APPELLATE COURT DECISIONS

1. APPELLATE COURT DECISIONS • Appellate Courts • What Are They? • What Is Their Role? • What Is Their Impact? • Are They the “Final Answer”? M. C. Sengstock, Ph., C C.S. Professor of Sociology SOC 5810 – “Law & Society”

2. PRECEDENT – WHAT IS IT? • Precedent: • Law: a Judicial Decision that Serves as an Authority for Deciding a Later Case • General: an Example or Instance Used to Justify Later Similar Occurrences (World English Dictionary) • What Makes Precedent? All Courts? • Does a “Precedent” Really “Decide Things” Once & for All?

3. SOURCES OF PRECEDENT • Is ANY Court a Source of Precedent? • What Court(s) Are Sources of Precedent? • Trial Courts? • Appellate-Level Courts? • What Is Their Power? • What Is the “Top”? • What Is REALLY Unchangeable? • Are U.S. Supreme Court Decisions Unchangeable?

4. EX: U.S. SUPREME COURT: “PENUMBRA OF PRIVACY” • EX: Griswold v. Conn (1965) • Issue: Right of Physicians to Provide Medical Information to Patients • Case: Physicians for Planned Parenthood of Conn. Provided Information to Married Couples Re Birth Control

5. GRISWOLD V. CONN (ctd) • Violation: Conn. Law Forbade Provision of Such Information • Planned Parenthood Physicians Tried, Found Guilty of Violating Conn. Law • Physicians Appealed  U.S. Supreme Court • Claim: Conn. Law Violated Citizens’ Right to Privacy in Their Medical Consultations • Supreme Court Reached Decision on Issue

6. SUPREME COURT DECISION • Majority Decision: U.S. Constitution Allows U.S. Citizens a “Right of Privacy” (7-2) • Minority Opinion: No “Right of Privacy” Guaranteed By U.S. Constitution • Where in U.S. Constitution Does It Guarantee Individuals a Right of Privacy?

7. WHAT’S A “PENUMBRA OF PRIVACY”? • Minority (Hugo Black, Potter Stewart): • There Is No Right of Privacy Guaranteed by U.S. Constitution • Justice William O. Douglas (For Majority): • There Is a “Penumbra of Privacy” Guaranteed by U.S. Constitution • What Is a “Penumbra”?

8. PENUMBRA • Think of the Moon … • Ever See a “Halo” Around It? • What Is That “Halo” Called? • A “Penumbra” Is a “Halo” of Light … • Caused By a Very Bright Object Around Itself … • U.S. Contains Such a “Halo” of Privacy … • Created by Several Other Sections of the U.S. Constitution

9. BASIS OF DOUGLAS’ DEFENSE OF PRIVACY • 1st Amendment: Guarantees Right of Association • 3rd Amendment: Prohibits Peacetime Harboring of Soldiers • 4th Amendment: Prohibits Unreasonable Search & Seizure • 5th Amendment: Prohibits Self-Incrimination • 9th Amendment: Reserves to People Non-Enumerated Rights • Together These Constitute “Penumbra of Privacy”

10. ADDITION OF JUSTICE GOLDBERG • Justice Arthur Goldberg – Concurring with the Majority • Added to Justice Douglas’ List of Bases for the Constitutional Right of Privacy • Douglas’ Addition: 14th Amendment – “Due Process Clause” – Required States to Accord to Individuals the Same Rights as Federal Gov’t • Conn. Had Violated Drs’ & Patients’ Privacy (Which Federal Gov’t Cannot Do)

11. CONCLUSION OF MAJORITY • Conn. Law Prohibiting Distribution of Information re Contraceptives … • Violates Privacy of Married Couples … • Threatened the Relationship of Marriage … • By Preventing Distributions of Contraceptive by Physicians … • & Preventing Couples from Obtaining Medical Counseling re Their Use

12. THE MINORITY OPINION • Dissent of Justices Black & Stewart • Constitution Contains No Right of Privacy • Black: Criticized Court for Imposing Its Own Views of the Appropriateness of Certain Laws • Conn. Laws Were Appropriate & Fairly Applied • They Did Not Violate 14th Amendment • Appropriate Manner of Changing Inappropriate Laws Is to: • Change Laws … or Amend Constitution … • NOT Have the Supreme Court Act

13. APPLYING THE PRECEDENT FROM GRISWOLD v. CONN (1965) • Applying Griswold to Heterosexuals • Eisenstadt v. Baird (1972): Extended the Right of Sexual Privacy to Unmarried Persons • Mass. Law Prohibiting Unmarried Persons to Obtaining Birth Control Information • Roe v. Wade (Texas, 1973) [w. Doe v. Bolton] • Expanded the Right of Sexual Privacy to the Right to Have an Abortion

14. APPLYING THE PRECEDENT FROM GRISWOLD v. CONN (1965) • Bowers v. Hardwick (1986 – 21 Years Later): • Appeal from a Georgia Case … • Involving 2 Homosexual Males … • Engaging in Consensual Sex … • Claiming the Law Violated Their Privacy Rights • Question: Does the Right of Privacy Guaranteed by the “Penumbra of Privacy” Also Protect the Privacy of Homosexuals?

15. Q: DOES THE SAME RIGHT OF PRIVACY APPLY TO HOMOSEXUALS? • U.S. Supreme Court (5-4 Decision): • The Right of Privacy as Decided in Griswold … • Is Limited to the Rights of Heterosexual Couples… • Acting Within Their Marriage, Family, & Procreation Rights … • Does NOT Apply to All Types of Private Sexual Conduct … • Does NOT Protect Homosexuals Exercising the Choice to Engage in Homosexual Sodomy

16. REVISITING THE ISSUE RECENTLY • Boy Scouts of America (BSA v. Dale, 2000) • Learned BSA Member James Dale Was Gay … • Revoked James Dale’s Membership • Dale Sued • U.S. Supreme Court Found the BSA Rights of Free Association Would Be Violated … • If They Were Forced to Accept a Member They Did Not Want

17. Q: ARE APPELLATE COURT PRECEDENTS REALLY FINAL? • What About Changes In Legality of Abortion? • EX: Webster v. Reproductive Health Services (1989, Missouri): Allowed Some Restrictions; Overturned Trimester Rule • Planned Parenthood of SE PA v. Casey (1992): Considered Overturning Roe – Altered Limits (24 Hr. Wait; Parental Consent; NOT Spousal Consent • Steinberg v. Carhart (2000, Nebraska): Banned Intact Dilation & Extraction – Partial Birth Abortion – Other Means Allowed – Right to Abortion Maintained

18. REVISITING THE ISSUE (2) • Lawrence v. Texas (2003): Again Raised Issue of Right to Intimate Relations Among Homosexuals • Justice Anthony Kennedy (Majority): Statute Which Make It a Crime to Engage in Certain Types of Intimate Conduct Violates Due Process Clause • Justice Sandra Day O’Connor: Concurred Based on Issue of Discrimination, Not Sexual Privacy (i.e., Would Have Broader Implications Than Sex) • Justice Antonin Scalia (Dissent): Objected Due to Possible Exclusion of Many “Immoral” Acts – Said Legal Profession Too Favorable to Homosexuals

19. LEGALITY OF ABORTION (CTD) • Federal Partial-Birth Abortion Ban Act (2003) • Is It Legal? – Gonzales v. Carhart (2007) • Does It Require an Exception for Mother’s Health? • Justice Anthony Kennedy (Majority): Yes, Legal • Justice Ruth Bader Ginsberg (Dissent): No, Not Legal – Violates Court’s Holding in All Previous Cases That All Limits to Abortion Must Include an Exception for Health of Mother

20. PRECEDENTSCONCLUSION (?!) • What Happens re Appellate Court Decisions? • What Constitutes a “Precedent”? • Are Precedents Ever Really Final? • What DO They Lead To? • More Controversy … & New Decisions!

21. JUDICIAL PARTICIPANTS – ARE THEY REALLY IMPARTIAL? • Issue: Conservative Complaints: Courts Too Activist • “Liberal” Judges Were “Too Activist” … • Pushing Own Political Views … • Should Be “Strict Constructionist” • Source: Mark Tushnet, “Rehnquist Court & Judicial Activism.” Chronicle of Higher Education Review 11/26/04 (B 9-10). (Georgetown Univ.) One of Long Series of Studies of Supreme Court Decisions from 1980-present

22. REHNQUIST COURT – EARLY 2000s • 3 Equal Sized Groups: • “New Republicans”: Wm Rehnquist (dec’d), Charles Thomas, Antonin Scalia (Follow Conservative Views of Goldwater, Reagan, Bush) • Traditional Republicans: Sandra Day O’Connor (resigned by publication), David Souter, Anthony Kennedy (Libertarian) (“Northeast” Oriented) • Democrats: Steven Bryer, Ruth Bader Ginsberg, John Paul Stevens (Liberal)

23. REHNQUIST COURT REPLACEMENTS • John Roberts (Replacing Chief Justice Rehnquist in 9/05) • Samuel Alito (replacing S.D. O’Connor 1/06) • Both Presumed to Be Conservative “New Republicans”

24. IS THE COURT “LIBERAL ACTIVIST”? • Author Tushnet’s Claim: • Court Is No Different from General U.S. Social Pattern: • Bush’s Economic Changes Went Through Easily • Social Changes(School Vouchers)More Trouble • Therefore, Supreme Court Reflects Society As a Whole

25. WHAT CAN/DOES SUPREME COURT DO? • Can Push Issues Up or Down • EX: Affirmative Action Issues Went DOWN After U-M Decisions in 2003 • Gay Marriage Went UP After Lawrence v. Tex. Decision (2002) • Can Deal With Unexpected Issues (Bush v. Gore, 2002)

26. IMPACT OF ANALYSIS OF REHNQUIST COURT • Showed Judicial Activism In NOT a Division Between Liberal And Conservative Views … • ALL Justices Have Been Activist … • Willing to Rethink the Constitution and Precedent … • In Order to REFRAME THE LAW

27. “REFRAMING THE LAW” • Court Restricted Congress’ Power to Impose Regulations on State Government … • O’Connor (Traditional, Moderate Repub) … • Joins New Conserv Repub to Restrict Congress • She Doesn’t Believe Original Understandings of Constitution on This Issue • Souter (Also Trad Mod Repub) … Disagrees … • Believes This Incompatible with Sensible, Modern Government

28. ENFORCING CONGRESSIONAL BOUNDARIES • Rehnquist Court Believes Congress Must Respect Constitutional Limitations … • Recent Democratic Congresses Went Too Far… • Was Too Politically “Activist” • BUT Rehnquist Was ALSO Politically Activist … • Promoting ITS OWN POLITICAL AGENDA … “Anti-Democrat” … • NOT Following a Conservative View of Constitution!

29. WHAT TUSHNET MEANS • BOTH Conservatives & Liberals Are Activist … • Rehnquist Court Was Acting In a Political Manner – Imposing Limits on Congress … • Doing What Conservatives Do … i.e., Reflect Their Views That Government Goes Too Far … • Limiting the Power of a Democratic Congress… • NOT Defending Alleged Position of Framers of Constitution (as Conservatives Claimed)

30. WHY DIDN’T REHNQUIST COURT DO MORE CONSERVATIVE CHANGE? • Originated From Republican Party … • Like the Republican Party … • It Is a COALITION of … • ECONOMIC Conservatives … • Support Social Change, Not Economic Change • SOCIAL Conservatives … • Support Economic Change, Not Social Change

31. EX: KENNEDY: LAWRENCE V. TEX • Kennedy (Traditional Economic – NOT Social Republican) … • Not Souter (Closer to Dems) • Wrote Lawrence v. Texas (Key Gay Rights Case) • & Lee v. Wisc. (Banned School Prayer) – Why? • Tushnet: 3 Possibilities: • Hold Him in Majority – Symbolize Court Unity – Emphasize Moderate Character of Decision

32. TUSHNET & SIDNEY ULMER • Tushnet’s View Is Very Similar to … • Position of Sidney Ulmer … • Who Conducted Similar Studies of Supreme Court in 1980s … • Came to Similar Conclusions.

33. WHAT HAPPENS NEXT? • Tushnet Says This Depends … • On Who replaces Whom • It Could Become Very Anti-Environment & Economically Conservative … • Which O’Connor & Souter Had Prevented in Rehnquist Court … • Or It Could Become Very SOCIALLY Conservative … • Like Justices Scalia & Thomas

34. WHAT WILL IT DO? • Court Reluctant to Let Itself Be Seen As “Reversing Itself” at Random • Tushnet: If Bush Thought Rehnquist Ct. Would Allow Him to Do Whatever It Wants … • It Was Wrong! • EX: Court’s Position in Gonzales v. O Centro Espiriata Beneficiente Uniao Do Vegetal

35. WHAT IS THIS CASE? • Uniao Do Vegetal Is a N. Mex. Religious Group • Uses “Hoasca” (Brasilian Hallucinogenic) as a Sacrament • Fed. Drug Admin Seized the Tea in 1999 • S. Ct. Unanimously Said FDA Violated Group’s Freedom of Religion

36. HOW DOES THIS FIT WITH CONSERVATIVE VIEWS? • Religious Right – Including Bush & Supporters … & SOCIAL Conservatives Are: • Strong Supporters of Individual Freedom of Conscience (Pharmacists Must Be Allowed to Follow Consciences – Not Dispense Birth Control … AND • Strong Opponents of ANY Use of Hallucinogenic Drugs … They Must Be Banned

37. HOW DOES THIS RELATE TO THIS DECISION? • S. Ct. Clearly Took Position That The “Right to Follow One’s Conscience … • Had to Be Extended to Persons Engaging in Behavior Which the Religious Right Considered Reprehensible … • Making Many Conservatives Very Unhappy with It

38. TUSHNET’S CONCLUSION? • Basic Constitutional Law Principles Continue … • Regardless of Who Sits on the Court • Both Conservatives & Liberals Tend to Be Judicial Activists … • Many Decisions Involve Different Components of the Constitution … • Which May Conflict With Each Other • As in the Freedom of Conscience vs. Banning of Hallucinogenic Substances Illustrates