Lecture 1: Early days: third branch, h wheel?

Outline
Introduc on – The power of the Supreme Court
Lecture 1:
A) The last branch of the Cons tu on
B) A paradoxical status and an unclear role

What you should know

Introduc on
1. What French ins tu on is comparable to the Supreme Court?
The Conseil Cons tu onnel
2. What law was passed recently in Texas to regulate abor on?
May 2021 = Texas passed a law to restrict access to abrasion : a woman could no longer have an abor on
legally a er 6 weeks of pregnancy
3. Did the Supreme Court agree to block the applica on of this law in December 2021?
No
4. Has the Supreme Court examined the cons tu onality of the Texas law?
No
5. What signi cant di erence is there between how abor on was legalized in France and the UK on
the one hand and in the US on the other?
Abor on legalized by the legislature un the UK and in France / legalized by the Supreme Court in the US
6. What are the main details of the Roe v Wade case?
Jane Roe wished to have an absorp on in Texas but she could not because Texas banned abor on. She led
suit against Texas, claiming that was a viola on of her right to privacy and it was implicit in the 14th
Amendment (imposes a good reason to deprive a person of her privacy). SC agreed ➞ an -abor on laws
are uncons tu onal ➞ legalized abor on in the US

7. What signi cant di erence is there between how same-sex marriage was legalized in France and
the UK on the one hand and in the US on the other?
Same-sex mariage legalized by legislature // legalized by the SC in the US
8. How did the 9 jus ces vote in the Obergefell v Hodges case?
5 = declare gay marriage as a cons tu onal right / 4 = against
9. What can Supreme Court decisions re ect?
The huge societal shi of the last 20 years
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 10. What does Obergefell v Hodges tell us about what the Supreme Court can do to its own precedents
and interpreta on of the Cons tu on?
The court can change its interpreta on of the Cons tu on over me by reversing its own precedents
(homosexual rela ons = criminal acts)
11. What are the two main categories of jus ce on the Supreme Court?
Libéral jus ce / conserva ve jus ce
12. What other examples show how SCOTUS can have a major impact on societal issues?
1954 = banned segrega on in schools
2003 = struck down gun control laws in Washington DONC
13. What power gives SCOTUS this ability to shape the law on these issues? Give a de ni on of this
power
Judicial review = a court’s authority to examine an execu ve or legisla ve act and to invalidate it if it’s
contrary to cons tu onal principles < review of the cons tu onally of an act

Lecture 1
Introduc on:
14. How did the US Cons tu on organize power?
Separa on of powers between 3 branches of government : legisla ve, execu ve, judicial
A) The last branch of the Cons tu on
15. Which ar cle in the Cons tu on deals with the judicial branch? What does it provide for?
Ar cle 3 of the Cons tu on 1787 = crea on of a Supreme Court / posi on of Chief Jus ce / cases in which
SCOTUS has original jurisdic on or appellate jurisdic on
16. How was the judicial branch considered by many of the founding fathers?
As the least important branch
17. What federal courts did Congress create?
US District Court / US Circuit Court of Appeal / US Supreme Court
18. What does it mean to say that SCOTUS is the court of last resort?
At the top of a double pyramid (state + federal courts)
19. How many Supreme Court jus ces did Congress ini ally create? How many jus ces sit on SCOTUS
today?
1789 Judiciary Act = 6 Jus ces
1869 = 9 Jus ces
20. Which jus ce gives his name to the court? What are the other jus ces called?
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 1 Chief Jus ce who gives his name to the Court + 8 associate Jus ces
B) A paradoxical situa on and an unclear role
21. How long do Supreme Court jus ces remain in o ce?

Life term « during good behavior » ➞ above everyday poli cs

22. Why is the status of Supreme Court jus ces within the machinery of government paradoxical?
Nominated by the incumbent President + conformed by Senate < dependent on both the execu ve and
legisla ve branches
23. What ques ons did Ar cle 3(2) raise about SCOTUS?
Does the SCOTUS have the power to check the cons tu onality of federal laws, state laws, trea es and
execu ve orders ? Is the judiciary really co-equal with the other branches in the system of checks and
balances ? What about judicial review ? No men on of power of judicial review in the Cons tu on
24. What is meant by “checks and balances”? How does the Supreme Court play a role in this system?
Checks and balances = hey principal organizing the rela ons between the 3 branches : mutual control for
mutual limita on of powers, the aim is to fragment power to prevent it from being concentrated in one
person or ins tu on
Judicial review = an example of how the judiciary limits the power of the other branches
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 Lecture 2: How the judiciary secured judicial review as
its exclusive preroga ve

Outline

A) Marshall, CJ, champion of the judiciary

B) Marbury v. Madison (1803)
C) Marshall’s legal approach: a broad interpreta on of the Cons tu on (McCulloch v.
Maryland, 1819)

What you should know

A) Marshall, CJ, champion of the judiciary

1. Why is John Marshall, CJ considered to have played a major role in shaping the
judicial branch?
Born in Virginia in 1755, law student, opened private prac ce in 1780, delegate for Virginia,
diploma c mission in France, elected in the House of Representa ves
2. Who nominated him and when?
Appointed Secretary of State by President John Adams in 1800
3. How many years did he serve?
Served 34 years as Chief Jus ce
4. How did CJ Marshall change how decisions were delivered?
Before : Bri sh tradi on of Sera m prac ce = each jus ce issued an individual opinion,
lawyers would read each opinion to determine the decision of the court
A er : SCOTUS issues a single decision
5. What is a concurring opinion?
= same conclusion but di erent legal arguments
6. What is a dissen ng opinion?
= disagreement with the main opinion
7. What is the structure of a SCOTUS decision?
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 - Syllabus = summary of the case and of the decision
- Main opinion = SCOTUS o cial decision + explana on using legal reasoning (unanimous
opinion, plurality opinion)
- Concurring opinion
- Dissen ng opinion
8. What were the consequences of those decision delivery prac ces?
- Jus ces did not render decisions anonymously
- The court was divided into di erent types of jus ces who o en came to the same decision

➞ Hence concern over their legal doctrine, and high stakes of choice of Jus ces

- Came from Marshall’s wish to strengthen SCOTUS and boosts its pres ge
B) Marbury v. Madison (1803)
9. What is the name and date of the rst landmark case that de ned judicial review?
Marbury v. Madison 1803
10. Who were the 2 candidates to the 1796 US presiden al elec ons and their respec ve
party?
T. Je erson = Democra c-Republicans
J. Adams = Federalists
11. What policies did Federalists and Democra c-Republicans support

Democra c-Republicans = limited federal government ➞ want to increase state autonomy

Federalists = strong federal government

12. Who won the 1796 elec on?
Federalists (Adams)
13. Who won the 1800 Presiden al elec on?
Je erson (Democra c-Republican)
14. What poli cal manoeuvre did the loser of the 1800 elec on a empt to retain poli cal
control?
Trough the judicial branch
15. What was the name of the act that made the manoeuvre possible and what did it
contain?

1801 Judiciary Act = reorganized the judiciary ➞ crea on of 3 circuits cours and 10 district
courts < Adams appointed federalist judges un l day before Jes erson’s inaugura on
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 16. Who was Marbury and why did he never receive his appointment le er? How did he
react to this?
Judge Marbury < appointment le er not send, and threw by the Secretary of State Madison
➞ sued the Secretary of State Madison

17. What was the pe oner’s posi on in Marbury v. Madison?

Asked the SCOTUS to order Madison to deliver the le er < thanks to a writ of mandamus =
an order from a court to an inferior government o cial ordering the government o cial to
properly ful ll their o cial du es
18. What was the defendant’s posi on in Marbury v. Madison?

It was a poli cal manoeuvre designed by Adams ➞ replaced by new Congress

19. What legal document did Marbury ask the Supreme Court to issue?
Judiciaire Act 1789
20. What dilemma was Chief Jus ce Marshall faced with?
Agree with Je erson = judiciary would renounce its power to control the execu ve
Disagree with Je erson = could interpret it as a poli cal decision and ignore it
21. What three ques ons did the Marshall ask to se le this case?
- did Marbury have a right to apply for the writ ?
- Did the law allow a writ to be issued as a remedy in Marbury’s case ?
- Could the SCOTUS issue such a writ ?
22. What were the answers to the three ques ons?
- the procedure for appoin ng Marbury had been respected / there just remained the delivery of his
commission / the secretary of state had no rights to not perform that act / he did have the right to
apply for a writ
- If the US respects the rule of law, it is obliged to provide a remedy to Marbury, otherwise it is
essen ally a dictatorship. therefore, the law allowed a remedy to be provided by means of a writ
- Th e1789 Judiciary Act allowed Marbury to apply for a writ of mandamus to be made directly to the
SCOTUS < the Cons tu on limited the original jurisdic on to cases involving ambassadors or
between states
23. What further ques ons did the third ques on raise?
- what happens when an Act of Congress violates the Cons tu on ?
- who decides whether an Act of Congress violates the Cons tu on ?
24. What answers did Marshall give to these ques ons?
- Marshall clari ed the necessity for Acts of Congress to be consistent with the Cons tu on. He
a rmed the importance of the principle of separa on of powers. The Cons tu on organizes the
government and assigns to di erent departments their respec ve powers. It may either stop or
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 establish certain limits not to be transcended by those departments. The Government of the US is
of the la er descrip on. The powers of the Legislature are de ned and limited, and that those
limits may not be mistaken or forgo en, the Cons tu on is wri en. ➞ Acts of Congress which
violates the Cons tu on are void
- The judicial branch should be able to decide whether an Act of Congress is uncons tu onal
25. What is the Supremacy Clause?
Art 6(2) = This Cons tu on, and the Laws of the IS which shall be made … shall be the supreme law of
the land
26. What was the consequence for Marbury of this decision?
Marbury could not bring his applica on for a writ of mandamus before the court. He could not oblige
Madison to appoint him as a judge.
27. Why was the way Marshall dealt with this case very clever?
He agreed with Je erson (won the poli cal ba le) but cri cized Je erson’s abuse of power. He
decided that the court did not have the authority to hear Marbury’s case but he decided that the
court could in future decide if Congress had violated the Cons tu on
28. What was the main consequence of Marbury v Madison?
The SCOTUS became the arbiter of cons tu onality for federal and state acts. It contributed to
strengthening judicial power and federal power.

C) Marshall’s legal approach: the broad interpreta on (McCulloch v. Maryland, 1819)

29. What were the di erences between the Federalists and the Democra c-Republicans
concerning the economy?

Federalists = promote trade and manufacturing / raise more money for the federal government
though loans
Democra c-Republicans = agriculture-based economy / states to manage their own nances

30. What did the Federalists and Democra c-Republicans think about the decision to create a
na onal bank?

Democra c-Republicans = opposed < it would give too much power to the federal government and to
wealthy elites

Federalists = in favor

31. When was the second Bank of America created? How long was it due to last?

1816 ➞ 20 years

32. How could the Bank of America regulate other banks within the US? What cri cisms were
made of this power?
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 Issue bank notes + give loans < seen as federal interference, to prevent private ini a ve, blamed for
the nancial crisis of 1818

33. How did Maryland try to limit the power of the Bank of America?

Law imposing tax ion all bank notes issued by the Bank of America

34. Who was McCulloch and why was he a party to this case?

Bank of America’s branch in Bal more refused to pay the tax ➞ Maryland sued its cashier = James
McCulloch

35. Why is the case called McCulloch v Maryland?

McCulloch = appellant / Maryland = respondent

36. What ques on(s) did the Supreme Court have to answer in this case?

- can Maryland sue McCulloch ?

- Does the Cons tu on authorize Congress to create a Federal Bank

37. What cons tu onal issue did the crea on of the Bank of America raise?

Ar cle 1(8) sets out Congress enumerated powers : regula on of interstate commerce, raise taxes
The Cons tu on says nothing about federal banks however
Is there a cons tu onal basis for Congress to create the Bank of America ?

38. What was Maryland’s a tude towards this issues?

No cons tu onal basis : if the Cons tu on does not explicitly say that Congress has the authority to
create a federal bank, Congress cannot do so = narrow interpreta on of the Cons tu on

39. What was McCulloch’s a tude towards this issue?

Cons tu onal basis : if the Cons tu on does not say that Congress cannot make a federal bank,
Congress is authorized to do so = broad interpreta on

40. What is the di erence between a narrow interpreta on of the Cons tu on and a broad
interpreta on?

Narrow = Cons tu on doesn’t say you can do it ➞ you can’t

Broad = Cons tu on doesn’t say you can do it ➞ you can

41. What did Chief Jus ce Marshall say about the nature of the Cons tu on?

You can write everything in the Cons tu on, it just gives general ideas. Then, you need to see if later
laws or powers generally agree with the spirit of the Cons tu on ➞ living document

42. Was Marshall in favour of a broad or a narrow interpreta on of the Cons tu on?

A broad interpreta on is the correct way to read the Cons tu on

43. What does the “necessary and proper” clause say?

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 The Cons tu on allow Congress to pass laws which are necessary and proper for the accomplishment
of its enumerate powers.

44. What enumerated competence did the Bank of America facilitate?

- raising taxes, loans

- Regulate interstate commerce
- Financing an army and navy

45. What does Marshall say about the nature of the “necessary and proper” clause?

Not restric ve nor does it give Congress unlimited powers ➞ leaves up to Congress to decide which
laws are necessary and proper to carry out its enumerated powers
Admits that the power of Congress is limited but says that Congress is able to decide in the interest of
people when it is necessary and proper for it to act
➞ dis nc on between the ends and the means : if the end is legi mate, the means are legi mate too
as long as it is not clearly banned by the Cons tu on = broad interpreta on

46. What consequence does Marshall’s interpreta on of this clause have on the outcome of the
case?

The crea on of the Bank of America by Congress can be declared cons tu onal because Congress’
enumerated piers include the regula on of interstate commerce and the raising of loans. And a
na onal bank os a necessary and proper means to serve that purpose .

47. What are the main legal principles involved in this case?

- how should the Cons tu on be interpreted : widely or narrowly ?

- What balance should be struck between state power and federal power ?

48. What were the consequences of this case?

Reasserted the federal government’s superiority over state governments

The limits of federal powers was to remain a thorny issue and was one of the causes of the Civil War
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 Lecture 3: An increasingly poli cized branch

Outline
A) Legal doctrines
B) High stakes
C) 9 increasingly coveted seats
1. Replacing Jus ce Scalia: a long-fought ba le
2. Con rming Bre Kavanaugh: a poli cal circus
3. An un mely death: Ruth Bader Ginsburg

What you should know

A) Legal doctrines
1. What does the president do when there is a vacant seat at SCOTUS?
Picks a nominee
2. What factors guide his choice?
- legal experience
- The nominee’s legal doctrine and ideology
3. How does the SCOTUS make a decision?
Based on : Cons tu on + precedents
4. What is stare decisis?
= legal principel by which judges are bound by prior rulings = are obliged to respect the
precedent established by prior rulings
5. What are the names of the 2 trends in the SCOTUS and their legal doctrine =
par cular way of interpre ng the Cons tu on?
- conserva ves = literal and deferen al reading of the Cons tu on
- Liberals = believe in the exibility of the Cons tu on to achieve social progress and more
protec on of minori es
6. What is judicial restraint?
= passive exerce of judicial review : jus ces defer to the legislature, they limite their own
powers (strike down law if they are expressly uncons tu onal), decisions based on
preexis ng law not personal opinions
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 7. What is judicial ac vism?
= ac ve exercise of judicial review : usually on controversial poli cal issues, to help progress
on these issues
8. What is textualism?
= what is important in the meaning of the legal text : interpreta on of words, no a en on to
context or intent
9. What is originalism?
= interpreta on based on the original understanding of the Founding Fathers = strict
construc onism ➞ 2 methods :

- interpreta on of original intent of the authors

- Original meaning = the interpreta on based on the meaning that a reasonable person
would have understood
10. What does the theory of a living cons tu on mean?
= loose construc onism = the meaning of the words of Cons tu on can change with me, to
take contemporary society into account ➞ the Cons tu on provides a framework but not
always literally provide for modern judicial challenges
11. What is the main di erence between the liberal and the conserva ve jus ces in
ma er of cons tu onal reasoning?
Liberals = believe in the exibility of the Cons tu on to achieve social progress and more
protec on of minori es ➞ judicial ac vism

12. What is the poli cal ideology of conserva ves and liberals ?
Conserva ve jus ce : state rights / limited federal power / freedom of religion and free
speech / judicial restraint = jus ce does not serve social change
Liberal jus ces : strong federal government to ensure welfare state / individual rights / rights
to minori es / social and economic progress through judicial ac vism

13. What does the Supreme Court look like now?

6 Republicans
3 Democra c
14. Give the pro le of each current Jus ce (Clarence Thomas, Samuel Alito, Neil Gorsuch,
Amy Coney Barre , Bre Kavanaugh, John Roberts, Elena Kagan, Stephen Breyer,
Sonia Sotomayor)
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 Clarence Thomas = 2nd African American ➞ most conserva ve Jus ce < originalist +
textualist approach / strong proponent of judicial restraint / in favor os state power
Neil Gorsuch = conserva ve, originalist
Samuel Alito = conserva ve jus ce, originalist
Amy Coney Barre = conserva ve, pro life, catholic
Bre Kavanaugh = conserva ve, originalist, textualist

John Roberts = chief Jus ce, moderate conserva ve ➞ new swing vote ?

Elena Kagan = moderate liberal

Stephen Breyer = moderate liberal, pragma c approach of the law
Sonai Sotomayor = 1st jus ce of hispanic descent, 4th woman, liberal

B. High stakes
15. Why are legal doctrines important?
Détermine the outcome of cases in public policy / SCOTUS rulings set precedents which
apply at a federal and state level / poli cians resort to the court system to overturn poli cal
decisions made by opponents
16. What are 2 examples which show that the court is used as tool to further a poli cal
agenda?
Obamacare 2010 = healthcare reform by Democrats < Republicans ini ated lawsuits to
challenge the cons tu onality of the law ➞ start of long legal ba les

Trump’s travel ban 2017 < challenged by poli cal opponents in court
17. What is the consequence of such high stakes on the nomina on process?
Jus ce serve a life term = posi on available in case of death of departure

Vacant seat = opportunity for the president to nominate a remplacement ➞ leaves a legacy

18. What is the nomina on process, and what are the stakes of the nomina on process?
Nominated by President, hearing before Senate Judiciary Commi ee, con rma on by
Senate, appointment by President
19. How does the nomina on of SCOTUS jus ces t in the system of checks and
balances?
Senate = hearing for all federal judicial posi ons to vet him : may delay hearing or refuse to
con rm < the Presidents nominates with the advance and consent of the Senate
20. Pro le of Thurgood Marshall
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 1st African American, liberal, judicial ac vist, protec on of individual rights, supporter of
abor on, opposed to death penalty
21. Pro le of Sandra Day O’Connor
1st woman, federalist, moderate conserva ve , swing vote
C) 9 increasingly coveted seats: recent ba les
22. What did Trump do during his term?
Opportunity to nominate 3 Jus ces = reshape the SCOTUS
1. Replacing Jus ce Scalia: a long-fought ba le
23. Pro le of Antonin Scalia
Nominated by Reagan, conserva ve, textualist, opposed to living Cons tu on, died in 2016
24. What happened a er Scalia’s death?
4 liberal jus ces / 4 conserva ve jus ces
25. What was the name of Obama’s nominee?
Merrick Garland
26. What were the Republicans’ arguments for blocking Garland’s appointment?
Republican majority in Senate refused to hold hearing :

- the people must vote rst ➞ the next legi mately elected President will pick a
replacement
- Nothing against the delay in the Cons tu on
27. What did the events show about the SCOTUS nomina on process?
???
28. Who replaced Scalia? Who nominated him? Who is he?
Gorsuch nominated by Trump : conserva ve jus ce, experienced but young
29. What makes the latest nomina on a smart poli cal move?
Keeping Scalia’s legacy alive : originalist and textualist approach
30. Who re red from the Supreme Court in 2018?
Jus ce Kennedy
2. Con rming Bre Kavanaugh: a poli cal circus
31. Who did Trump nominate instead of Kennedy?
Bre Kavanaugh
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 32. What happened between the moment when Kavanaugh was nominated and the
moment when he was con rmed?
He refused to answer ques ons at the public hearing + Chris ne Ford accused him of having
sexually assaulted her
3. An un mely death: RBG
33. Who was Ruth Bader Ginsburg and what was she remembered for?
second woman to be nominated to SCOTUS

Feminist icon : advocate for women’s rights ➞ convinced SCOTUS that discrimina on on the
basis of sex was banned by the Cons tu on (14th amendment = equal protec on clause)
34. What issues were raised by her death?
Gave Trump the opportunity to replace liberal jus ce with a conserva ve one few weeks
before a presiden al elec on (same situa on as before, who was rejected)
35. What did the Republican president and Republican Senators do and what arguments
did they use to jus fy their decision?

Death 46 days before elec on ➞ con rmed Trump’s nominee

- di erent situa on : Republicans controlled execu ve and the Senate ➞ gave them
mandate to ll the vacancy
36. What were they accused of and why?
Flip opping on the issue
37. Who did Trump nominate? What is her pro le?
Amy Coney Barre = textualist and originalist (in uenced by Scalia), religious conserva ves (a
threat to the right of abor on)
Conclusion
38. In what way has the con rma on process recently changed?

Before : con rma on bipar san ➞ now : Senate vote to con rm the nominees along
par san lines
39. What does this show about SCOTUS?

Hyper-poli cized nomina ons ➞ poli cal gridlock (impasse)

SCOTUS seen as an ally = alliée in pushing poli cal agenda

40. What is President Trump’s “achievement” with respect to the judiciary?
Entrenched = enracine the Conserva ve majority on the court + nominated more than 200
conserva ve judges
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 41. What do Liberals fear as a result of this?
That the court will overturn precedents concerning the right to abor on, or restrict LGBT
rights, vo ng rights..
42. What did Democrats suggest in 2020 and what does this show?
They should pack the court
43. What does Chief Jus ce Roberts want to preserve?
Legi macy of the court (impar ality and independence)
44. What case produced a surprising decision in 2020? Why?
Conserva ve ➞ but sides with Liberals, others Jus ce do : Gorsuch in 2020 voted with the Liberals to
ban discrimina on on the ground on sexual orienta on < decision of the court is not always
predictable
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 Lecture 5: The power to shape policies?

Outline

A. Power and legitimacy of the court in question

B. Roberts Court (2000-now): a split and shifting court

I. Free speech, equal rights

1. A win for conservatives: Citizens United v. FEC (2010)

2. A win for liberals: Obergefell v. Hodges (2015)

Il. À blockbuster term: The 2022 Docket

1. Circumventing judicial review: Whole Woman's Health et al. v Jackson

2. Roe in Question: Dobbs v. Jackson Women's Health Organization

What you should know

A. Power and legitimacy of the court in question

1. What makes the SCOTUS strong

Power to strike down : state laws, federal laws, executive orders

National impact : all similar laws in the 50 states are struck down
Ultimate appellate court : decisions binding on lower courts — must retry cases
according to SCOTUS majority decision
Master of its own agenda : Justices decide which case they will hear

1. What an amicus curiae is

Friend of the court = experts, groups not directly involved in case

1. Why the SCOTUS is seen by some as undemocratic

Unelected + judicial activism = use ofthe court to transform society

Overstepping the power of the judiciary ?

1. What makes the SCOTUS weak

Limited sessions + limited number of cases every session

 1. Number of cases filed before SCOTUS / number of petitions granted every
year

&8k cases / 80 cases

1. How a case makes it to SCOTUS

3 main reasons :
national importance
Lower courts invalidates federal law
Lower courts are split

1. What happened in Southern states after the Brown decision

Southern segregationist states — reignited the debate over states’ rights

Segregation was still enforced

1. How the federal executive got involved in desegregation

Little Rock 1957

Alabama 1963

1. How the federal legislature got involved in desegregation

Civil Rights Act 1964

1. Meaning of the sentence “passive yet powerful” when applied to SCOTUS

277?

B. Roberts Court (2000-now): a split and shifting court

I. Free speech, equal rights

1. À win for conservatives: Citizens United v. FEC (2010)

1. The date and legal basis

2010 - 1st Amendment = freedom of speech and political campaign financing

1. The law that was challenge and its provisions

2002 Bipartisan Campaign Reform Act = prohibited political advertising mentioning a

candidate — restrictions on spending for corporations and organizations

1. The legal issues

Do campaign rules and regulations deprive groups and corporations of their 1st
Amendment rights ?
Are corporations and groups entitled to the freedom of speech guaranteed by the 1st
Amendment ?

1. The majority opinion

Money is speech : potential risk of corruption does not justify limitation of 1st
amendment by legislature — law struck down

1. Consequence ofthe ruling

Super pacs can raise unlimited funds + spend unlimited amount of money in
campaigns

2. À win for liberals: Obergefell v. Hodges (2015)

1. Date and legal issue

2015 - constitutionality of state laws banning same-sex marriage

1. The decision and its consequence

Legalization of same-sex marriage = fundamental right guaranteed by the 14th

amendment — requires all states :
to issue a license to marry between all people of the same sex
To recognize same-sex marriages

1. The legal basis for the decision and the legal reasoning

14th Amendment = due process clause + equal protection clause — broad

interpretation
Precedents : zone of privacy

1. Name ofthe swing vote

Justice Kennedy

1. Name and arguments of dissenters

Roberts, Thomas, Scalia, Alito = should have been left to states or Congress / threat
to democracy / no definition of marriage in Constitution

Il. À blockbuster term: The 2022 Docket

1. Circumventing judicial review: Whole Woman’s Health et al. v. Jackson

1. The law passed by Texas in 2021 and its provisions

Senate Bill 8 Heartbeat Act = banned abortion when a doctor can detect cardiac
activity

1. What made the Texas law special, and the consequence of this specificity

Any citizen can file a civil lawsuit against anyone performs or aids an abortion
procedure after 6 weeks — it deputizes private citizens to enforce the law < make it
very difficult to challenge the law in court

4. Why it is in contradiction with a constitutional precedent

Roe v. Wade = 24 weeks

1. How the case reached SCOTUS

Through en emergency procedure started by abortion providers = shadow docket

1. The decision issued by SCOTUS in September 2021

Provisional decision : deny the request for emergency relief + refused to issue a
temporary stay — did not rule on the constitutionality ofthe law

1. Actions taken by the federal executive

Bidden administration stepped in

Department of Justice sued state of Texas

1. The different steps at SCOTUS from October 2021 to January 2022

Oct 2021 = SCOTUS did not block the law but accepted to hear oral arguments
Nov 2021 = oral arguments

1. The decision in January 2022

Abortion providers can sue state officials to challenge the law but the law is still in
effect

2. Roe in Question: Dobbs v. Jackson Women's Health Organization

1. The law passed by Mississippi in 2021 and its provisions

Gestational Age Act 2018 = bans abortion affect 15 weeks — criminal offense

1. What legal expert think will happen based on the oral arguments

Overturn its precedents + law upheld

 1. The attitude of conservatives during oral arguments

Open to discussion the 24 week limit

1. The attitude of liberals during oral arguments

Warned about perception ofthe court as partisan

1. The questions that the case raised after the oral arguments

to what extent will Roe v. Wade be overturned / chipped away ?

Conclusion

1. What SCOTUS is increasingly accused of

Partisanship / pushing the conservative agenda / judicial activism — making

decisions based on political rather than legal reasons

1. Whether this is a new accusation or not

Depending on the period : conservatives / liberals

4. Why it is hard to distinguish legal and political doctrines

Influence of political views on decisions concerning public policy

Hard to demonstrate since the decisions are based on legal arguments and on a
specific legal doctrine / way of interpreting the Constitution
- line is blurry