The Progressive Judiciary

1
The Progressive Judiciary

• Mr. Greens American Government

2
Outline of the Lecture

• The Turn Toward Big Government
• The New Deal
• The Progressive Judiciary
• Majority Culture
• The Imperial Presidency
• The New Ideologies

3
Constitutional Interpretation

• Judicial Restraint
• Judicial Activism

4
Judicial Restraint

• Classical Liberalism
• Judges should be bound by the words, context,
  history, and tradition of a law and the
  Constitution
• Judges should defer to the legislature in the
  absence of clear constitutional prohibitions.
• Judges should respect Federalism by deferring to
  the States and limiting Federal power to national
  concerns.

5
Casey
6
Judicial Activism

• Progressivism
• Judges must go beyond the words, context and
  history of the text and consider likely
  consequences or moral and philosophical
  principles to ascertain meaning.
• Judges should rely on their own discretion and
  reasoning to counter possible passions of the
  moment and the threats of possible democratic
  (majority) injustice.
• Modern social complexity creates problems that
  only a vigorous national power can address.

7
Dworkin
8
Roper
9
The Progressive Judiciary

• The End of Substantive Due Process
• The Switch In Time That Saved Nine
• Interstate/Intrastate Commerce
• Jones Laughlin Steel Co. vs. NLRB and Wickard vs.
  Filburn
• Contracts
• Home Building And Loan Association v. Blaisdel
  (1934)
• Can the Minnesota legislature enacted a
  moratorium on farm foreclosures because of the
  depression?
• Footnote 4 in U.S. vs. Carolene Products (1938)

10
The Progressive Judiciary

• Footnote Four
• Rational Basis Test For
• Any Economic Regulation by Congress or a State
  Legislature
• Strict Scrutiny Test For
• Clearly Unconstitutional Legislation
• Attempts To Distort or Rig the Political Process.
  
• Any Legislation that Discriminates Against
  Minorities, Particularly Those Who Lack
  Sufficient Numbers or Power to Seek Redress
  Through the Political Process.

11
Footnote 4

• Incorporation of the Bill of Rights
• Civil Rights

12
Incorporation

• The Warren Court
• 1952-1969

Chief Justice Earl Warren
13
Incorporation
14
The Progressive Court

• Federal Over State
• Apportionment
• Public Over Private
• Prayer in School
• Affirmative Action
• Liberty Over Tradition
• Rights of the Accused
• Privacy Rights
• Abortion Rights
• Women Rights
• Homosexual Rights

15
Warren

• The Warren Court

16
Progressive Supreme Court

• Brown vs. Board of Education (1954)
• Can the State Segregate the Schools for Black and
  White Children?

17
Progressive Supreme Court

• Brown vs. Board of Education (1954)
• Can the State Segregate the Schools for Black and
  White Children?
• Is the Court Becoming a Legislature?

18
Brown
19
Civil Rights Movement

• Dr. Martin Luther King, Jr.
• No-Violent Civil Disobedience
• Southern Christian Leadership Conference (SCLC)
• and the Montgomery Bus Boycott (1955)
• Rosa Parks
• Birmingham Alabama, 1963
• The March on Washington, 1963
• I have a dream . . .

20
Martin Luther King, Jr.
21
Civil Rights Act of 1964

• Prohibited Discrimination Based on Race, Color,
  Sex, Religion, or National Origin
• in Salaries and Hiring
• in Access to Public Facilities
• in Access to Educational Opportunities
• Affirmative Action
• President Johnsons 1965 Executive Order
• Federal Contractors Must Give an Edge to Minority
  Applicants
• Set-asides (Quotas)
• In Government And Business Hiring
• In Access To Education.

22
Voting Rights Act of 1965

• Federal Government to supervise registration and
  elections in states where blacks were being
  prevented from voting

23
Effect of the Voting Rights Act
24
Progressive Supreme Court

• Apportionment of State Legislative Districts
• Baker vs. Carr (1962)
• Rights of the Accused
• Mapp vs. Ohio (1961)
• Gideon vs. Wainright (1963)
• Miranda vs. Arizona (1966)
• Establishment of Religion
• Engle vs. Vitale (1962)
• Privacy
• Griswald vs. Connecticut (1965)

25
Finding Privacy

• Griswold vs. Connecticut (1965)
• Can Connecticut Make It Illegal For a Doctor to
  Discuss Contraception with His Patients?
• The right to privacy, is not explicitly stated in
  the Constitution.
• It can be seen in the penumbras formed by
  emanations, or shadows of shadows of the 1st,
  3rd, 4th, 5th, and 9th amendments.

26
Penumbra
27
Chief Justice Warren Burger(1969-1986)
The Burger Court
28
Affirmative Action

• Regents vs. Bakke (1978)
• Can the University of California Davis Medical
  School Use Minority Set Asides (quotas) In
  Choosing Which Students To Admit?

29
Abortion Rights

• Roe vs. Wade (1973)
• Can the Texas Use Its Police Powers to Prevent A
  Woman From Obtaining an Abortion?
• trimester system

30
Womens Rights

• The 1972 Amendments to the Civil Rights Act
• Title VI No Federal Fund To Entities That
  Discriminate Against Women.
• Title IX Equal Athletic Opportunities of Women
  in Schools.
• 1972 The Equal Rights Amendment

31
Womens Rights

• Ruth Bader Ginsburg and the ACLUs Legal Campaign
• Reed vs. Reed (1971)
• Can Idaho Require that the Executor of a Will Has
  to Be Male?

• Craig vs. Boren (1976)
• Can Oklahoma Allow 18 Year Old Women to Buy Beer
  but Making Males Wait Until They Are 21?
• Strict scrutiny

Ruth Bader Ginsburg
32
Gay Rights

• Can a State Ban Homosexual Conduct It Finds
  Immoral?
• Bowers vs. Hardwick (1987)

33
Rhenquist Court
Chief Justice William Rhenquist (1986-2005)
34
Abortion Rights

• Planned Parenthood vs. Casey (1992)
• Can A State Place Restrictions or Impediments In
  the Way of a Woman Obtaining a Legal Abortion?
• Gonzales vs. Carhart (2007)
• Can the Congress Ban a Partial-Birth Abortion ?

35
Womens Rights

• U.S. vs. Virginia (1996)
• Can a State Sponsored School, The Virginia
  Military Institute, Exclude Women Based on Its
  200 Year History and Its Military Rigor

36
Affirmative Action

• The 2003 Michigan Cases
• Gratz vs. Bollinger (2003)
• Can the University of Michigan Add Points For
  Race in the Point System It Uses in Choosing Its
  Freshman Class?
• Grutter vs. Bollinger (2003)
• Can the University of Michigan Law School Use A
  System That Makes Race a Factor (no points) In
  Its Admissions Decisions?

37
Gay Rights

• Can a State Ban Homosexual Conduct It Finds
  Immoral?
• Lawrence vs. Texas (2003)
• 2003
• Massachusetts Supreme Court barring same-sex
  couples from the benefits of civil marriage was
  unconstitutional.
• 2009
• Voters Pass Californias Proposition 8 to Rescind
  the California Supreme Courts Ruling Allowing
  Gay Marriage

38
2004 Election
39
The Roberts Court
40
Conservative Block
Scalia
Thomas
Roberts
Alito
41
Liberal Block
Ginsberg
Breyer
Stephens
Soromayor
42
Swing Vote
Kennedy
43
The End