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a) Article I, section 8, Necessary and Proper Clause & National Supremacy
b) Among the States unhappy with the establishment of the Second Bank of the United States was Maryland. In those days, before the establishment of a single national currency, local banks not only made loans, but also issued their own bank notes to serve as hand-to-hand, daily-use currency. Since State laws did not always adequately restrain these banks, they often issued more notes than they were able to redeem on demand, with the result that holders of these notes were in constant danger of losing their investment. The national bank often publicly identified State banks that had over-extended their notes and refused to accept notes from those banks - including many in the State of Maryland.
The Maryland legislature responded to this intrusion of federal authority by levying a tax on all branches of banks "not chartered by the State of Maryland" - a move aimed at destroying the Baltimore branch of the Bank of the United States. When called upon to pay the $15,000 annual tax, James McCulloch, manager of the Baltimore branch, refused. McCulloch was convicted by a Maryland court and fined $2,500. He appealed the decision to the Maryland Supreme Court, who affirmed. Finally, McCulloch appealed to the United States Supreme Court.
c) Issue: Which is predominate; the Union or the States? Should the powers the Constitution grants to the Federal Government be interpreted broadly of narrowly?
d) Decision: In an important strengthening of the Court's authority, the decision declared a Maryland tax on the bank of the United States unconstitutional, declaring the Federal Government supreme and upholding the concept of "implied powers."
e) The Court declared the Maryland law unconstitutional, commenting "...the power to tax implies the power to destroy."
a) In 1807, Robert Fulton's steamboat, the Claremont, successfully navigated the Hudson River in New York. Fulton and his partner, Robert Livingston, negotiated a deal whereby the New York State legislature would grant them an exclusive, long-term contract to operate and license all steam-powered vessels in the waters of New York. Aaron Ogden obtained a license from Livingston to operate steam-powered ferryboats on the Hudson between New York and New Jersey. Meanwhile, in New Jersey, Thomas Gibbons made his living carrying passengers by steamboat from the small town of Elizabethport, New Jersey, just outside New York harbor, to New York City. Gibbons operated under a coasting license granted by the Federal Government, rather than under a license issued by either State. Because Gibbons had no New York license, Ogden asked the New York courts to issue an injunction forbidding him landing rights to the port of New York. The New York courts issued the requested injunction.
Gibbons appealed to the United States courts, arguing that his possession of a federal coasting license superseded New York State's licensing requirements.
b) Issue: Does Congress have the power to regulate commerce between the States? Is the authority of Congress greater than the authority of the States?
c) Decision: The Court struck down a New York law that conflicted with congressional power to regulate interstate commerce. In doing so it again ruled that federal laws-for example, constitutional law or acts of Congress- took precedence over the laws of the states.
a) During the Red Scare, officials in New York State actively sought to enforce a law forbidding "criminal anarchy," passed by the State in 1902. The law imposed criminal penalties on anyone who advocated a violent overthrow of the government.
Benjamin Gitlow was a member of the Left Wing faction of the American Socialist party, a faction formed in opposition to that party's advocacy of moderate socialism in the United States, rather than revolution. In 1919, the Left Wing announced their break from the party at a convention in New York City. They advocated more immediate attempts to bring socialism to American, including the use of violence. The Left Wing convention appointed a writing committee to create a "Left Wing Manifesto" under Gitlow's leadership. Modeled on the Communist Manifesto by Karl Marx and Freidrich Engels, the Left Wing Manifesto advocated the overthrow of organized government by force, violence, and other unlawful means.
Sixteen thousands copies of the manifesto were printed, wrapped, and mailed under Gitlow's leadership. The June issue of Gitlow's radical pamphlet, The Revolutionary Age, reprinted the document. Gitlow signed a card in support of circulating the manifesto among membership of the American Socialist Party's left wing, and traveled to different parts of New York to publicly advocate the manifesto and its principles. He was arrested, charged with criminal anarchy, convicted, and sentenced.
b) Issue: Were state laws and State Courts bound by the Bill of Rights? Specifically, were states bound to uphold the 1st Amendment?
c) Decision: While refusing to overturn the New York law challenged by this case, the Court made it clear that the 14th Amendment had "incorporated" parts of the Bill of Rights into state constitutions. This decision set a percent for broad future readings of 14th Amendment cases, through which the Bill of Rights was incorporated into state constitutions.
d) For the first time the Court decided whether the 1st & 14th amendments had influence on State Laws. The case created the "selective incorporation" doctrine, under which the provisions of the 1st amendment were "incorporated" by the 14th amendment, indicating that the Supreme Court could invalidate State Laws.
a) $= Speech
b) In the wake of the Watergate affair, Congress attempted to ferret out corruption in political campaigns by restricting financial contributions to candidates. Among other things, the law set limits on the amount of money an individual could contribute to a single campaign and it required reporting of contributions above a certain threshold amount. The Federal Election Commission was created to enforce the statute.
The question presented was whether the limits placed on electoral expenditures by the Federal Election Campaign Act of 1971, and related provisions of the Internal Revenue Code of 1954, violate the First Amendment's freedom of speech and association clauses.
In this complicated case, the Court arrived at two important conclusions.
c) First, it held that restrictions on individual contributions to political campaigns and candidates did not violate the First Amendment since the limitations of the FECA enhance the "integrity of our system of representative democracy" by guarding against unscrupulous practices.
d) Second, the Court found that governmental restriction of independent expenditures in campaigns, the limitation on expenditures by candidates from their own personal or family resources, and the limitation on total campaign expenditures did violate the First Amendment. Since these practices do not necessarily enhance the potential for corruption that individual contributions to candidates do, the Court found that restricting them did not serve a government interest great enough to warrant a curtailment on free speech and association.
a) On April 26, 1983, 17-year-old Matthew Fraser, a senior at Bethel High School in Bethel, Oregon, spoke to a school assembly to nominate a classmate for vice president of the student government. Students were required either to attend the assembly or go to study hall. Prior to the assembly, Matthew consulted three teachers about a short speech he proposed to present. Two of the faculty said out-right that he would not deliver the speech because it was "inappropriate." The text of the speech was filled with sexual references and innuendos, although it contained no obscenities or vulgarities. On the day of the assembly, Fraser delivered the speech with enthusiasm and emphasis, and the "faculty and student body were stunned." The speech was greeted by his classmates with hoots, cheers, and lewd motions. Kuhlman, the candidate nominated by Matthew Frasier, was elected by a wide margin.
On the day after the speech, Fraser was called to the office and told he "had violated the school's disruptive conduct rule which prohibits 'conduct which materially and substantially interferes with the educational process . . . including the use of obscene, profane language or gestures.'" At that first hearing Fraser admitted that he had used sexual innuendoes in his speech.
Fraser was suspended from school for three days, and "removed from the list of students who were eligible to make graduation remarks . . ." because school authorities "no longer had confidence in his judgment. . . ." He ranked second in his graduation class at the time. His parents appealed the school district's disciplinary action. The Oregon Supreme Court upheld Fraser's right to free speech. The school district then appealed to the United States Supreme Court.
b) Question: Does the First Amendment prevent a school district from disciplining a high school student for giving a lewd speech at a high school assembly?
c) Conclusion: No. The Court found that it was appropriate for the school to prohibit the use of vulgar and offensive language. Chief Justice Burger distinguished between political speech which the Court previously had protected in Tinker v. Des Moines Independent Community School District (1969) and the supposed sexual content of Fraser's message at the assembly. Burger concluded that the First Amendment did not prohibit schools from prohibiting vulgar and lewd speech since such discourse was inconsistent with the "fundamental values of public school education."
d) Ruling- The school's discipline was constitutional
e) Precedent- schools may limit student's speech if it interferes with the educational process
a) A New Jersey State law authorized local school districts to make arrangements and rules for transporting children to public and private nonprofit schools. One school district, Eqing Township, directed students to use the public bus system to get to and from school, and then reimbursed their parents for the costs. The township made payments to parents of both public school students and students of private, Catholic schools -- payments that were permitted under State law.
One taxpayer, a Mr. Everson, brought suit against the Board of Education. In State court, he argued that money collected as taxes for public education was being used instead to help support students of private schools -- private schools that provided religious education on behalf of a particular church. Everson claimed that the payments to parents of parochial school students violated the constitutional guarantee against the "establishment" of a religion contained in the 1st Amendment to the United States Constitution. The school board, Everson believed, had violated the constitutionally guaranteed "separation of church and state."
b) Issue: Did the state of New Jersey violate the 1st Amendment's Establishment Clause by providing funds for school-bus transportation for children attending parochial schools?
c) Decision: The court ruled the New Jersey could continue payments because the payments could be considered aid to children rather than "support for religion by government." The decision, though, reiterated the "wall of separation" between church and state.
d) The decision stated that the wall separating Church & state must be kept "high and impregnable." This was a clear incorporation of 1st amendment limits on States.
a) In 1951 the New York State Board of Regents (State Board of Education) approved a 22-word "non-denominational prayer" for recitation each morning in the public schools of New York. It read: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country." The Regents believed that the prayer could be a useful tool for the development of character and good citizenship among the students of the State of New York. The prayer was offered to the school boards in the State for their use, and participation in the "prayer-exercise" was completely voluntary. In New Hyde Park, New York, the Union Free School District No. 9 directed the local principal to have the prayer said aloud by each class in the presence of a teacher at the beginning of each school day.
The parents of ten pupils in the New Hyde Park schools objected to the prayer. They filed suit in the New York State court seeking a ban on the prayer, insisting that the use of this official prayer in the public schools was contrary to their own and their children's beliefs, religions, or religious practices. The State court upheld the use of the prayer, "so long as the schools did not compel any pupil to join in the prayer over his or his parents' objections."
b) Issue: Did the daily recitation of a nonsectarian prayer composed by the New York State Board of Regents violate the 1st Amendment's Establishment Clause
c) Decision: In a decision that struck down the recitation of prayers in the public schools, the court stated that "... each separate government in this country should stay out of the business of writing or sanctioning official prayers." *d)Precedent- Supreme Court outlawed the use, even on a voluntary basis, of prayer in schools.**
a) In Lemon v. Kurtzman the Court considered a Pennsylvania law that allowed the State superintendent of schools to "purchase" certain educational services from parochial schools. The State reimbursed the parochial schools for books, materials, and teachers' salaries as long as the courses taught were "secular" and the superintendent approved the books. A group of Pennsylvania residents, including Lemon, sought an injunction against Kurtzman, the superintendent of public instruction for the State of Pennsylvania, in a Pennsylvania federal court. The court upheld the Pennsylvania law as being legal and constitutional under the 1st Amendment. Lemon and the group appealed.
In the second case, Earley v. DiCenso, a Rhode Island State law established a fund to pay a 15 percent salary supplement to teachers in parochial schools under certain specific conditions. The schools could not exceed the per-pupil expenditures for secular subjects taught in public schools. The teachers whose salaries were being supplemented had to teach secular subjects as they were taught in public schools. They had to use the same books and materials, and they could not give religious instruction. The supplement was paid to about 250 teachers in Roman Catholic schools. Rhode Island taxpayers (DiCenso) brought suit against the State's Department of Education (Earley) in a federal court. The court found the Rhode Island law a violation of the separation of church and state as defined by the United States Supreme Court. Rhode Island appealed.
b) Issue: Was aid to church- supported schools provided by several States a violation of the separation of church and state?
c) Decision: The Court overturned the States laws, ruling against "excessive entanglements" by government in religious affairs. It created the three part Lemon test to examine aid to religious institutions by State and local governments.
****d) LEMON TEST: 3 criteria********
i) Purpose of aid must be secular
ii) Its primary effect must neither advance nor inhibit religion
iii) It must avoid "excessive entanglement of government with religion"
a) The United States Supreme Court set a new standard for searches in schools in this case, stating that the school had a "legitimate need to maintain an environment in which the learning can take place," and that to do this "requires some easing of the restrictions to which searches by public authorities are ordinarily subject . . . ." The Supreme Court thus created a "reasonable suspicion" rule for school searches, a change from the probable cause" requirement in the wider society.
b) Question: Did the search violate the Fourth and Fourteenth Amendments?
c) Conclusion: No. Citing the peculiarities associated with searches on school grounds, the Court abandoned its requirement that searches be conducted only when a "probable cause" exists that an individual has violated the law. The Court used a less strict standard of "reasonableness" to conclude that the search did not violate the Constitution. The presence of rolling papers in the purse gave rise to a reasonable suspicion in the principal's mind that T.L.O. may have been carrying drugs, thus, justifying a more thorough search of the purse
d) The Court set a new standard for searches in schools in this case, stating that the school had a "legitimate need to maintain an environment in which learning can take place," and that to do this "requires some easing of the restrictions to which searches by public authorities are ordinarily subject..." The Court this created a "reasonable suspicion" rule for school searches, a change from the "probable cause" requirement in the wider society.
a) Danny Escobedo was taken into custody by Chicago Police at 2:30 a.m. on January 20 in connection with the shooting of one of his relatives the night before. After an 18-hour interrogation, and without an attorney to represent him, Escobedo was released, having made no self-incriminating statement. When police later arrested Benedict DiGerlando, a friend of Escobedo, DeGerlando told police that Escobedo had fired the fatal shots, and Escobedo was arrested once again. Police told him that "although not formally charged, he was in custody and couldn't walk out the door."
Escobedo's attorney arrived shortly after his client had been taken into custody the second time. The attorney was repeatedly denied permission to talk to Escobedo, who was interrogated all night, from nine o'clock at night until five o'clock in the morning. Escobedo asked to speak with his lawyer "repeatedly," but the police kept telling him that his attorney did not want to see him. Throughout the interrogation, the suspect was kept standing, hands cuffed behind his back. He was told that DiGerlando had accused him of the murder. Allowed to confront his accuser, Escobedo told DiGerlando, "I didn't kill Manuel, you did it." Becoming more emotional, Escobedo made statements concerning his connection with the crime, which were later used to convict him of murder in an Illinois court.
b) Because Escobedo was not afforded council while under interrogation, the Court extended the "exclusionary rule" to illegal confessions in State court proceedings. Carefully, defining an Escobedo rule, the Court said, "where the investigation is no longer a general inquiry...but has begun to focus on a particular suspect... and where the suspect has been taken into custody... the suspect has requested... his lawyer, and the police have not warned him right to remain silent, the accused has been denied counsel in violation of the Sixth Amendment.
a) 5, 6, and 14th amendments
b) A kidnapping and sexual assault occurred near Phoenix, Arizona, in March 1963. On March 13, 1963, Ernesto Miranda, 23, a Mexican national, was arrested in his home, taken to the police station, identified by the victim, and taken into an interrogation room. When he found out that he had been charged with several crimes, he repeatedly asked for an attorney but his requests were refused. Two hours later, investigators emerged from the room with a written confession signed by Miranda. It included a typed disclaimer, also signed by Miranda, stating that he had "full knowledge of his legal rights, understanding any statement I make may be used against me," and that he had knowingly waived, i.e., gave up, those rights.
Two weeks later at a preliminary hearing, Miranda again was denied counsel. Finally, at his arraignment, a 73-year-old attorney who had not practiced criminal law in 16 years was appointed to defend him. The lawyer persuaded Miranda to plead guilty by reason of insanity. Miranda was convicted of robbery, and later of kidnapping and sexual assault.
c) Issue: Was a confession admissible in court if the defendant had not received adequate warning of his or her constitutional rights?
d) Decision: Miranda's confession to authorities was ruled illegal, and his conviction struck down. With this case, the Court established the reading of the "Miranda Warning" for all defendants when " questioning became specific..."
e) Miranda rights "have a right to remain silent, that anything said can be used in Court, right to an attorney, if he can't afford one, one will be appointed for him" etc.
a) Dred Scott was a slave in Missouri. From 1833 to 1843, he resided in Illinois (a free state) and in an area of the Louisiana Territory, where slavery was forbidden by the Missouri Compromise of 1820. After returning to Missouri, Scott sued unsuccessfully in the Missouri courts for his freedom, claiming that his residence in free territory made him a free man. Scott then brought a new suit in federal court. Scott's master maintained that no pure-blooded Negro of African descent and the descendant of slaves could be a citizen in the sense of Article III of the Constitution. The simple question was whether Dred Scott was free or still a slave? The Supreme Court held that Dred Scott was a slave. Under Articles III and IV, argued Taney, no one but a citizen of the United States could be a citizen of a state, and that only Congress could confer national citizenship. Taney reached the conclusion that no person descended from an American slave had ever been a citizen for Article III purposes. The Court then held the Missouri Compromise unconstitutional, hoping to end the slavery question once and for all.
b) Issue: Under the law, were slaves to be considered "persons" or property? Could Congress decide whether slavery would be banned from certain territories?
c) Decision: Dred Scott, a fugitive slave, was ruled to be still a slave; as such he was not a citizen and could not seek redress in federal courts. The decision also overturned federal laws limiting the expansion of slavery into "free territories and States" because it deprived citizens of their property (that is, slaves) without "due process of law."
d) The Court upheld property rights over human rights.
a) The state of Louisiana enacted a law that required separate railway cars for blacks and whites. In 1892, Homer Adolph Plessy--who was seven-eighths Caucasian--took a seat in a "whites only" car of a Louisiana train. He refused to move to the car reserved for blacks and was arrested. The question presented was whether Louisiana's law mandating racial segregation on its trains an unconstitutional infringement on both the privileges and immunities and the equal protection clauses of the Fourteenth Amendment? The Supreme Court held that it did not, noting that the state law was within constitutional boundaries. The majority upheld state-imposed racial segregation. The justices based their decision on the separate-but-equal doctrine, that separate facilities for blacks and whites satisfied the Fourteenth Amendment so long as they were equal. (The phrase, "separate but equal" was not part of the opinion.) Brown conceded that the 14th amendment intended to establish absolute equality for the races before the law. But Brown noted that "in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races unsatisfactory to either." In short, segregation does not in itself constitute unlawful discrimination.
b) Issue: Were segregated-but-equal public facilities permitted under the 13th and 14th amendment?
c) Decision: Taking the Civil Rights Cases ruling a step further, the Court ruled public-sector segregation legal as long as "facilities were equal." The decision began the 58-year reign of the doctrine of "separate but equal." Brown V. Board of Education of Topeka overturned it in 1954.
d) Separate but equal facilities were allowed and did not violate the "equal protection clause" in the Constitution.
a) 14th amendment (equal protection clause)
b) Black children were denied admission to public schools attended by white children under laws requiring or permitting segregation according to the races. The white and black schools approached equality in terms of buildings, curricula, qualifications, and teacher salaries. The question presented before the Supreme Court was whether the segregation of children in public schools, based solely on the basis of race, deprived the minority children of the equal protection of the laws guaranteed by the 14th Amendment? The Supreme Court held that it did. Despite the equalization of the schools by "objective" factors, intangible issues foster and maintain inequality. Racial segregation in public education has a detrimental effect on minority children because it is interpreted as a sign of inferiority. The long-held doctrine that separate facilities were permissible provided they were equal was rejected. In overruling Plessy v. Ferguson, the Court held that separate but equal was inherently unequal in the context of public education. The unanimous opinion sounded the death-knell for all forms of state-maintained racial separation.
c) Issue: Was segregation by race in public schools a fundamental violation of the Equal Protection Clause of the 14th Amendment?
d) Decision: Proclaiming that "Segregation in the public schools has no other place," this far-reaching decision struck down State segregation laws, declared the Plessy precedent ("separate but equal") unconstitutional, and called for the integration of all public schools (with "all deliberate speed" as a later decision put it).
a) This case concerned Bob Jones University, a Christian school located in Greenville, South Carolina. About half of the school's 5,000 students, from kindergarten through college and graduate school, were studying for the ministry or some other Christian service. As a private, religious school, Bob Jones University accepted no federal, Sate, or local government funding. Nor, as a tax-exempt, charitable organization under Section 501(c)(3) of the Tax Code, did it pay any taxes. The school's administration believed that the Bible prohibited dancing, movies, jazz and rock music, as well as interracial dating and marriage. These beliefs were enforced through a code of student conduct. No African Americans were admitted to Bob Jones University before 1971. Between 1971 and 1975, only married African American couples could be admitted. After 1975, African Americans could be admitted regardless of martial status, but the policy banning interracial dating and marriage was strictly enforced.
Meanwhile, the Internal Revenue Service (IRS) became part of a concerted effort to combat racial discrimination in schools throughout the country. The IRS determined that the Federal Government had established a "public policy" that prohibited the granting of any public subsidy to public or private educational institutions that practiced discrimination. In the 1970s, the IRS ruled that a private school could no longer be ruled a "charitable" organization unless its admissions and educational policies were nondiscriminatory. The tax-exempt status of discriminatory institutions would be revoked. Decisions by federal courts and federal courts of appeals upheld the policy of the IRS.
Under this new interpretation of federal "public policy," the IRS revoked Bob Jones University's tax-exempt status. To recover its lost status, the university paid a $21 unemployment tax to the Federal Government and then sued, as a tax-exempt institution, to recover the money. The IRS responded with a bill for $490,000 in back taxes, which the agency said were owed from 1971 to 1975 when the university was tax-exempt.
b) Issue: Could the Internal Revenue Service deny a tax-exempt status to a religious university that had discriminatory admission practices?
c) Decision: The Court upheld the IRS action stating that " ... the Government has a fundamental overriding racial discrimination in education.
a) Thirty-two-year-old Nancy Cruzan was in an automobile accident in 1983. Massive injuries resulted in her falling into an unconscious state, unresponsive to outside stimulation. She was placed on life-support equipment and was fed intravenously for four years. Nancy was not "brain dead," but the parts of her brain that controlled bodily functions had atrophied and had ceased to function. Although doctors felt that she could endure many more years in her present condition -- that is, with her life functions carried out by machine support -- her own doctor said she had no chance of recovery.
In 1987, four years after the accident and facing a hopeless prognosis, Nancy's parents asked that their daughter's feeding tubes be disconnected. By then, most of the $130,000 annual cost for her hospitalization was being paid by the State of Missouri. The catastrophic cost of Nancy's care had exhausted the family's resources in the preceding years.
A Missouri district court granted the request of the Cruzan family, but the director of the Missouri Department of Health took the case on appeal to the Missouri Supreme Court. Missouri insisted on a "high standard of proof" of Cruzan's wish to die. The State argued that Cruzan's casual statement before the accident that she "would not want to live as a vegetable" was not "clear and convincing evidence" that she would want to be taken off the life-support equipment. The Missouri Supreme Court refused to authorize the termination of artificial feeding for Nancy. Life support was continued and the Cruzans appealed to the United States Supreme Court.
b) Question: Did the Due Process Clause of the Fourteenth Amendment permit Cruzan's parents to refuse life-sustaining treatment on their daughter's behalf?
c) Conclusion: In a 5-to-4 decision, the Court held that while individuals enjoyed the right to refuse medical treatment under the Due Process Clause, incompetent persons were not able to exercise such rights. Absent "clear and convincing" evidence that Cruzan desired treatment to be withdrawn, the Court found the State of Missouri's actions designed to preserve human life to be constitutional. Because there was no guarantee family members would always act in the best interests of incompetent patients, and because erroneous decisions to withdraw treatment were irreversible, the Court upheld the state's heightened evidentiary requirements.
a) Malapportionment violated the 14th amendment
b) As in most States, the Tennessee State legislature occasionally redrew district lines so that the seats in the legislature reflected population changes. Across the State, however, the counties with the largest populations tended to have the fewest representatives. Census figures, reflecting imbalances almost as high as 20 to 1 in some districts, showed that "a single vote in Moore County, Tennessee, [was] worth 19 votes in Hamilton County, [and] that one vote in Stewart County or Chester County [was] worth nearly eight times a single vote in Shelby or Knox County." These imbalances resulted in the rural domination of the Tennessee legislature, which tended to overlook problems of growing cities, such as Memphis and Nashville, where many African Americans had settled. As of 1960 no changes in district lines had been made by the Tennessee legislature since 1901, despite the growth of the cities and other population shifts.
Nashville's Mayor Baker filed a suit against the State in federal district court to force a redistricting by the Tennessee legislature. He asked the court to prevent Tennessee from conducting any more elections until districts could be divided more evenly and fairly. Using the precedent of Colegrove v. Green, 1946, the federal district court denied "standing" __ the right to sue -- because the case was a Tennessee political question and thus not a matter for a federal court. Baker appealed.
c) Question: Did the Supreme Court have jurisdiction over questions of legislative apportionment?
d) Conclusion: In an opinion which explored the nature of "political questions" and the appropriateness of Court action in them, the Court held that there were no such questions to be answered in this case and that legislative apportionment was a justiciable issue. In his opinion, Justice Brennan provided past examples in which the Court had intervened to correct constitutional violations in matters pertaining to state administration and the officers through whom state affairs are conducted. Brennan concluded that the Fourteenth Amendment equal protection issues which Baker and others raised in this case merited judicial evaluation.
a) Following the U.S. Supreme Court's decision in Bush v. Palm Beach County Canvassing Board, and concurrent with Vice President Al Gore's contest of the certification of Florida presidential election results, on December 8, 2000 the Florida Supreme Court ordered that the Circuit Court in Leon County tabulate by hand 9000 contested ballots from Miami-Dade County. It also ordered that every county in Florida must immediately begin manually recounting all "under-votes" (ballots which did not indicate a vote for president) because there were enough contested ballots to place the outcome of the election in doubt. Governor George Bush and his running mate, Richard Cheney, filed a request for review in the U.S. Supreme Court and sought an emergency petition for a stay of the Florida Supreme Court's decision. The U.S. Supreme Court granted review and issued the stay on December 9. It heard oral argument two days later.
b) Question: Did the Florida Supreme Court violate Article II Section 1 Clause 2 of the U.S. Constitution by making new election law? Do standardless manual recounts violate the Equal Protection and Due Process Clauses of the Constitution?
c) Noting that the Equal Protection clause guarantees individuals that their ballots cannot be devalued by "later arbitrary and disparate treatment," the per curiam opinion held 7-2 that the Florida Supreme Court's scheme for recounting ballots was unconstitutional. Even if the recount was fair in theory, it was unfair in practice. The record suggested that different standards were applied from ballot to ballot, precinct to precinct, and county to county. Because of those and other procedural difficulties, the court held that no constitutional recount could be fashioned in the time remaining (which was short because the Florida legislature wanted to take advantage of the "safe harbor" provided by 3 USC Section 5). Loathe to make broad precedents, the per curiam opinion limited its holding to the present case. Rehnquist (in a concurring opinion joined by Scalia and Thomas) argued that the recount scheme was also unconstitutional because the Florida Supreme Court's decision made new election law, which only the state legislature may do. Breyer and Souter (writing separately) agreed with the per curiam holding that the Florida Court's recount scheme violated the Equal Protection Clause, but they dissented with respect to the remedy, believing that a constitutional recount could be fashioned. Time is insubstantial when constitutional rights are at stake. Ginsburg and Stevens (writing separately) argued that for reasons of federalism, the Florida Supreme Court's decision ought to be respected. Moreover, the Florida decision was fundamentally right; the Constitution requires that every vote be counted.