Texas has argued that Johnson's actions are a form of "fighting words" and that the Court has let governments regulate such actions.
Did Texas actually argue that Johnson's actions amounted to "fighting words?" It seemed from the opinion that the majority was simply addressing this possibility to rule it out, further proving that preventing a breach of the peace was not a legitimate state interest that was at stake in this class.
The Court agrees and argues that the most important principle behind the First Amendment is that government may always prohibit the expression of an idea whenever society finds the idea itself offensive or disagreeable. As a result, the Texas law is a permissible regulation of speech.
Looking at Johnson's actions, there is no evidence of an expressive element in his actions.
The majority opinion found Johnson's actions to be expressive, citing it as the culmination of a political demonstration and deeming his conduct "sufficiently imbued with elements of communication" to implicate the First Amendment
Dissent by Justince Kennedy
Kennedy issued a concurring opinion, not a dissent
Does an act of Congress prohibiting the burning of the American flag violate the Second Amendment freedom of expression?
Error 1: the case was addressing Texas's state flag desecration law (Congress would pass a law after the finding in this case was published, although the Court would also overturn that one a year later)
Error 2: the legal issue was determining whether the TX law violated the First Amendment, not the Second
One of the protesters, Arthur Smith, painted an American flag on his bare chest, but painted it upside down.
Error 1: the protester was Gregory Lee Johnson
Error 2: Johnson was given an American flag, which he proceeded to unfurl and douse with kerosene, ultimately lighting the flag on fire.
491 U.S. 397
The citation should have the year, so it should read 491 U.S. 397 (1989)
Additionally, the constitutionality of this program turns on whether most schools in the program are religious.
The majority rejected the finding that the 80% of private school participants were religious schools and that 97% of private school vouchers were used at religious schools as evidence of a lack of true choice.
Here, the program is not one of true private choice. It is not neutral in all respects toward religion and is part of an attempt to channel funds to wealthy citizens who send their children to religious schools. Only certain religious groups are free to participate.
Not sure how many errors this counts as, but the majority found that Cleveland's program did represent one of "true private choice, consistent with Mueller, Witters, and Zobrest. Additionally, the majority found the program to be neutral, emphasizing that the program permitted all schools within the districts boundaries and adjacent area public schools to participate. Lastly, the majority based its decision on the program being targeted toward and privileging low-income students, not weatlhy families.**
the program most likely violates the establishment clause.
The majority emphasized that in all three of these challenges, the programs did NOT violate the establishment clause.
10 percent of the private schools available were religious, and only 5 percent of students used their vouchers at private schools
80% of the participating private schools were religiously affiliated, and 97% of the students who used tuition vouchers to attend private schools chose religious schools.
two-thirds of students dropped out before graduation
Two-thirds of students dropped out OR failed before graduation.
Baltimore school district
The case involved the Cleveland school district
O'Connor: dissenting
O'Connor issued a concurring opinion.
a vote of 7–2 the Court
The vote ruled in the favor of Zelman, but it was a 5-4 vote.
14th Amendment to the Constitution?
The legal issue was whether the voucher program ran afoul of the First Amendment's Establishment Clause. The clause is selectively incorporated in the states via the Fourteenth Amendment, but it's still a question violating the First Amendment.
Epstein and Walker, p194
1) the case is on p. 394
2) and more importantly, the correct citation is 536 U.S. 639 (2002)
Zelman v. Simmons-Harris (1982)
This is the wrong year for the case. It was decided in 2002
The Constitution of our country, in its most interesting and vital parts, is to be considered, the conflicting powers of the Government of the Union and of its members, as marked in that Constitution, are to be discussed, and an opinion given which may essentially influence the great operations of the Government....
Does Marshall regularly define the scope of the case like this at the start of his decisions? I don't recall anything similar in Marbury v Madison.
The powers of the General Government, it has been said, are delegated by the States, who alone are truly sovereign, and must be exercised in subordination to the States, who alone possess supreme dominion.
Does Maryland grapple with the idea that the sovereignty and power of the states comes from the people in its argument that the Constitution receives its power from the states, as opposed to the people?
The Government of the Union then ... is, emphatically and truly, a Government of the people....
What's the deal with these ellipses? Is there actual text omitted? Or did Marshall literally include these marks in his writing?
In the president's favor is the fact that his order commands the steel industry to follow policy set by Congress, not the president himself. The lawmaking power in the United States is within Congress's domain, but Congress has clearly chosen to rid itself of that power and give it to the president.
"The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress - it directs that a presidential policy be executed in a manner prescribed by the President..."
Truman's action can be upheld as an exercise of the president's inherent military power as commander-in-chief.
"The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces."
Yes. By a vote of 6-3 the Court ruled against Youngstown Sheet & Tube
No. The Court ruled 6-3 in favor of Youngstown Sheet & Tube, holding that the President did not have the authority to seize private property in order to resolve a labor dispute.
Roberts
Reed and/or Minton
dissenting
concurring
secretary of commerce
Should be capitalized: Secretary of Commerce
Congress
the President
Vietnam
Korean War
sugar
labor dispute was in steel manufacturing industry
Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him?
This concludes Marshall's habit of asking questions that he proceeds to answer. Are many modern day decisions written similarly? Or is this style more suited to an early justice seeking to define the role of the court, including the types of questions a Justice should be asking and answering?
That it thus reduces to nothing what we have deemed the greatest improvement on political institutions -- a written constitution -- would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction.
At this point, Marshall has invoked the idea of and principle behind written constitutions generally about 5 times. I don't take issue with his argument, but is there a reason he acts as if the principle behind a constitution is so well understood but does not invoke specific examples from somewhere else? Did he think this was not helpful for a young United States in defining the scope of its own laws? Or did he not have a useful example of a written constitution from another nation to cite?
To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.
If the Court is only bound to issue a mandamus as an exercise or remedy provided the powers granted by its appellate jurisdiction, which it denied given the case was brought directly to the Court, then how did it take the case under original jurisdiction? Did Marshall have a different take on jurisdiction than Justice Chase a few decades later?
And those are interests. I don't mean to say that those are not valid interests.
Do other justices recognize these interests? It seems like Kagan is the only justice who is going to rule in the majority that recognizes these legitimate interests. Who ultimately wrote the majority decision? Was it fully joined by all 7 justices? Or was there a concurring opinion(s)?
in no uncertain terms
Although Justice Ginsburg does not speak nearly as much Justice Sotomayor or show her skepticism of Mr. Cortman's arguments quite as explicitly, it would seem from this question, especially as compared to every other justice's questions (of course Thomas is typically mute, but it's quite obvious how he would decide this case), that Justice Ginsburg is the second justice who signed on to the dissenting opinion. She does not follow up to challenge Mr. Cortman's answer, but Justice Sotomayor does.
Because of the 11th Amendment.
What bearing does the 11th Amendment have on this? Doesn't that protect states from being sued by other states and foreign countries? So is he trying to say, they want a ruling from the Supreme Court to protect Missouri from being sued by another state?
There are 39 States with constitutional amendments like the one Missouri has.
Invoking the legal weight of 39 state constitutions that have similar amendments and offering a far different interpretation of the essence of Locke makes it clear that Sotomayor was a dissenting justice. In fact, there is not a question in this whole section of her comments. It's as if she is tired of hearing the arguments Cortman is making and that several justices are responding favorably to, and she wants to plant a flag in the ground for the other side to rally to, if there are others who share her opinion (one that I'm entirely sympathetic to as I read this short monologue).
I hear you making a different argument,
Given the overall back and forth so far, it would seem clear that Kagan is ultimately part of the 7-2 majority. Both here and in her question near the outset of the arguments, she is asking questions that seem to be favorable to Mr. Cortman's arguments while also steering the case ultimately toward a narrower holding. Here, in particular, she's essentially saying to both Mr. Cortman and her fellow justices, "I like what I read in your brief, but now I hear you saying something different. Stick to your strongest reasoning." If this case had been decided 5-4 or 6-3, it might be harder to determine whether Kagan was in the majority, but this is not particularly adversarial questioning.
Assuming that there's no serious risk of an establishment violation, that's off the table
Knowing the decision was 7-2 in favor of the Church, it would seem that Kennedy is in that majority, based on the fact that he is trying to establish that there is no Establishment Clause violation. Even if there is no issue with the clause, I don't think a dissenting justice would interject after a minute in this way. Furthermore, his subsequent question seems to be asking Mr. Cortman whether his argument is that states would always need to provide funding to a church in situations like this, unless that funding would violate the Establishment Clause. This seems like quite an expansionist view, as compared to precedent, as Justice Sotomayor later points out, but Justice Kennedy does not challenge Mr. Cortman when he answers that states cannot use religious status to deny public benefits.
play in the joints
This is like the third, or more than that, reference to play in the joints, which seems to be involved in deciding cases that are not decided by invoking the Establishment Clause. What do they mean by play in the joints? Is it actually specific to First Amendment cases involving the Establishment clause, or is it a more general term used in arguing constitutional interpretation in front of the Supreme Court?