Master Summary:

Who decides?1. Who decides who decides?

a. Marbury2. Congress or the States?

a. Federalismi. Wickard, Lopez, Morrison, Raich

ii. Usery, Garcia, NY v. US “Anti-Commandeering”, circumvented by conditioning funds, SD v. Dole

iii. Gregory v. Ashcroft “Clear Statement Rule”b. necessary and proper clause

i. McCulloch v. MD – expansive interpretation of necessary and proper.

3. Judicial Branch or the States?a. Dormant Commerce Clause:

i. (Dean’s Milk, Philly v. NJ, Carbone, Barnwell, Southern Pacific, Kassel, Hughes (MD scrap cars), Reeves (SD cement), Wunnicke, United Haulers)

4. SCOTUS or legislatures?a. Political Question

i. Nixon, not Baker v. Carr, (perhaps bc that’s concerning the functioning of democracy)

b. Equal Protection (Heightened scrutiny, Intermediate scrutiny, Rational basis with teeth, Rational basis)

i.c. Fundamental (unenumerated) Rights (Strict Scrutiny or Rational

Basis)i.

5. The Courts or the Executive?a. Marbury

6. The Courts or Congress?a. Boumediene (habeas corpus)b. INS v. Chadha (bicameralism + presentment)

7. Executive Branch or Congressa. Steel Seizure (3 Tiers)b. Curtiss-Wright (foreign powers – presumed to be zone three)c. Dames and Moore – does Congressional silence make it Tier 2?

Probably, foreign policy too.8. Nobody decides

a. Standingi. Mass v. EPA - , Lujan)

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Judicial Review

1. No judicial review: Court can only decide who the law says should win the case

2. Judicial Review: Court can just strike down the law as unconst.3. Judicial Review does not cover non-justiciable political questions.4. Judicial Review only applies to the particular “case or controversy” at

hand.a. It only binds the legislature or executive to the extent that they

don’t want to keep getting overturned.

How should the Const be interpreted?

1. Judicial Restraint a. Deference to law-making bodies.

i. McCulloch – deference even to law-making bodies to infer implied powers.

b. Inconsistently applied2. Representative-Reinforcement

a. Deference only when the democratic process is workingi. Excluding challenges arising from Bill of Rights, ‘discrete or

insular minorities,’ or democratic process (Carolene f. 4)3. Natural Law

a. Judges use natural law to choose the “best fit” analogue to the case at bar.

b. E.g. was Parents Involved more like Grutter or more like Brown (anti-subordination version)?

4. Originalism a. “Original intent” versus “original public meaning.”b. Problems with originalism

i. The electorate then was woefully undemocraticii. Originalism would upend centuries of jurisprudence: Bolling

v. Sharpeiii. Historical review doesn’t provide neat answers.

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Judicial Power1. What ARTICLE III says

a. Vests the judicial power “in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish.”

b. Accorded all federal judges life tenure, “during good behavior.”c. Article III, §2, nine categories of “cases” and “controversies.”

i. To enforce powers of federal govt1. Authority to decide all cases arising under Const,

treaties, and laws of the US2. Cases in which the US is a party3. Hear all cases affecting ambassadors

ii. Interstate umpiringiii. SCOTUS has org jrd over ambassador cases, and those in

which a state is a party.1. Otherwise, SCOTUS has appellate jrd.

2. Who should be the AUTHORITATIVE INTERPRETER of the Const?a. (Maybe SCOTUS should just be the highest court for civil and

criminal cases. Who says it can tell Congress its law is unconst?)b. Marbury

i. SCOTUS could not hear the case bc it didn’t have org jrd, bc the Judiciary Act authorizing it was unconst.

ii. SCOTUS has authority to review constitutionality of executive actions. (See U.S. v. Nixon)

iii. SCOTUS can declare laws unconst.1. Const limits on government powers are meaningless

unless subject to govt enforcement2. “It is emphatically the province and duty of the judicial

department to say what the law is.”3. Judges take an oath to defend the Const., and that they

would violate it if they enforced unconst laws.4. Const is the supreme law of the land.

c. Hunter’s Leseei. Justice Story – Had Congress not created lower courts, then

SCOTUS would only hear its org jrd cases. Must be, it can review const of state court decisions too.

1. Uniformity (50 states, 50 diff interps?)2. Supremacy of nat’l body

3. Is Judicial Review UNDEMOCRATIC?a. Bickel – countermajoritarian difficulty

i. “Dead Hand” issueii. Political Q - SCOTUS often ducks

b. Cass Sunstein – minimalismi. And if SCOTUS decides it, decide it very narrowly

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c. Process-based Theoryi. John Hart Ely – Judicial review could promote democracy, like

expanding voting rightsd. Dualism:

i. Legislature ≠ the people. Courts, through the Const, is more a voice of the people.

ii. At key moments, SCOTUS listens to the people.4. STANDARD/REVIEW (deferential v. strict)

a. Strict review to protect democratic process?b. Strict review to protect other fundamental rights?c. Otherwise deferential review?

5. Const Review by OTHER BRANCHES

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JUSTICIABILITY restricts access to fed cti. STANDING – “a litigant must demonstrate that it has

suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” (Scalia in Lujan)

1. Constitutional elementsa. Injury in fact “the actual or imminent invasion of

a concrete and particularized interest of the plaintiffs.”

i. Particularized1. Person must show he suffered some

actual or threatened injury2. Aesthetic harm counts (Sierra Club)3. Common law, constitutional, and

statutory injuries count4. Robert’s Dissent in MA v. EPA – MA

losing land is too speculative.5. Procedural Right:

a. Lujan-Scalia: A procedural injury is not an injury in fact. If people have a problem with the way agency is executing the law, then people should find redress through Congress.

ii. Imminent1. Lujan - members’ lack of firm plans to

return to the sites.2. Mass v. EPA – harm to coastal property

is ongoingb. Nexus "fairly traceable" to challenged conduct

i. Mass v. EPA – “At a minimum, EPA’s refusal to regulate such emissions “contributes” to Massachusetts’ injuries” because US transportation emissions account for a whopping 6% of emissions worldwide.

c. Redressability The ability of the Court to provide some redressability to the injury in fact.

i. Lujan – Invalidating the new regulation might not change govt behavior.

ii. Mass v. EPA “[A] plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not

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show that a favorable decision will relieve his every injury.”

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POLITICAL QUESTION2. Jurisdictional

a. Const committed decision-making on this subject to a coordinate branch of fed gov’t.

3. Merits-Based a. Often the court says Political Q, but really the

court thinks you would lose on the merits.4. Prudential/Deferential

a. It’s not right to rule on this.5. Cases

a. Luther – nonjusticiable. Republican Guarantee clause. All 3 strands present

b. Baker v. Carr – Justiciable. Tennessee hasn’t reapportioned in decades, denies “one man, one vote.”

i. The case did not present an issue to be decided by another branch of the government.

ii. The court noted that judicial standards under the Equal Protection Clause were well developed and familiar.

iii. When a question is enmeshed with any of the other two branches of the government, it presents a political question and the Court will not answer it without further clarification from the other branches.

iv. Frankfurter dissent – racial gerrymandering valid EP claim, political g’mandering is a political Q.

c. Nixon v. US – nonjusticiable. Impeachment. All 3 strands:

i. Jurisdictional1. It’s for Senate to decide

ii. Merits-based1. “trial” could means lots of things, you

got a trial.iii. Prudential

1. This is a check Senate has on judiciary.d. Vieth – nonjusticiable. Partisan gerrymandering.

i. Scalia (Rehnquist, O’Connor, Thomas): never justiciable

ii. Kennedy1. Has not found test, but will keep

looking7

2. Maybe First Amendmentiii. Stevens: violates duty to govern impartiallyiv. Souter (Ginsburg): problem of vote dilutionv. Breyer: problem of entrenching minority

vi. Summary: High hurdle for pure partisan gerrymander claims

e. When is it less controversial to invoke political Q?i. Foreign relations

ii. Const Amend process

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CONGRESSIONAL RESTRICTIONS ON SCOTUS JRD?ii. Article III, §2, Congress has power to create “exceptions and

regulations” to SCOTUS’s appellate jrd.iii. YES :

1. Casesa. McCardle – SOTUS held that Congress has

authority to create exceptions and regulations to the Court’s appellate jrd.

b. Felker - any continuing basis for SCOTUS review, no matter how unlikely, is sufficient to make a restriction on jrd const.

2. Policy:a. check on the unelected judiciary.

iv. NO : Opponents of Congress-restricting-SCOTUS-jrd say McCardle distinguishable – doesn’t completely eliminate jrd, only one basis for jrd.

1. Texta. Exceptions Clause – doesn’t “exception” imply that

Congress can’t take away everything from fed cts?2. Cases

a. Yerger supports this – McCardle is not a precedent.

b. Boumediene – Congress cannot take away ability to petition SCOTUS for writ of habeas corpus

i. Perhaps distinguishable – Suspension Clause says “HabCorp shall not be suspended unless Congress formally suspends it. Replacing HabCorp with CSRT is not an adequate substitute.”

3. Policya. limits on SCOTUS jrd may invite state legislatures

to ignore SCOTUS precedent.b. Limits shouldn’t undermine SCOTUS’s essential

function to ensure supremacy of fed law.c. Can’t limit jrd in a way to achieve a result that

would be unconst (abortion, no blacks)b. Can Congress limit lower fed ct jrd?

i. YES: The fact that Congress has the option to start fed cts means their jrd is flexible.

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Federal Executive Power“We must decide if the President has the inherent power to...”

A. Tier1 (Highest Ebb) “When Prez acts pursuant to an express or implied authorization of Congress”

a. Prez power at its highest ebb, Prez has all the power he already possesses plus whatever Congress has decided to give him.

B. Tier3 (Lowest Ebb) “When Prez actions are incompatible with the express or implied will of Congress”

a. Prez can only go against the Congressional act if it is unconstitutional, especially when it interferes with the President’s ability to act as the “sole organ” for conducting foreign affairs.

i. Steel Seizure – Congress said Prez can’t take steel mills1. The mere fact that case implicated foreign affairs

wasn’t enough to enable Prez to act.2. Medellin - Prez has no delegated or inherent power to

convert a non-self executing treaty into a self-executing treaty by executive memo.

a. Foreign powers don’t apply hereb. History – SCOTUS implied from Congressional

silence that Congress didn’t want it.3. Inherent War Power?

a. Const. tension – Art I grants Congress the power to declare war and to support the army. Art II makes prez commander-in-chief.

b. War Powers Resolution (1973)c. Conflict in Libya – Congress said no, but

successive Congressional acquiescence may bump it up into Tier2.

C. Tier2 “Zone of Twilight” where legislative and executive power are concurrent or at least the distribution of power is uncertain.

a. Jackson: “Make a decision based on the exigencies of the moment, not on abstract legal theories.”

b. Frankfurter: “what does history say?” Long-running executive practice could imply presumption of Congressional acceptance

c. Has Congress said anything general that could relate to this matter?d. Congressional silence?

i. Medellin - Prez has no delegated or inherent power to convert a non-self executing treaty into a self-executing treaty by executive memo.

1. Foreign powers don’t apply here2. History – SCOTUS implied from Congressional silence

that Congress didn’t want it.ii. Dames & Moore – Exec Agreements. Agreement to transfer all

suits against Iran to int’l tribunal.

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1. Although the IEEPA itself did not authorize the presidential suspension of legal claims, previous acts of Congress had "implicitly approved" of executive control of claim settlement.

2. History – Exec agreements have long been accepted by Congress

e. Could the President have instead worked with Congress on this to make a united effort?

f. Curtiss-Wright – Foreign affairs = extra presumption of executive powerg. If none of these apply, then President may occupy the zone of twilight, like

adverse possession

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SEPARATION OF POWERS - LEGISLATIVE BRANCH

May Congress delegate something resembling law-making power to some part of the government outside the legislative branch?

1. Legislative Veto? (Congress can overturn agency action by a resolution of one or two chambers, or even a committee.)

a. Chadha. Burger’s Formalism:i. Congress can only act via bicameralism + presentmentii. Legislative vetoes are not done by bicameralism +

presentmentiii. Legislative veto is therefore unconstitutionaliv. Bottom line: Congress can’t delegate power to itself.

b. Chadha. White’s Dissent - Functionalismi. How else can Congress check power of administrative

agencies?2. Can a legislative official exercise executive power and implement a law?

a. Bowsher v. Synar (comptroller general authorized to impose budget cuts)

i. Interpreting a law enacted by Congress is the “very essence” of executions of the laws.

ii. It is impermissible for exec power to be exercised by a person totally subservient to the legislative branch and immune from Prez power.

iii. Exec must be able to remove anyone wielding exec power.iv. White-Dissent. Functionalism.

3. Can Congress create an independent counsel Prez can’t remove?a. Morrison v. Olson.

i. AG could remove IC, but only for “good cause.”ii. Functional – independence from exec improves the

functioning of exec branch.iii. Distinguished from Bowsher:

1. This case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch.

2. NO AGGRANDIZEMENT.

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COMMERCE CLAUSE

I. Channels (things carried across state lines) of interstate commerce okay to regulate

a. ex. no mail fraud over the telephoneII. Instrumentalities (the means of interstate transport) of interstate

commercea. ex. Cutting down telephone lines

III. Activities that “Substantially Affect” interstate commercea. Economic Activity is okay, even if intrastate-but-cumulative-

interstate-effect, even if motive is noneconomic.i. Wickard – growing wheat, Raich – growing marijuana, Heart

of Atlanta – interstate hotels.b. “Non-economic activity” is not okay, even with interstate effect.

i. Lopez, Morrisonii. What is a non-economic activity?

1. no goods or services produced2. lack of jurisdictional element (cited in Raich)3. lack of express findings of LH (relevant, but not

necessary or sufficient)4. regulation of education and crime = state issues5. Lack of national necessity6. no coordination problem (tenor of Wickard and

Morrison seem to suggest it)7. need to set some limit/slippery slope

c. Congress can get around these distinctions byi. adding a jrd element (knowing that the gun traveled

interstate)ii. conditioning grant of funds to the state South Dakota v. Dole

IV. Implied Limits - 10th Amend.a. “Anti-Commandeering” – NY v. US

i. Congress can’t compel state governments to take actionsii. SCOTUS struck down fed law requiring NY to take title to

LLRWiii. Only to federal laws that impose affirmative duties on state

governmentsiv. Only on state legislatures or executives, not on state judgesv. Conditioning a benefit on state complying with fed law is

okay SD v. Doleb. Clear Statement Rule – Gregory v. Ashcroft

i. when Congress passes laws that goes to the edge of its substantive powers relative to the states (or that simply implicates important state interests) it must say so clearly.

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ii. A rule construing vague language as preserving state prerogatives better captures Cong intent.

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V. Getting around Commerce Clause – Conditional Federal Spendinga. “Congress has the power to place conditions on grants to states if

the conditions are expressly stated and relate to the purpose of the spending program.”

b. SD v. Dolei. Four Factors:

1. Whether it is for the general welfarea. The money must be used for the general good and

not for a local purpose.2. unambiguous drafting3. Spending must be related to and germane to the

federal interesta. nexus between the purpose of the spending

and the conditioned receipt. (highway funds and road safety-drinking age)

4. Condition must not be so coercive as to invalidate it.a. $500,000 is probably not a huge chunk of the

Chicago school budget.VI. Treaty Power beats 10th Amend.

a. Missouri v. Holland – treaty can forbid trapping and killing of birds in Missouri.

b. Reid v. Covert – “We reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights.”

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VII. Dormant Commerce Clausea. Facially discriminatory against out-of-staters, strong

presumption of invalidityi. Unless necessary to achieve an important purpose (see

below).1. Examples:

a. Philadelphia v. NJ – NJ kept Philly from depositing waste in NJ

i. Facially discriminatoryii. no legitimate reason why NJ should favor

in-state waste versus Philly waste. Therefore, law invalidated.

b. Dean’s Milk – Discriminatory even if it discriminates in-staters too.

i. Compelling Interest? 1. Local health interest.

ii. Narrowly Tailored? 1. Reasonable, nondiscriminatory

alternatives were available to ensure milk sold in the city was wholesome and properly pasteurized.

b. Facially neutral law but discriminatory affecti. SCOTUS will consider several factors, including:

1. Is it likely to exclude all out-of-staters from a particular state market? Then law invalid

a. Carbone – All waste must be brought to one waste station.

i. State and local governments may not use their regulatory power to favor local enterprise by prohibiting patronage of out-of-state competitors or their facilities.

ii. Narrowly tailored? 1. Clarkstown had other non-

discriminatory alternatives for dealing with solid waste output.

c. If not discriminatory, but it burdens interstate commercei. SCOTUS balances burdens against benefits.

ii. MOTIVE figures into the balancing, but not dispositive1. Barnwell – law upheld imposing length and width

requirements for trucksa. Compelling interest?

i. highway safety concernsb. Narrowly tailored?

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i. treated in-staters and out-of-staters alike.2. Southern Pacific – the opposite: Inadequate safety

concerns outweighed by interstate commerce concerns.3. Kassel – No 65-ft trucks on our roads in Iowa.

d. 2 Exceptions i. Market Participant Exception: When the state is acting not

as a regulator, but as a participant in a market, it can choose to deal with only in-state contractors.

1. Why?a. state manufactured the good b. involves just a simple refusal to choose to deal

withc. state has taken great risk, used its own industry

and foresight, expended a great deal of effort to enter into a complex process

d. police power for health , welfare, and safety of residents

e. traditional governmental function or state sovereignty

f. case of cleaning up roads or building public projects

g. state created the market 2. Hughes (MD scrap cars buy back program). Law valid3. Reeves (SD cement company charged less to in-staters

than to out-of-staters.) Law valid4. Exception to exception: State cannot also regulate

outside of its market.a. Wunnicke (AK timber case) AK not in the business

of processing timber, just in logging timber. Therefore, market participant exception not applicable.

ii. Government-Run Business?1. United Haulers – SCOTUS allowed municipality to

require locally-produced garbage to be delivered to a locally-owned public facility.

a. Different from Carbone because the state owned the garbage facility, not a private entity.

2. This was not a market participant case because the state PASSED A LAW, so it’s regulation.

a. Valid law becausei. State was favoring a public utility, not a

private company

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ii. treated all private companies, in-state or out-of-state, equally

iii. served significant financial, health and environmental benefits

iv. only “incidental burden” on interstate commerce.

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SUBSTANTIVE DUE PROCESS – UNENUMERATED RIGHTS

1. Is this a fundamental right?a. Textb. Precedentc. Tradition

i. Must be deeply rooted in our Nation’s history1. e.g. Glucksberg – ppl have always disapproved of

suicide and continue to do so.2. Fundamental Right = Strict Scrutiny

a. Infringement must be narrowly tailored to serve a compelling state interest

i. Meyer v. Nebraska – right to raise children1. Compelling Govt Interest?

a. Assimilation and civic development not compellingii. Skinner – right to procreate

iii. Griswold – right to decide whether to procreate/right to privacy

1. Compelling governmental interest?a. Making more babies was not a compelling interest

iv. Eisenstadt – right to decide whether to procreate applies to unmarried ppl too

1. discriminating between married and unmarried violated EP clause

v. Roe – right to privacy applies to abortionsvi. Lawrence

vii. Zablocki – right to marry1. Compelling Government interest?

a. State has numerous other options to deal with deadbeat dads

3. Abortion = Undue Burden (see below)i. Casey

4. Non-Fundamental Right = Rational Basisa. Infringement must be rationally related to a legitimate govt

interesti. Glucksberg

1. Legitimate Gov’t interest? a. Protecting lifeb. preserving ethics of the medical communityc. protecting poor, elderly, and disabled from neglectd. preventing involuntary euthanasia

2. Rationally Related? a. Stops suicides

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1. Post-Lochner rule of deference to elected officials a. Exception : strict scrutiny generally reserved for the three groups

of Carolene footnote 4:i. Government action challenged under the Bill of Rights

ii. laws burdening “discrete and insular minorities”iii. laws restricting the very democratic process itself.

2. Bill of Rights = guidepost for finding unenumerated rights

3. SCOTUS finds fundamental right when law infringes the freedom of competent adults to make important decisions about

a. Family Formation/Reproductive Autonomyi. Griswold

1. Text: used Bill of Rights, not Substantive Due Process2. Precedent: Pierce, Skinner (not Lochner!!)3. Tradition: “sacred precincts of the marital bedroom”

ii. Eisenstadt1. Text: Substantive Due Process2. Precedent: Griswold3. Tradition: “physical intrusion in the home”

b. Child-Rearingi. Meyer v. Nebraska

1. Parents have an unenumerated right to raise their children as they want

c. Bodily Autonomyi. Skinner v. OK – (involuntary sterilizations of imbeciles)

1. Right to procreate.

4. Undue Burden (lower than strict scrutiny)a. What IS NOT an undue burden bf viability?

i. 24-hour waiting period for abortionsii. “Informed Consent”

1. But giving women detailed descriptions of the fetus, or shown photographs, or told that, “human life begins at conception” likely goes too far.

iii. Fetal Viability Testsiv. Record-keeping and Reporting

1. As long as the patient’s identity is kept confidentialv. Requiring parental consent

b. What IS an undue burden bf viability?i. Partial-Birth Abortion

1. The Nebraska law doesn’t make any exceptions for the life and health of the mother

2. imposes and undue burden on woman’s ability to choose dilation or evacuation

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ii. Spousal Notification – undue burdenc. Govt funds

i. the existence of a const right does not create a duty for the govt to subsidize.

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EQUAL PROTECTION

The EP clause of the 14A bars discrimination against other groups of ppl. If the law discriminates (either facially discriminatory, or facially neutral/race specific, or designed to have a disparate impact on a group because of a discriminatory purpose) then the law will be upheld only if it passes heightened scrutiny in the case of a suspect class like race (narrowly tailored to serve a compelling governmental interest) intermediate scrutiny for gender (substantially related to an important governmental interest) or if not a suspect class, upheld so long as the law is rationally related to a legitimate governmental interest (rational basis review).

1. WHICH GROUPS get strict scrutiny?a. Text of 14th Amend?

i. Doesn’t explicitly mention any particular groupb. History

i. History of 14th Amend – clearly targeted at raceii. History of discrimination

c. Stigma/Caste: will the law create a stigma or sub-caste based on the characteristic?

i. Immutable?ii. Identifiable?

d. Representational Reinforcement/Political Processi. Does the group always get shut out of the political process?

ii. Carolene Products footnote 4.1. “Discrete and insular minorities”2. The democratic process isn’t functioning3. Bill of Rights

iii. Ct doesn’t trust the political process to fix this2. HEIGHTENED SCRUTINY?

a. Facial discrimination against RACIAL minorities STRICT SCRUTINY

i. Korematsu. The statute specifically targets a racial group, but survived strict scrutiny

ii. Strauder (no black jurors) – the law specifically targeted Blacks

b. Facially neutral/Race-specific i. Loving – “state had no purpose other than invidious racial

discrimination” violated EP.ii. Brown – “state-mandated segregation inherently stamps

black children as inferior and impairs their educational opportunities”

iii. Johnson v. CA – still must apply strict scrutiny

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1. [[Failed strict scrutiny because other states don’t need to do this?]]

c. Facially neutral/non-race specific: Need to prove discriminatory impact + purpose to discriminate.

i. Washington v. Davis – (DC police tests) disparate impact is not enough

1. Law must cause disparate impact because of discriminatory purpose, not in spite of discriminatory purpose.

ii. Yick Wo (San Fran laundry service)1. The application of the law was so blatantly

discriminatory (no Chinese laundryman got a permit) that disparate impact was enough.

iii. McClesky – (Capital Punishment) statistics show disparate impact

1. Statistics not as blatant as in Yick Wo.2. You must show discriminatory purpose in this case.

iv. De facto segregation in Northern schools is okay.

AFFIRMATIVE ACTION? Strict Scrutiny – Narrowly construed to serve a compelling government interest.

d. Anti-Classification:i. Croson (1989)

1. Compelling Govt Interest ?a. Remedying past racial discrimination is could

be a compelling governmental interest, but couldn’t prove the city ever discriminated in awarding contracts.

2. Narrowly Tailored? a. A rigid 30% quota was not narrowly tailored.b. Law wasn’t limited in time.

ii. Grutter (2003) NON-FATAL STRICT SCRUTINY1. Compelling Govt Interest?

a. Enhancing diversity in higher education.b. Diversity = Critical Mass = Where there are

enough minorities for minorities to feel comfortable and where other students have meaningful opportunities to interact with minorities.

c. Law school must be seen as legitimate in the eyes of all Americans.

2. Narrowly Tailored?

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a. Diversity is not defined as including “black” or “Latino.” Race is just one example of many types of diversity the school looks for.

b. Race is just a “plus” not a quotac. School also considers all ways other than race

that any individual can contribute to school diversity

d. Each student is considered individually, holistically

e. School looked into other race neutral alternatives.

f. Affirmative Action policy must be limited in time.3. Did not require school to exhaust every other

conceivable race-neutral plan, like a “Top 10 percent” plan.

iii. Gratz (2003) – point system, points awarded for racial minorities

1. Narrowly Tailored? a. 20 points for an underrepresented minority

virtually assures that that applicant will be admitted.

iv. Parents Involved (2007)1. CJ Roberts: Brown = Anti-Classification

a. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

2. Compelling Interest? a. In Grutter, race was constl bc it was part of a

broader assessment of diversity, not simply an effort to achieve racial balance.

i. Plan tied to city demographics, not to pedagogic justifications of diversity.

b. In Grutter - Court emphasized the context of diversity in higher education, not present here.

c. Remedying past racial discrimination wasn’t relevant for this case – Seattle schools were never segregated.

3. Narrowly Tailored? a. it employed binary classification ("white" and

"non-white").b. Unlike the cases pertaining to higher education,

the District's plan involved no individualized consideration of students

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c. Kennedy Concurrence - District also failed to show that its objectives could not have been met with non-race-conscious means.

i. strategic site selection of schoolsii. drawing different attendance zones

iii. targeted recruiting

1. Compelling Interest Good a. Remedying past racial discrimination

i. Only when that school district had discriminated in the pastb. Diversity in Higher Education

i. to train future leadersii. to make school legitimate in eyes of all Americans

2. Compelling Interest Bad a. Achieving racial balance for pure demographics (Parents Involved)b. Remedying past discrimination after vestiges have already been

eliminated (Jefferson)3. Narrowly Tailored Good

a. Diversity is not defined as including “black” or “Latino.” Race is just one example of many types of diversity the school looks for.

b. Race is just a “plus” not a quotac. School also considers all ways other than race that any

individual can contribute to school diversityd. Each student is considered individually, holisticallye. School looked into other race neutral alternatives.f. Affirmative Action policy must be limited in time.

4. Narrowly Tailored Bad a. Rigid quota (Croson)b. 20 points basically assured entry (Gratz)c. Binary classification (“white” and “black”) (Parents Involved)d. No sunset provision or periodic review (Croson and Parents

Involved)e. Other race neutral alternatives (Kennedy-Parents Involved)

i. strategic site selection of schoolsii. drawing different attendance zones

iii. targeted recruiting

3. INTERMEDIATE SCRUTINYa. “Substantially related to an Important government interest”b. Justifications for intermediate scrutiny:

i. 14th Amend didn’t address gender.1. But there was certainly discrimination, and there was a

stigma.25

ii. Political Process – today, women vote even more than men1. but they’re still underrepresented on the federal level.

c. Prohibited Classification – Reinforcing Role Stereotypesi. Craig v. Boren

1. Important Governmental Interest a. Traffic safety is an important governmental

interest2. Substantially Related

a. Broad generalities about boys and girls drinking is not enough to substantially connect the law to traffic safety.

ii. United States v. Virginia1. Impt Gov’t Interest – Creating leaders through

“adversative” methoda. “Adversative approach” is the means, not the

ends. The ends can be reached in other ways.b. The case highlights how defining the “important

governmental interest” is so important – don’t let the court define an interest that necessarily hinges on sex.

2. Substantially Related – Men are generally better at adversative approach than women.

a. Typical male/female tendencies are not enough under IS

3. Military academy has obstacle course women can’t pass? Okay, bc it’s not class-specific and it was made “in spite of,” not “because of.”

d. Permissible Classification – Biological Differencesi. Michael M. (stat rape for boys, not girls)

1. Impt Govt Purpose a. To prevent teenage pregnancies

2. Substantially Related a. State can make men more criminally liable

because men suffer few of the consequences of their acts.

b. Women, on the other hand, suffer disproportionally more of the consequences.

3. Dissent : Is this discrimination because of gender stereotypes, or about biological differences?

ii. Nguyen v. INS1. Important Govt Interest

a. Assuring that a biological parent-child relationship exists.

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b. Assuring that a meaningful relationship was created between the biological parent and the child to engender pro-USA feelings.

2. Substantially Related a. The father must provide proof to assure that he is

the father.b. That’s why the father had to make contact with

the child before he turned 18.i. It need not be perfectly tailored, but it’s

substantial enough.3. This is not like Strauder. Here, the distinction between

men and women is real, so the law should respect it.4. Deference via RATIONAL BASIS

a. Railway Express – No advertisements on vehicles unless they related to the business interests of the vehicle’s owner. No suspect class - RBR

i. Legitimate Government interest? 1. Yes, limiting distractions to motorists

ii. Rationally related? 1. Yes, ordinance can be grossly underincluive and still

be constl.b. Williamson v. Lee Optical – opticians can’t fit ppl for eyeglasses.

No suspect class - RBRi. Legitimate Govt interest?

1. Presumably safety, but it sounds pretty stupid to us.ii. Rationally related?

1. That’s what the law is aboutc. Beazer (MTA and methadone users) Not Suspect class - RBR

i. Legitimate government interest? 1. public safety interest in keeping narcotics users out of

MTAii. Rationally Related?

1. Including methadone users is highly overinclusive, but so what?

2. States are allowed to draw the line somewhere cheap and easy.

5. RATIONAL-BASIS ‘WITH TEETH’a. Romer v. Evans (Colorodo gays)

i. Legitimate Government Interest? 1. Respect for citizens’ freedom of association2. conserving resources to fight discrimination against

other groupsa. weak

ii. Rationally related? 27

1. A law making it difficult for one group to seek aid from the govt is too harsh.

2. Animus a. towards politically shut out group b. with history of discrimination, c. immutable character traitd. though not a suspect class

b. Cleburnei. Again, animus against mentally challenged people.

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