Extra Scrutiny: Before the Court

The Justices of the Supreme Court were not born wearing the black robes of the highest court in the United States. They were lawyers first. 

As lawyers, some of them were among the historically tiny fraction of American attorneys who have had the honor to argue before the Supreme Court. For a few of them, they had that honor more than a dozen times.

This episode of Extra Scrutiny focuses on five justices who argued cases as attorneys at the Supreme Court before they joined it. Four of them are still serving today.

Episode 9: R.A.V. v. City of St. Paul

In the summer of 1990, several teenagers set fire to a crudely-made cross on the lawn of an African American family in St. Paul, Minnesota. One of those teenagers, known in court documents as R.A.V. because he was a juvenile, was prosecuted under a local city ordinance that prohibited the use of symbols known to around anger, alarm, or resentment on the basis of race. 

R.A.V. appealed, arguing that the St. Paul ordinance, by banning his expressive conduct, violated the First Amendment. He lost in the Minnesota Supreme Court, which ruled that because the ordinance only prohibited so-called "fighting words," it did not violate the free speech clause.

But the U.S. Supreme Court felt differently. Though there is an exception to the First Amendment for "fighting words," the St. Paul ordinance went too far. The Court was unanimous in their judgment, but their reasoning was sharply divided on the question of whether the government has constitutional power to ban so-called "hate speech."

Question:  Is a city ordinance that bans expressive conduct which "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender," overly broad or impermissibly content-based in violation of the First Amendment free speech clause?

Answer: Yes.

Majority:

  • Antonin Scalia (majority opinion)
  • William Rehnquist
  • Anthony Kennedy
  • David Souter
  • Clarence Thomas 
  • Byron White (concurring in judgment)
  • Sandra Day O'Connor (concurring in judgment)
  • Harry Blackmun (concurring in judgment)
  • John Paul Stevens (concurring in judgment)

Episode 8: Palmer v. Thompson

In 1954, the Supreme Court struck down the Jim Crow doctrine of "separate but equal" in public education. A year later, the Court ruled that all public facilities operated by state and local municipalities must be desegregated as well.

In a subsequent lower court case called Clark v. Thompson, the city of Jackson, Mississippi was ordered to desegregate its parks, its zoo, its golf courses, and its five swimming pools. The city complied with one exception; instead of opening its pools to people of all races, it closed them all down entirely.

A group of local African Americans sued, arguing that the decision to close all the pools - which city leaders admitted was done in response to the integration order - was based on racial animus and in violation the Thirteenth and Fourteenth Amendments. The Supreme Court, in a very close 5-4 vote, disagreed. The social ramifications, if not the legal ones, would be dire.

Questions:  Did the closing of public pools to all persons constitute a denial of equal protection of the laws to Negroes under the Fourteenth Amendment? Did the city council's action in closing the pools, instead of keeping them open on an integrated basis, create a "badge or incident" of slavery in violation of the Thirteenth Amendment?

Answers: No and no.

Majority:

  • Hugo Black (majority opinion)
  • Warren Burger (w/ concurrence)
  • John Marshall Harlan
  • Potter Stewart
  • Harry Blackmun (w/ concurrence)

Dissent:

  • William Douglas (w/ opinion)
  • Byron White (w/ opinion)
  • William Brennan
  • Thurgood Marshall (w/ opinion)

Extra Scrutiny: The "Breyer Pages"

Justice Clarence Thomas is known for his silence on the bench during oral arguments at the U.S. Supreme Court. But Justice Stephen Breyer is known for the opposite: his incredible verbosity. He asks lots of questions, and sometimes those questions are quite...extended. He sometimes speaks uninterrupted for three or more minutes, not only posing complicated hypotheticals to the attorneys before him, but also sometimes just thinking out loud.

Law professor Josh Blackman actually tracks Breyer's longest questions. When Breyer speaks long enough to take up more than a page of a case's official oral argument transcript, Blackman adds it to an archive called the "Breyer Pages."

In this episode of Extra Scrutiny, we explore some of the record-setting Breyer Pages and discover the philosophical side of the current Court's most pragmatic member.

Episode 7: Employment Division v. Smith

In the late 1980s, Alfred Smith and Galen Black were fired from their jobs as drug counselors for using peyote as part of Native American religious services. They applied for unemployment benefits but were denied by the state of Oregon. Smith and Black appealed, arguing that the denial of benefits violated their First Amendment right to the free exercise of religion.

The Supreme Court heard their case in 1989, and in early 1990, ruled against the two men. Writing for the majority, conservative Catholic Justice Antonin Scalia said that carving an exception from uniformly enforced laws (such as drug bans) for religious objectors would make people laws unto themselves and would court societal "anarchy." The First Amendment required no such thing, he wrote.

Not long after the Smith decision, Congress took matters into its own hands, and passed the Religious Freedom Restoration Act in 1993. Since then, the landscape of religious freedom in the United States has been profoundly changed.

Question: Can a state deny unemployment benefits to a worker fired for using illegal drugs for religious purposes?

Answer: Yes.

Majority:

  • Antonin Scalia (majority opinion)
  • William Rehnquist 
  • Byron White
  • John Paul Stevens
  • Anthony Kennedy
  • Sandra Day O'Connor (w/ concurrence only in the judgment)

Dissent:

  • Harry Blackmun (w/ opinion)
  • William Brennan
  • Thurgood Marshall

Episode 6: Lawrence v. Texas

In 1986, the Supreme Court upheld the anti-sodomy law of Georgia in a case called Bowers v. Hardwick, effectively ruling that anti-gay discrimination across the country was constitutional. But in 2003, after John Lawrence and Tyron Garner were arrested in Texas for having gay sex, the Supreme Court took up the issue once again.

Lawrence and Garner argued that the Texas law, which prohibited gay sexual acts but not similar acts performed by different sex couples, violated the Fourteenth Amendment. It was a violation of both the Equal Protection Clause and the Due Process Clause, they said. In opposition, the state of Texas argued that there was no constitutional right to gay sexual conduct, just as the Court had held in Bowers,. 

But whether or not Bowers was correctly decided in the first place was also an issue before the Supreme Court. Would they decide to overrule it and recognize a constitutional right for all Americans to sexual autonomy? Indeed, and the Lawrence decision (along with a prescient dissent by Justice Antonin Scalia) would pave the way for future landmark gay rights cases.

Questions: Do the criminal convictions of John Lawrence and Tyron Garner under the Texas "Homosexual Conduct" law, which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples, violate the Fourteenth Amendment guarantee of equal protection of laws? Do their criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? Should Bowers v. Hardwick, 478 U.S. 186 (1986), be overruled?

Answers: Undecided, yes, and yes.

Majority:

  • Anthony Kennedy (majority opinion)
  • John Paul Stevens 
  • David Souter 
  • Ruth Bader Ginsburg
  • Stephen Breyer
  • Sandra Day O'Connor (w/ concurrence only in the judgment)

Dissent:

  • Antonin Scalia (w/ opinion)
  • William Rehnquist 
  • Clarence Thomas (w/ opinion)

Extra Scrutiny: The "Silence" of Clarence Thomas

Clarence Thomas has always been a controversial figure on the Supreme Court. First it was his contentious confirmation hearings, during which he was accused of persistent sexual harassment, and the narrow vote by the Senate in which he was nearly rejected. Then it was his strict, conservative approach to the constitution as a member of the Court, with Thomas sometimes writing opinions so extreme none of his colleagues, not even fellow conservatives such as Antonin Scalia or William Rehnquist, were willing to join.

But over the last decade, something else about Justice Thomas has drawn criticism: his silence on the bench. As his colleagues routinely pepper attorneys with pointed, even combative questions during oral argument, Justice Thomas instead sits quietly, content not to interrupt or interject.

But not always. In this brief special episode of Heightened Scrutiny, you'll hear some of the rare moments when Justice Thomas has spoken up, sometimes with profound impact.

Sources referenced:

"In His Own Words: Justice Clarence Thomas," New York Times, Dec. 14, 2000.

Adam Liptak, "Justice Clarence Thomas Breaks His Silence in Court," New York Times, Jan. 14, 2013.

Jeffrey Toobin, "Clarence Thomas's Disgraceful Silence," New Yorker, Feb. 21, 2014.

Episode 5: Bowers v. Hardwick

In the early 1980s, as the AIDS epidemic raged and public scorn for gay people had reached a fevered pitch, Michael Hardwick was arrested at his home in Georgia for the crime of sodomy. His consensual relationship with a male partner landed him in the back of a police car. 

Though he was not ultimately charged or convicted, Hardwick sued Georgia, arguing that, as a gay man, the criminal prohibition of gay sexual activity would eventually put him at risk for future problems with the law. Hardwick believed the Fourteenth Amendment of the Constitution, which requires due process, protected a right to the private sexual intimacy of everyone.

In 1986, the Supreme Court narrowly ruled otherwise. The Court framed Hardwick's argument very narrowly, as a demand for a right to a specific kind of sex, rather than as a broad right to individual autonomy in intimate decisions. Hardwick lost, and the burgeoning gay rights movement was nearly halted in its tracks. 

Question: Does the Constitution confer a fundamental right upon homosexuals to engage in consensual sodomy, thereby invalidating the laws of many states which make such conduct illegal?

Answer: No.

Majority:

  • Byron White (majority opinion)
  • Warren Burger (w/ concurrence)
  • Lewis Powell (w/ concurrence)
  • William Rehnquist
  • Sandra Day O'Connor

Dissent:

  • Harry Blackmun (w/ opinion)
  • John Paul Stevens (w/ opinion)
  • William Brennan
  • Thurgood Marshall

Episode 4: Kelo v. City of New London

Susette Kelo loved her "little pink house" near the banks of the Thames River in New London, Connecticut. But New London, struggling with an multi-decade economic downturn, adopted a major redevelopment plan that required the demolition of Kelo's entire neighborhood. One by one, New London bought out most of Kelo's neighbors. But Kelo, and a few others, refused to sell. They didn't want to sell out and move. So they sued the city, arguing that the redevelopment plan (and the condemnation of their houses) violated the Takings Clause of the Fifth Amendment.

The Takings Clause limits the government's eminent domain power. It says the government can only take property for a "public use," and has to pay the private owner "just compensation." Kelo argued that New London's redevelopment plan, designed to bolster the local tax base, did not qualify as a "public use."

But the Supreme Court had a century worth of case law that interpreted "public use" very broadly. And New London really had been in decline for years. With a decision that outraged much of the country along bipartisan lines, the Court ruled against Susette Kelo in 2005. Unfortunately for her, and New London, the redevelopment plan never materialized, and her old lot remains vacant to this day. 

Question: Does a city violate the Fifth Amendment's takings clause if the city takes private property and sells it for private development, with the hopes the development will help the city's bad economy?

Answer: No.

Majority:

  • John Paul Stevens (majority opinion)
  • Anthony Kennedy (w/ concurring opinion)
  • David Souter
  • Ruth Bader Ginsburg
  • Stephen Breyer

Dissenting:

  • Sandra Day O'Connor (w/ opinion)
  • William Rehnquist
  • Antonin Scalia
  • Clarence Thomas (w/ opinion)

Episode 3: Loving v. Virginia

In 1958, shortly after their wedding, Mildred and Richard Loving were arrested in their Virginia home by local police for the crime of being married. Richard was white. Mildred was black and Native American. 

Virginia's Racial Integrity Act of 1924, like laws in fifteen other states at the time, prohibited interracial marriages among white and black people. Richard and Mildred were convicted for violating this law and were banished from Virginia. After several years of exile in Washington, DC, they decided to challenge their convictions with the help of two young attorneys with the ACLU.

They would lose every step of the way. In 1966, the Virginia Supreme Court ruled against them, upholding the Virginia marriage ban as consistent with the Fourteenth Amendment's due process and equal protection clauses. So the Lovings turned to the last court they could, the U.S. Supreme Court.

There, the Supreme Court, led by Chief Justice Earl Warren, confronted the last major vestige of the Jim Crow era: anti-miscegenation laws. Though many states had voluntarily abandoned them, the Southern states clung on, and only one state court had ever ruled that a marriage ban was unconstitutional.  

Question: Did Virginia's anti-miscegenation law violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment?

Answer: Yes.

Majority:

  • Earl Warren (majority opinion)
  • Hugo Black
  • William Douglas
  • Tom Clark
  • John Marshall Harlan II
  • William Brennan
  • Potter Stewart
  • Byron White
  • Abe Fortas

Episode 2: Texas v. Johnson

At the 1984 Republican National Convention, a young communist named Joey Johnson marched with a group of protesters through the streets of Dallas. In front of city hall, Johnson set fire to an American flag, and his conviction for breaking a Texas state law against flag desecration began a five-year journey to the United States Supreme Court that became known as Texas v. Johnson.

Texas, and many patriotic Americans, believed it was well within the state's power to punish such profound disrespect for an important national symbol. Johnson and his attorney, Howard Kunstler, argued that such a provocative style of protest was exactly the kind of expression the First Amendment protects.

The Supreme Court, after one of the most memorable oral arguments in its history, agreed with Johnson and Kunstler. But why? Can burning a flag be considered "speech?" And if so, is the state's interest in protecting the very symbol of our nation really not enough to ban a style of protest that very few Americans ever engage in?

This episode of Heightened Scrutiny tackles those questions and more, with clips from news reports of past and recent flag burnings as well as extended excerpts from the Court's highly charged oral arguments. 

Question: Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?

Answer: Yes.

Majority:

  • William Brennan (majority opinion)
  • Thurgood Marshall
  • Harry Blackmun
  • Antonin Scalia
  • Anthony Kennedy (w/ concurring opinion)

Dissenting:

  • William Rehnquist (w/ opinion)
  • Byron White
  • Sandra Day O'Connor
  • John Paul Stevens (w/ opinion)

Episode 1: Roe v. Wade

Norma McCorvey, aka "Jane Roe."

The Fourteenth Amendment ensures that every person in the United States is entitled to due process of law. But what does "due process" mean? Does it mean that the government has no power to stop a woman from having an abortion? And who even qualifies as a "person" in the first place? Are we entitled to due process even before we're born?

Roe v. Wade was about far more than just abortion. To reach such a landmark decision, the Supreme Court had to explore the deep and complicated nuances of what it means to be a person, to have liberty, and to be entitled to due process of law. The Constitution can be a vague and tricky thing, and defining its limits is no easy task.

Question: Does the Fourteenth Amendment embrace a woman's right to terminate her pregnancy by abortion?

Answer: Yes

Majority:

  • Harry Blackmun (majority opinion)
  • Warren Burger (w/ concurring opinion)
  • William Douglas (w/ concurring opinion)
  • William Brennan
  • Potter Stewart (w/ concurring opinion)
  • Thurgood Marshall
  • Lewis Powell

Dissenting:

  • Byron White (w/ opinion)
  • William Rehnquist (w/ opinion)