Standards of Review

The flurry of Supreme Court decisions at the end of the term tackled some of the most contentious social topics in our national dialogue, with much weight given to how the "conservative" or "liberal" justices voted.  Predicting the outcome of a case is nearly impossible, even when taking into account the assumed ideology of the nine Justices.  Recent polls show the high court approval rating at new lows, with only 28% affirming the Supreme Court as doing a "good" or "excellent" job.  Many news pundits are quick to point to a partisan court divided between the conservatives and liberals as the main reason the court's approval rating has tumbled.  The hyper-partisan 5-4 votes are the cases which make headlines, but the reality is over 50% of all cases in the last term were unanimous 9-0 decisions.  These cases are all incredibly important, but the large consensus does not make for high ratings.  While political ideology inevitably affects the Supreme Court decisions in some capacity, there are set legal theories which the nine Justices follow to help them analyze the case based on the law, constitution, and facts. 

One critical legal theory used by the Supreme Court is known as the Standards of Review, and is applied typically in civil litigation linked to the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment.  As one of the most litigated portions of the U.S. Constitution, it was adopted in 1868 as a response to the Civil War during the efforts of Reconstruction.  Section 1 of the Fourteenth Amendment is what has become referred to as the Equal Protection Clause and Due Process Clause and states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The three tiered test known as the Standards of Review has been adopted by the Supreme Court as a legal method to look at cases which come before them and deal with the Equal Protection Clause.  Congress often has to pass legislation which deals with the classification the placement of restrictions on certain persons, either purposeful advantage or disadvantage.  An example of this would be citizens who are 20 and not legally allowed to drink alcohol in the U.S., while those who are 21 are permitted to drink.  This is a law which classifies and singles out certain individuals because the government claims there is a compelling government interest which validates the age limit for alcohol consumption.  The drinking age law prohibits anyone under the age of 21 from drinking and places a limit on their freedom.  This is where the Standards of Review comes into play and helps the Justices examine laws to determine if they are legitimate and serve a compelling government interest.  The three standards of review are: 1) Rational Basis - minimum scrutiny, 2) Intermediate Scrutiny - middle-tier scrutiny, and 3) Strict Scrutiny - most narrow level of scrutiny.  Here is a chart that helps break down the levels of scrutiny, and explain the steps the Supreme Court would take in deciding if a law is valid or unconstitutional.

SCRUTINY TESTS AND CATEGORIZATIONS (FOR EQUAL PROTECTION & SUBSTANTIVE DUE PROCESS)
STEP 1. The Supreme Court Justices decide - WHAT IS THE CLASSIFICATION APPLIED?   a) The classification is on the face of the law or b) If the law is facially neutral; there is both a discriminatory intent and a discriminatory impact
STEP 2. The Supreme Court Justices decide - WHAT IS THE LEVEL OF SCRUTINY?
Strict Scrutiny   Law must be necessary to achieve a compelling government purpose.   SUSPECT CLASSES: ·         Race ·         National Origin ·         Alienage –generally   FUNDAMENTAL RIGHTS: ·         Travel ·         Parenting ·         Marriage ·         Procreation ·         Abortion = undue burden test ·         Voting ·         Gun Ownership ·         Privacy ·         Religion	Intermediate Scrutiny   Law must be substantially related to an important government purpose. (Gender) Government must show exceedingly persuasive justification for the discrimination   CLASSES: ·         Gender ·         Illegitimacy ·         Undocumented Alien Children   NON-FUNDAMENTAL RIGHTS: ·         Right to Refuse Medical Treatment (possibly if related to religion) ·         Homosexual Activity	Rational Basis   Law must be rationally related to a legitimate government interest   NON-SUSPECT CLASSIFICATIONS: ·         Alienage classifications related to self-government and democratic process   ·         Congressional regulation of aliens ·         Age ·         Handicap ·         Wealth/Poverty ·         All other classifications   ALL OTHER NON-FUNDAMENTAL RIGHTS
STEP 3. The Supreme Court Justices decide - DOES THE LAW MEET THE LEVEL OF SCRUTINY?

I hope this chart helps break down the three levels of scruitny that are part of the Standards of Review test.  The Supreme Court is able to apply this legal theory when relevant cases come before them, and allows the Justices to approach a case using the same legal reasoning.  While you will likely hear the 5-4 decisions on the news, legal theories like the level of scrutiny is what helps the court actually have a majority of their opinions unanimous 9-0 decisions!

How Separate are Church and State?

One of the most recognizable theories from our country's founding documents is the idea of a separation of church and state.  The notion of a government that protects the liberties of all religions, while also maintaining a neutral position for the country as a whole is one of the most unique aspects of our democratic dialogues.  But where does this ideal originate from?  How accurate is this "separation" today?  Why is this important?  These are key questions often associated with a debate on the separation of church and state, but finding clear answers can prove far more complex than simply checking wikipedia.  

When you hear the phrase "separation of church and state" a natural and common assumption is that our founding father's included this proclamation in the U.S. Constitution, however it may surprise some to learn the phrase does not actually appear in the constitution.  In fact, "God" also does not appear in the Constitution and there are only two references to religion, one prohibits the use of a "religious test" and the other that allows officials to "affirm" rather than "swear" in taking the oath of office.  The reality is, our founders went to great lengths to avoid religious references, even though many were devote men of faith themselves. The idea of a separation between the state and the church does go back to the writing of our constitution and hinges on two clauses from the First Amendment, the Establishment Clause and the Free Exercise Clause.  Let's look at what the First Amendment actually says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Establishment Clause is the first portion which states, "Congress shall make no law respecting an establishment of religion".  At a minimum, the Establishment Clause was intended to prevent the federal government from declaring or financially supporting a national religion, which was common in many other countries at the time.  What is less clear is whether or not the Establishment Clause was intended to also prohibit the federal government from supporting Christianity in general.  Those who favor a narrow interpretation point to the fact that the first Congress opened with a prayer, while those favoring a more broad interpretation point to the writings of Thomas Jefferson and James Madison who were the earliest proponents for a "wall of separation" between church and state.  It was Thomas Jefferson who first openly wrote and discussed a "wall of separation between church and state" when he issued a "condemnation of the alliance of church and state" in a letter to the Danbury Baptist Association in 1802. 

The Free Exercise Clause is more straight forward and refers to the idea that Congress shall make no law "Prohibiting the free exercise thereof".  While the two clauses were obviously intended to serve a similar purpose, there are inherent differences about the two meanings which can lead to tension.  For example, some might view providing a military chaplain to troops overseas as a violation of the Establishment Clause, while others might claim not providing a chaplain a violation of the Free Exercise Clause.  This tension between the two clauses exists to this day, however there are several Supreme Court decisions that have helped define the separation of church and state.

Everson v. Board of Education (1947) - The Supreme Court did not begin their interpretation of the Establishment Clause until 1947 in their 5-4 Everson v. Board of Education ruling.  At issue was a New Jersey law which allowed parents to be reimbursed for the costs of busing their children to public and parochial (mostly catholic) schools.  The Supreme Court held 5-4 that the New Jersey law was not a violation of the First Amendment's Establishment Clause because the statute required the state to reimburse the parents.  The reason this case is one of the most important regarding the separation of church and state, is because of the extensive discussion on the Establishment Clause.  While the court was divided in their ruling, the justices unanimously agreed and laid forth the court's belief that the Establishment Clause goes much further than simply prohibiting the federal government from establishing a religion.  In fact, Justice Black and referenced Thomas Jefferson's letter to the Danbury Baptist Association and the "wall of separation" as a fundamental aspect of the Establishment Clause and the constitution.  Although the justices were split in their decision regarding the New Jersey law, they unanimously agreed the constitution outlined an inherent separation of church and state which cannot be abridged.  The length and depth of their discussion of the Establishment Clause was a unique deviation the court had really never taken before.  Also notable was that the justices also explained that if the state had tried to reimburse the parochial schools they would have unanimously found the law unconstitutional.  This case is viewed as an early foundation for the legal theory of a barrier between the church and federal government.

~ Subsequent Supreme Court rulings have established that the wall of separation is flexible with the outcome often hinging on nuanced details of the specific case. 

McCollum v. Board of Education (1948) - The high court proved that the details of each case and situation are critical when determining the constitutionality of a legal challenge based on the Establishment Clause.  In a 8-1 decision the Supreme Court found unconstitutional the practice of inviting religious instructors into public school classrooms to provide optional instruction.  The issue was not the teachings or religious instructors themselves, rather the court held the use of tax-supported property for religious instruction and the close relationship between school authorities and a religious council violated the Establishment Clause.  The justices held that since students were legally required to attend school and the religious classes applied to their required curriculum, the Champagne Illinois system was "beyond question a utilization of the tax-established and tax-supported public school system to aid religious groups and to spread the faith".

Engel v. Vitale (1962) - This is perhaps one of the most famous cases pertaining to the separation of church and state, and is still debated to this day.  At issue was a New York State requirement for public school classrooms to begin each day with the voluntary reading of a nondenominational prayer. In a 6-1 ruling the court held neither the "nondenominational" nor "voluntary" aspect of the prayer saves it from unconstitutionality.  This was one of the first cases where the Establishment Clause was applied to remove religious activities from public schools and other government related forums. 

While I have outlined some early critical Supreme Court cases and interpretations, it is important to note that the debate over a separation of church and state is not limited to the courtroom.  There has always been a vigorous dialogue from politicians, citizens, and throughout the public sphere.  Here is then Senator Kennedy giving a speech during his presidential campaign which addresses concerns with his Catholic faith, but he also provides his opinion on the theory of a separation between church and state.

 

 

JFK's speech was a landmark moment for presidential candidates, and illustrates the connection faith has always had with our elected officials.  However, many viewed Kennedy's speech in a negative light and continue to argue against his articulated opinion on the separation of church and state.

 



 

While I have provided a recap on how Thomas Jefferson's "wall of separation" and the Establishment Clause were historically interpreted by the Supreme Court, I wanted to lastly provide two more recent cases which illustrate the ongoing discussion on how exactly this ideal should be applied to the country as a whole.   

 

McCreary County v. ACLU (2005) - The ACLU sued three Kentucky counties in federal court for displaying the Ten Commandments in courthouses and public schools.  The ACLU argued that the Ten Commandments on display violates the Establishment Clause of the First Amendment, while McCreary County argued the commandments display was part of a presentation on the "Foundations of American Law".  The Supreme Court ruled 5-4 it was unconstitutional for the Kentucky counties to erect the Ten Commandments in courthouses and public schools because any observer would be under the assumption the government was endorsing religion.  The court held that displaying the Ten Commandments in isolation, displaying them with other passages, and displaying them as part of the "Foundations of American Law" presentation were all unconstitutional.  The court even explained that the courthouse exhibit was merely an effort where the county reached "for any way to keep a religious document on the walls of courthouses".  The justices found that the erection of the Ten Commandments by the county in courthouses and public schools was a form of endorsement and therefore void and unconstitutional.

 

Van Orden v. Perry (2005) - In the very same term the Supreme Court struck down three Kentucky counties which erected the Ten Commandments in courthouses and public schools, a Ten Commandment monument donated and placed by a private organization on the grounds of the Texas capitol was allowed to stay.  In a 5-4 ruling, the justices found that the private donation and erection of the stone Ten Commandment monument was not a violation of the Establishment Clause because it was a private gift and was erected privately with numerous other historical monuments.  Unlike the Kentucky case, the court found that no observer would assume there was a government endorsement of religion.  As I mentioned earlier, the "wall of separation" has been interpreted to be flexible and the outcome of a case will most likely hinge on the very specific details.

 

Hopefully these Supreme Court cases illustrate the history of the separation between church and state doctrine, while alos highlighting the debate that continues today.  This topic evokes many passions and emotions, but it is important to look at it with the legal ramifications in mind.  I would love to hear anyone's opinion on this topic in case you want to share!

 







A Lasting Image

Over the past decade the U.S. Supreme Court has seen its public approval rating erode from 62% in 2001, to a new low of 49% entering 2013.  Public opinion polls are not exactly legitimate measurements for the Court and for good reasons.  Given the nature of the judicial branch's responsibility, the Supreme Court must be independent from opinion polls, unlike the executive or legislative branches.  The Court is viewed more and more through an ideological prism where the Justices are categorized based on which party's President appointed them, and although the Court has erred in past rulings and will disappoint both sides of the political spectrum in the future, one cannot overlook the Court rulings which have upheld the guiding principles of the Constitution in the face of unbridled opposition and ignorance.  Two images in particular I recently came across stand out and illustrate how the Supreme Court remains a beacon of hope to this day.

To the left is a picture of Mrs. Nettie Hunt and her daughter, Nickie, sitting on the steps of the Supreme Court the day after the 1954 Brown v. Board of Education ruling held school segregation to be unconstitutional.  Mrs. Hunt was able to explain to her daughter for the first time that the Supreme Court unanimously found racial school segregation in direct violation of the Equal Protection Clause of the 14th Amendment, and that she was no different from the white children across the nation.  From the birth of our country, African-American parents have been forced to explain to their children why society held them to a different standard, but in one sweeping ruling the Court validated the liberty of all American citizens, regardless of race.

 

One of the most remarkable aspects from the above picture is that only 24 hours earlier, Mrs. Hunt was unable to explain to her daughter why the equal protection of the laws laid forth in the Constitution did not apply to African-American children.  The Justices of the Court understood the implications of their ruling and took the unusual step to ensure a full majority opinion in an effort to deprive the opponents of desegregation any room for a valid counterargument.  When the Court announced their ruling for Brown v. Board of Education in May of 1954, an incredibly large portion of the country was still subjected to legal, racial-segregation in schools.

This map of the country illustrates the large number of states that legally required educational segregation in 1954, just prior to the Supreme Court ruling.  When coupled with the earlier picture of Mrs. Hunt and her daughter sitting on the steps of the Supreme Court, the ruling from Brown v. Board of Education stands out as a beacon of hope for all seeking equal justice under the law.

The Court Case Above All Others

The first three Articles of the U.S. Constitution lays forth the three branches of government.  Most understand our federal government is comprised of the legislature (Congress), executive (President), and judicial (Supreme Court).  While Congress has the power to enact laws and the President is the Commander in Chief, the power of the Supreme Court is not specifically enumerated in the Constitution.  Article III explains that:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;

However, the extent of the Supreme Court's authority and constitutional oversight was not established until the case of Marbury v. Madison  in 1803.  The power of the federal courts to void acts of Congress, and subsequently the President, as unconstitutional was established by this one case.  The ability of the judiciary to void a law or action of the legislative or executive branch as unconstitutional is known as Judicial Review.  The ruling by Chief Justice John Marshall (to the left) established the Judicial Branch as an equal to the Executive and Legislative Branch, while ensuring the system of checks and balances of the federal government continues to this day.  The idea of judicial review is uniquely American as no other country or state at the time vested so much power in their own judiciary.  Without judicial review established in Marbury v. Madison, the ability for federal courts to nullify unconstitutional laws or actions would not exist!   

What Happened?
The details surrounding Marbury v. Madison is complicated, yet the outcome is considered the most important ruling in Supreme Court history.  The tension during the election of 1800 was nearly as partisan as today, with the main conflict being the disagreement between the federalists and anti-federalists.  The Federalists (John Adams), who were proponents of a strong federal government, lost the election of 1800 to the anti-federalists (Thomas Jefferson) who wanted most of the power to be in the hands of the individual states.  In the final days of President Adams' term, he made a large number of appointments which were confirmed by the U.S. Senate and signed by the president.  However, when Thomas Jefferson took office he ordered his Secretary of State, James Madison, not to deliver the official commissions, essentially preventing any of the appointments from assuming their jobs.  William Marbury, one of the appointees, petitioned the Supreme Court to compel Secretary of State Madison to deliver the commissions and allow him to begin his job.

The Unanswered Questions 
To resolve the case, Chief Justice John Marshall raised three rhetorical questions he wanted the Court to answer and which would resolve the case before them.  It was unusual for the Chief Justice to pose three questions for the Court to answer themselves, yet these three questions altered the course of American history.

> Was Marbury entitled to his appointment?
> Was the lawsuit he filed a valid avenue to get his appointment issue resolved?
> Was the Supreme Court the place for Marbury to receive the relief he seeks?

Answer 1 - Chief Justice Marshall held that Marbury had been appointed in accordance to all rules and procedures, and therefore was entitled to his commission.

Answer 2 - Since Marbury had been legally appointed, the law must afford him a remedy and therefore the courts were a valid avenue to resolve his issue.  Marshall added that it is the responsibility of the courts to protect the rights of individuals, even against the President of the United States. (This apparent "lecture" to President Jefferson was very controversial at the time!)

*Answer 3* - Marshall's answer to the third question is where the idea of judicial review was developed.  The Chief Justice held that the Supreme Court could NOT grant Marbury the relief he seeks because he should not be before the Supreme Court at all.  A provision of the Judiciary Act of 1789 passed by Congress extended the "original jurisdiction" of the Court, or the cases which the Supreme Court can hear.  Under the 1789 Act, the Supreme Court could take cases like Marbury without lower courts first hearing the case, a provision Chief Justice Marshall said was not constitutional. 

This is confusing right?  What this actually means is that the law passed by Congress which allowed Marbury to petition the Supreme Court directly was not constitutional according to the Chief Justice Marshall.  So although they sympathized with Marbury and even lectured Thomas Jefferson, they ruled that Marbury should not have been allowed to argue his case before the Court because the law passed by Congress allowing him to do so was unconstitutional.  For the first time, the Supreme Court said they have the power to void a law from Congress (or an act of the President) and the theory of judicial review was born!  Without judicial review the Supreme Court could never have desegregated U.S. schools, struck down DOMA, or found President Nixon guilty of obstruction of justice.  The case of Marbury v. Madison is without doubt the most significant Supreme Court ruling in our country's history.

What actually is the Voting Rights Act?

One of the major cases before the Supreme Court that could be decided today pertains to the Voting Rights Act of 1965.  In 2006, the U.S. Senate renewed the Voting Rights Act by a vote of 98-0 and the House of Representatives followed with similar large margins.  Then President Bush signed the bill into law, ensuring the Voting Rights Act would stand for another 25 years.  However, Shelby County Alabama filed suit in Shelby County v. Holder claiming Section 4(b) and 5 of the Voting Rights Act, the portions of the bill that determined the specific geographic areas of the country with stricter voting oversight, was unconstitutional.  Most people have at least heard of the Voting Rights Act, but if asked to explain what the law is or does, many would likely draw a blank.  When I posed this question to  myself, I knew the Act had to do with ensuring equal voting rights for minorities with specific focus on the South, yet I was unable to go into much detail.  So what exactly is the Voting Rights Act of 1965?

The Voting Rights Act of 1965 was a landmark piece of legislation signed into law by President Lyndon Johnson, which outlawed discriminatory voting practices that had led to widespread voter disenfranchisement by African-Americans throughout the United States.  The Act prohibits states and local governments from implementing voting qualifications or any form of prerequisites, with the specific aim at outlawing the literacy tests which were prevalent in the South and sought to disenfranchise otherwise qualified voters.  The legislation was heralded as a significant milestone for the Civil Rights movement, with the signing ceremony attended by Martin Luther King, Jr. and Rosa Parks as seen in the picture above.  The legislation gained momentum with the race-motivated murders of voting activists in Philadelphia and Mississippi, along with the relentless degradation of African American voters and citizens across the country.

 

The Act as a whole provided the most sweeping legislation aimed at protecting the constitutional voting rights for African Americans and all minority groups, and for the first time gave law enforcement and the federal government authority and the tools to ensure these rights.  The teeth of the law is Section 5, which prohibits predetermined districts from changing their election laws and procedures without gaining authorization from the U.S. Justice Department, and Section 4(b), which defines the said districts as those which had voting tests in place in November 1964 and less than 50% turnout in the Presidential election.  If the districts outlined in Section 4(b) want to alter their voting laws or procedures they must first prove to the Attorney General or the Washington, D.C. District Court that the changes they seek "neither has the purpose nor will have the effect” of negatively impacting an individual's right to vote based on their race or minority status. 

This map indicates the districts and states that had voting tests in place in 1964, and are therefore required to get approval before changing their voting laws or procedures.  The Shelby County v. Holder will determine if the districts outline in Section 5 and 4(b) will still require oversight.  This final week of the Supreme Court's term is proving to be the busiest and most important few days!

UPDATE: The Supreme Court just ruled that Section 4(b) of the Voting Rights Act is unconstitutional, with 4 of the Justices dissenting.