Constitutional Law in a Nutshell

Jerome A. Barron, George Washington University Law School

C. Thomas Dienes

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Outline

This edition includes over thirty new cases. Among the decisions featured in this Eleventh Edition of Constitutional Law in a Nutshell are two highly controversial departures from the Court’s precedents. One such case is Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), discussed in Chapter 5, where the Supreme Court reversed Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U. S. 833 (1992). The Court held in Dobbs that no right to abortion is implicit in any provision of the Constitution including the Due Process Clause of the Fourteenth Amendment. Justice Breyer, joined by Justices Sotomayor and Kagan, dissented and protested that Roe and Casey had “protected the liberty and equality of women” for half a century.

Another controversial decision where the Court departed from precedent was Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. (SFFA) v. University of North Carolina, 143 S. Ct. 2141 (2023), discussed in Chapter 6. The SFFA cases sought to terminate affirmative action in higher education. Chief Justice Roberts held for the Court that the admissions systems used by the two institutions violated the Equal Protection Clause of the Fourteenth Amendment. The multiple interests advanced by the universities to justify their race-based programs were not sufficiently measurable to be susceptible to judicial review. Justice Sotomayor, joined by Justices Kagan and Jackson, dissented and objected that the majority decision entrenched “racial inequality in education.”

Two more sections to Chapter 3 on State Power in American Federalism have been added. One section deals with State Power over its Electors in the Electoral College and highlights Chiafolo v. Washington, 140 S. Ct. 2316 (2022), the so-called “faithless voting” case, where a unanimous Supreme Court held that a state may bind its electors to pledge that they will vote for the presidential and vice-presidential candidates which nominated them. The other new section deals with State Legislative Power Under the Elections Clause and discusses Moore v. Harper, 143 S. Ct. 2065 (2023) where the Supreme Court considered and rejected the independent state legislature theory.

This edition includes a new section in Chapter 4—Government Subpoena Power Over Presidential Papers—which features two cases. Trump v. Mazars, 140 S. Ct. 2019 (2020), ruled that Congress can enforce a subpoena against the President for his private papers only in certain specified circumstances. Trump v. Vance, 140 S. Ct. 2412 (2020), ruled that the President is not absolutely immune from state criminal subpoenas which seek his private papers.

In the area of Individual Rights and Liberties, the Supreme Court held, 6-3, in New York State Rifle and Pistol Association v. Bruen, 142 S. Ct. 2111 (2022), per Justice Thomas, that the New York statutory requirement that an applicant for a hand-gun license must first demonstrate “proper cause” violates the Second and Fourteenth Amendments.

As usual, this edition includes a significant number of new cases in Chapter 7 involving the First Amendment. Some of the cases discussed in this edition include the following. In Counterman v. Colorado, 143 S. C. 2106 (2023), a true threats case which did not involve hate speech, the Supreme Court held that use of just an objective standard in such a case was insufficient. In City of Austin v. Reagan National Advertising of Austin, 142 S. Ct. 1464 (2022), Justice Sotomayor, speaking for a majority of the Court, held that a distinction in a city’s municipal code between off-premises and on-premises signs was a content-neutral regulation which should not be evaluated under the strict scrutiny standard of review. This decision constitutes a significant limitation on the holding in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). In 303 Creative LLC v. Elonis, 143 S. Ct. 2298 (2023), the Court held, 6-3, per Justice Gorsuch, that Colorado cannot enforce the Colorado Anti-Discrimination Act to require a website designer to create websites for same-sex couples celebrating their marriage contrary to the designer’s beliefs. Such enforcement would constitute impermissible compelled speech in violation of the First Amendment.

The Court continues to be particularly active in the field of freedom of religion. In Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2020), a unanimous Supreme Court held that refusal by the City of Philadelphia to contract with Catholic Social Services (CSS) for the provision of social services unless CSS agreed to certify same-sex couples as foster parents violated the Free Exercise Clause. In Carson v. Makin, 142 S. Ct. 1987 (2022), the Court held, per Chief Justice Roberts, that a Maine statutory program offering tuition assistance for secondary school education—whether public or private—but which excluded private religious schools from participation violated the Free Exercise Clause. Justice Breyer, joined by Justice Kagan and Justice Sotomayor in part, dissenting, contended that the majority opinion gives “almost no attention “to the Establishment Clause and gives almost exclusive attention to the Free Exercise Clause.” In Kennedy v. Bremerton School District, 142 S. Ct. 2407 (2022), the Court held, 6-3, per Justice Gorsuch, that a school district impermissibly burdened the Free Exercise rights of a high school football coach when it suspended him for kneeling in prayer after football games.

It is rare to have a new case involving a Fifteenth Amendment issue but in Allen v. Milligan, 143 S. Ct. 1487 (2022), included in Chapter 10, the Court, 5-4, per Chief Justice Roberts, rejected the contention by Alabama that the Fifteenth Amendment only permits Congress to regulate against purposeful discrimination by a State. Under the Court’s precedents Section 2 of the Fifteenth Amendment permits Congress to “outlaw practices that are discriminatory.”

Learn more about this series.