Respondents, Negro and Mexican-American residents of Dallas, Tex., brought this action … against petitioners, the Mayor and members of the Dallas City Council, alleging that the City Charter's at-large system of electing council members unconstitutionally diluted the vote of racial minorities…. The District Court orally declared that system unconstitutional and then ‘afforded the city an opportunity as a legislative body for the City of Dallas to prepare a plan which would be constitutional.’ The City Council then passed a resolution expressing its intention to enact an ordinance that would provide for eight council members to be elected from single-member districts and for the three remaining members, including the Mayor, to be elected at large…. The District Court approved the plan, which the City Council thereafter formally enacted as an ordinance…. The Court of Appeals reversed, holding that the District Court had erred…. Held. The judgment is reversed and the case is remanded” (U.S. Supreme Court, Wise v. Lipscomb, 1979). 14. The question presented by these cases is whether, consistent with the Equal Protection Clause of the Fourteenth Amendment, Texas may deny to undocumented school-age children the free

public education that it provides to children who are citizens of the United States or legally admitted aliens. Since the late 19th century, the United States has restricted immigration into this country. Unsanctioned entry into the United States is a crime…and those who have entered unlawfully are subject to deportation….But despite the existence of these legal restrictions, a substantial number of persons have succeeded in unlawfully entering the United States, and now live within various States, including the State of Texas. In May 1975, the Texas Legislature revised its education laws to withhold from local school districts any state funds for the education of children who were not “legally admitted” into the United States. The 1975 revision also authorized local school districts to deny enrollment in their public schools to children not “legally admitted” to the country…..This is a class action, filed in the United States District Court for the Eastern District of Texas in September 1977, on behalf of certain school-age children of Mexican origin residing in Smith County, Tex., who could not establish that they had been legally admitted into the United States. The action complained of the exclusion of plaintiff children from the public schools of the Tyler Independent School District.” (Plyler v. Doe, 1982) 15. “During the 1984 Republican National Convention in Dallas, Texas, respondent Johnson participated in a political demonstration to protest the policies of the Reagan administration and some Dallas-based corporations. After a march through the city streets, Johnson burned an American flag while protesters chanted. No one was physically injured or threatened with injury, although several witnesses were seriously offended by the flag burning. Johnson was convicted of desecration of a venerated object in violation of a Texas statute, and a State Court of Appeals affirmed. However, the Texas Court of Criminal Appeals reversed, holding that the State, consistent with the First Amendment, could not punish Johnson for burning the flag in these circumstances.” (Texas v. Johnson, 1989) 16. “At issue are five provisions of the Pennsylvania Abortion Control Act of 1982: 3205, which requires that a woman seeking an abortion give her informed consent prior to the procedure, and specifies that she be provided with certain information at least 24 hours before the abortion is performed; 3206, which mandates the informed consent of one parent for a minor to obtain an abortion, but provides a judicial bypass procedure; 3209, which commands that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband; 3203, which defines a “medical emergency” that will excuse compliance with the foregoing requirements; and 3207(b), 3214(a), and 3214(f), which impose certain reporting requirements on facilities providing abortion services. Before any of the provisions took effect, the petitioners, five abortion clinics and a physician representing himself and a class of doctors who provide abortion services, brought this suit seeking a declaratory judgment that each of the provisions was unconstitutional on its face, as well as injunctive relief. The District Court held all the provisions unconstitutional, and permanently enjoined their enforcement. The Court of Appeals affirmed in part and reversed in part, striking down the husband notification provision but upholding the others….Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall “deprive any person of life, liberty, or property, without due process of law.” The controlling word in the cases before us is “liberty.”“ (Planned Parenthood of Southeastern Pa. v. Casey, 1992)

17. “This case began in 1985 and initially resulted in a consent decree, which was approved by the district court in 1987.... The consent decree addressed the plaintiff class’s challenge under the Equal Protection Clause of the Fourteenth Amendment … to the purposeful racial discrimination and segregation within DHA's public housing programs…. Virtually all non-elderly public housing units were constructed in minority areas of Dallas…. The 1987 consent decree required the demolition of approximately 2,600 units of public housing in DHA's West Dallas project, a public housing development located in a predominantly black area of the city and referred to by this court as ‘one of Dallas's worst slums.’ These units were to be replaced on a one-for-one basis with additional public housing units and Section 8 certificates and vouchers. The decree also required that one hundred newly constructed replacement units be built in a predominantly white area of Dallas, that a nondiscriminatory tenant selection and assignment plan be implemented, and that a Section 8 mobility plan be established to assist black families joining the Section 8 program in finding housing in white areas of Dallas” (The U.S. District Court’s ruling in Walker v. HUD, 1989, as described by the U.S. 5th Circuit Court of Appeals in Walker v. HUD, 1999). 18. We apply these principles to a Nebraska law banning “partial birth abortion.” The statute reads as follows: ”No partial birth abortion shall be performed in this state, unless such procedure is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.” Neb. Rev. Stat. Ann. §28-328(1) (Supp. 1999)…. Dr. Leroy Carhart is a Nebraska physician who performs abortions in a clinical setting. He brought this lawsuit in Federal District Court seeking a declaration that the Nebraska statute violates the Federal Constitution, and asking for an injunction forbidding its enforcement. After a trial on the merits, during which both sides presented several expert witnesses, the District Court held the statute unconstitutional. 11 F. Supp. 2d 1099 (Neb. 1998). On appeal, the Eighth Circuit affirmed. 192 F. 3d 1142 (1999); cf. Hope Clinic v. Ryan, 195 F. 3d 857 (CA7 1999) (en banc) (considering a similar statute, but reaching a different legal conclusion). We granted certiorari to consider the matter (Stenberg v. Carhart, 2000) 19. Prior to 1995, a student elected as Santa Fe High School’s student council chaplain delivered a prayer over the public address system before each home varsity football game. Respondents, Mormon and Catholic students or alumni and their mothers, filed a suit challenging this practice and others under the Establishment Clause of the First Amendment. While the suit was pending, petitioner school district (District) adopted a different policy, which authorizes two student elections, the first to determine whether “invocations” should be delivered at games, and the second to select the spokesperson to deliver them. After the students held elections authorizing such prayers and selecting a spokesperson, the District Court entered an order modifying the policy to permit only nonsectarian, nonproselytizing prayer. The Fifth Circuit held that, even as modified by the District Court, the football prayer policy was invalid. Held: The District’s policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause. (Santa Fe Independence School District v. Doe, individually and as next friend for her minor children, et al., 2000)

20. The Child Pornography Prevention Act of 1996 (CPPA) expands the federal prohibition on child pornography to include not only pornographic images made using actual children, 18 U. S. C. §2256(8)(A), but also “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture” that “is, or appears to be, of a minor engaging in sexually explicit conduct,” §2256(8)(B), and any sexually explicit image that is “advertised, promoted, presented, described, or distributed in such a manner that conveys the impression” it depicts “a minor engaging in sexually explicit conduct,” §2256(8)(D). Thus, §2256(8)(B) bans a range of sexually explicit images, sometimes called “virtual child pornography,” that appear to depict minors but were produced by means other than using real children, such as through the use of youthful-looking adults or computer-imaging technology. Section 2256(8)(D) is aimed at preventing the production or distribution of pornographic material pandered as child pornography. Fearing that the CPPA threatened their activities, respondents, an adult-entertainment trade association and others, filed this suit alleging that the “appears to be” and “conveys the impression” provisions are overbroad and vague, chilling production of works protected by the First Amendment” (Ashcroft, Attorney General, et al. v. Free Speech Coalition et al., 2002). 21. “Responding to a reported weapons disturbance in a private residence, Houston police entered petitioner Lawrence’s apartment and saw him and another adult man, petitioner Garner, engaging in a private, consensual sexual act. Petitioners were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held, inter alia, that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment.” (Lawrence v. Texas, 2003) 22. “After approving an integrated development plan designed to revitalize its ailing economy, respondent city, through its development agent, purchased most of the property earmarked for the project from willing sellers, but initiated condemnation proceedings when petitioners, the owners of the rest of the property, refused to sell. Petitioners brought this state-court action claiming, inter alia, that the taking of their properties would violate the “public use” restriction in the Fifth Amendment’s Takings Clause.” (Kelo et al. v. City of New London et al., 2005) 23. “California’s Compassionate Use Act authorizes limited marijuana use for medicinal purposes. Respondents Raich and Monson are California residents who both use doctor- recommended marijuana for serious medical conditions. After federal Drug Enforcement Administration (DEA) agents seized and destroyed all six of Monson’s cannabis plants, respondents brought this action seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA) to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. Respondents claim that enforcing the CSA against them would violate the Commerce Clause and other constitutional provisions.” (Gonzales, Attorney General, et al. v. Raich et al., 2005) 24. “Among the 21 historical markers and 17 monuments surrounding the Texas State Capitol is a 6-foot-high monolith inscribed with the Ten Commandments. The legislative record illustrates that, after accepting the monument from the Fraternal Order of Eagles--a national social, civic, and patriotic organization--the State selected a site for it based on the recommendation of the state organization that maintains the capitol grounds. Petitioner, an Austin resident who encounters the

monument during his frequent visits to those grounds, brought this 42 U. S. C. §1983 suit seeking a declaration that the monument’s placement violates the First Amendment’s Establishment Clause and an injunction requiring its removal. Holding that the monument did not contravene the Clause, the District Court found that the State had a valid secular purpose in recognizing and commending the Eagles for their efforts to reduce juvenile delinquency, and that a reasonable observer, mindful of history, purpose, and context, would not conclude that this passive monument conveyed the message that the State endorsed religion. The Fifth Circuit affirmed. Held: The judgment is affirmed” (U.S. Supreme Court, Van Orden v. Perry, in his official capacity as Governor of Texas and Chairman, State Preservation Board, et al., 2005). 25. “The Oregon Death With Dignity Act (ODWDA) exempts from civil or criminal liability state-licensed physicians who … dispense or prescribe a lethal dose of drugs upon the request of a terminally ill patient. In 2001, the Attorney General [of the United States] issued an Interpretive Rule … declaring that using controlled substances to assist suicide is not a legitimate medical practice and that dispensing or prescribing them for this purpose is unlawful under the CSA (Federal Controlled Substances Act).” (Gonzales v. Oregon, January 17, 2006) 26. “New Hampshire’s Parental Notification Prior to Abortion Act…prohibits physicians from performing an abortion on a pregnant minor until 48 hours after written notice of such abortion is delivered to her parent or guardian. The Act does not require notice for an abortion necessary to prevent the minor’s death if there is sufficient time to provide notice, and permits a minor to petition a judge to authorize her physician to perform an abortion without parental notification. The Act does not explicitly permit a physician to perform an abortion in a medical emergency without parental notification, Respondents…filed suit…claiming that the Act is unconstitutional because of the inadequacy of the life exception and the judicial bypass’ confidentiality provision.” (Ayotte v. Planned Parenthood of Northern New England, January 18, 2006) 27. “Pursuant to Congress' joint resolution authorizing the use of necessary and appropriate force against nations, organizations, or persons that planned, authorized, committed, or aided in the September 11, 2001, al Qaeda terrorist attacks, the President sent Armed Forces into Afghanistan to wage a military campaign against al Qaeda and the Taliban regime that had supported it. Petitioners, 2 Australians and 12 Kuwaitis captured abroad during the hostilities, are being held in military custody at the Guantanamo Bay, Cuba, Naval Base, which the United States occupies under a lease and treaty recognizing Cuba's ultimate sovereignty, but giving this country complete jurisdiction and control for so long as it does not abandon the leased areas. Petitioners filed suits under federal law challenging the legality of their detention, alleging that they had never been combatants against the United States or engaged in terrorist acts, and that they have never been charged with wrongdoing, permitted to consult counsel, or provided access to courts or other tribunals.” (Rasul v. Bush, 2004) 28. “Pursuant to Congress' Joint Resolution authorizing the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided" the September 11, 2001, al Qaeda terrorist attacks (AUMF), U. S. Armed Forces invaded Afghanistan. During the hostilities, in 2001, militia forces captured petitioner Hamdan, a Yemeni national, and turned him over to the U. S. military, which, in 2002, transported him to prison in Guantanamo Bay, Cuba. Over a year later, the President deemed

Hamdan eligible for trial by military commission for then-unspecified crimes. After another year, he was charged with conspiracy "to commit ... offenses triable by military commission." In habeas and mandamus petitions, Hamdan asserted that the military commission lacks authority to try him because (1) neither congressional Act nor the common law of war supports trial by this commission for conspiracy, an offense that, Hamdan says, is not a violation of the law of war; and (2) the procedures adopted to try him violate basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him.” (Hamdan v. Rumsfeld, 2006) 29. “Petitioners are aliens detained at Guantanamo after being captured in Afghanistan or elsewhere abroad and designated enemy combatants by [Combatant Status Review Tribunals]. Denying membership in the al Qaeda terrorist network that carried out the September 11 attacks and the Taliban regime that supported al Qaeda, each petitioner sought a write of habeas corpus in the District Court, which ordered the cases dismissed for lack of jurisdiction because Guantanamo is outside sovereign territory. The D.C. Circuit affirmed, but this Court reversed, holding that 28 U.S.C s. 2241 extended statutory habeas jurisdiction to Guanatanamo. See Rasul v. Bush….While appeals were pending, Congress passed the Detainee Treatment Act of 2005, sec. 10005(e) of which amended 28 U.S.C. sec.2241 to provide that ‘no court, justice, or judge shall have jurisdiction to…consider…an application for…habeas corpus filed by or on behalf of an alien detained…at Guantanamo’….The D.C Circuit concluded that…petitioners are not entitled to…the protections of the Suspension Clause [of the US Constitution]…and that it was therefore unnecessary to consider whether the DTA provided an adequate and effective substitute for habeas” (Boumediene v. Bush, 2008). 30. “The City of Farmers Branch, Texas, (“the City”) appeals the district court’s summary judgment enjoining it from implementing a purported housing ordinance that requires all adults living in rental housing within the City to obtain an occupancy license conditioned upon the occupant’s citizenship or lawful immigration status. The district court concluded that the ordinance was preempted by federal law as a regulation of immigration that infringed Congress’s constitutional power…. We conclude that the ordinance’s sole purpose is not to regulate housing but to exclude undocumented aliens, specifically Latinos, from the City of Farmers Branch and that it is an impermissible regulation of immigration. We hold that the ordinance is unconstitutional and presents an obstacle to federal authority on immigration and the conduct of foreign affairs. We therefore AFFIRM the district court’s judgment” (U.S. 5th Circuit Court of Appeals, Villas at Parkside Partners, et al. v. City of Farmers Branch, Texas, 2012). 31. “The petition for a writ of certiorari is granted limited to the following question: Whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act … exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment … of the United States Constitution” (Certiorari Granted, U.S. Supreme Court, Shelby, AL v. Holder, 2013). “Held: Section 4 of the Voting Rights Act is unconstitutional; its formula can no longer be used as a basis for subjecting jurisdictions to preclearance…. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests

have been banned for over 40 years. And voter registration and turnout numbers in covered States have risen dramatically” (U.S. Supreme Court, Shelby AL v. Holder, 2013).