Thornburgh v. American College of Obstetricians and Gynecologists

In 1982, the state of Pennsylvania enacted legislation that placed a number of restrictions on abortion. The law required the following: "informed consent" of the woman, the dissemination of information concerning the risks of abortion, reporting procedures, the use of certain medical techniques after viability, and the presence of a second physician for post-viability abortions. The initial suit was brought against Richard Thornburgh, the Governor of Pennsylvania.

In a 5-to-4 decision, the Court held that the Pennsylvania requirements "wholly subordinate[d] constitutional privacy interests and concerns with maternal health" and were attempts to deter women from making their own choices concerning abortion. The Court held that 1) the "informed consent" and printed materials provisions unduly intruded upon the privacy of patients and physicians; 2) the reporting and viability determination provisions were designed to identify and deter women from having abortions through the threat of harassment; and 3) the post-viability care and second physician provisions unconstitutionally interfered with the health of the mother by increasing delays and medical risks.


Marshall Warren Krause
Laurence K. Sullivan

The Santa Clara Police received an anonymous tip that Ciraolo was growing marijuana in his back yard. Unable to observe the yard from the ground due to a high fence which encircled it, the police secured a private plane and flew over Ciraolo's house at an altitude of 1,000 feet. The fly-over confirmed the presence of marijuana. The police then obtained a search warrant, seized 73 plants on the next day, and arrested Ciraolo who then pleaded guilty to the cultivation of marijuana. The California Court of Appeals, however, found that the aerial observation was illegal and reversed Ciraolo's conviction.

The divided Court found that the observation did not violate the Constitution. Chief Justice Burger reasoned that the Fourth Amendment protections regarding the home had never been absolute: for example, police officers are not obligated to shield their eyes when passing homes on public streets or sidewalks. Since the observations of the Santa Clara officers was "nonintrusive" and "took place within public navigable airspace," their actions were consistent with the Fourth Amendment. "Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed," concluded Burger. The dissenters, led by Justice Powell, argued that this decision was a significant departure from the Court's holding in Katz v. United States (1967) which established a two-part test to evaluate privacy claims.


During the capital trial of Ardia McCree, a judge removed prospective jurors who stated that under no circumstances would they be able to impose the death penalty. The Eighth Circuit Court of Appeals found that the judge's actions violated the Sixth and Fourteenth Amendments of the Constitution. A.L. Lockhart, the director of the Arkansas Department of Correction, appealed this decision to the Supreme Court.

The Court found that excluding people who are unwilling under any circumstances to impose the death penalty during sentencing did not violate a defendant's Sixth and Fourteenth Amendment rights. Justice Rehnquist argued that the state has a legitimate interest to impanel jurors who "can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phases of a capital trial." As long as a jury is selected from a fair cross-section of the community, is impartial, and can properly apply the law to a case's circumstances, then a defendant's constitutional right to a fair trial is protected.


Local 28 of the Sheet Metal Workers' International Association v. Equal Employment Opportunity Commission

In 1975, a federal district court found the Local 28 of the Sheet Metal Workers Union guilty of racial discrimination in violation of Title VII of the Civil Rights Act of 1964. The court established a 29 percent minority membership goal and ordered the union to implement procedures to meet the goal. In 1982 and 1983, the union was found guilty of civil contempt for disobeying the court orders. The court then established a 29.23 percent nonwhite membership goal to be met by August 1987.

The Court held that Title VII did not prohibit courts from ordering, in appropriate circumstances, affirmative race-conscious relief as a remedy for past discrimination. Specifically, the Court held that such relief was appropriate where employers or labor unions had engaged in "persistent or egregious discrimination, or where necessary to dissipate the lingering effects of pervasive discrimination." The Court noted that injunctions simply reiterating Title VII's prohibition against discrimination were useless in cases of chronically discriminatory employers or unions.


Pennsylvania v. Delaware Valley Citizens' Council for Clean Air

Jay C. Waldman
Donald B. Ayer
James Douglas Crawford

In April of 1973, pursuant to the Clean Air Act (CAA), the Pennsylvania Department of Environmental Resources (Penn DER) submitted a plan for meeting federal air quality standards. This plan included a provision requiring the implementation of a program for the inspection and maintenance of automobile emissions systems (I/M program) by May 1, 1975. By mid-1976, Pennsylvania had not implemented any I/M program.

In response, the Delaware Valley Citizens’ Council for Clean Air (DVCCCA) brought suit against Pennsylvania and the Environmental Protection Agency. The EPA filed a separate action against Pennsylvania and DVCCCA dropped its charges against the EPA. On August 29, 1978, Pennsylvania, Penn DER and the Pennsylvania Department of Transportation (Penn DOT) agreed to a final consent decree, terminating the DVCCCA and EPA actions.

On January 2, 1982 and after more than five years of intermittent litigation -- during which Pennsylvania consistently resisted or ignored the consent decree -- the district court declared Pennsylvania, the Secretaries of the Penn DOT and Penn DER to be in civil contempt. On May 3, 1983, the Pennsylvania legislature authorized the Secretary of Penn DOT to implement an I/M program following several years of consistently denying Pennsylvania the requisite funding.

The CAA provided that in issuing a final order in any action brought under the CAA, the court may award the costs of litigation to any party whenever the court determines such an award is appropriate. The DVCCCA and the EPA consequently sought attorneys’ fees and costs for all activity performed after the court issued the consent decree on August 29, 1978. The district court awarded attorneys’ fees that included time spent by plaintiffs’ attorneys monitoring Pennsylvania’s performance under the consent decree, an award for “superior quality” while opposing the state’s motion to stay the consent decree, and work performed for hearings held before the EPA.  It also awarded a multiplier for the arguably small likelihood of plaintiffs’ success in three phases of the litigation. The United States Court of Appeals for the Third Circuit affirmed the attorneys’ fees awarded by the district court.

Yes and no. In a decision written by Justice Byron White, the Court held that the district court appropriately awarded the DVCCCA and the EPA attorneys’ fees and costs for non-litigation work. Justice White noted the unusual nature of the plaintiffs’ dispute with Pennsylvania, given that the DVCCCA and the EPA were essentially tasked with protecting the full scope of the consent decree both in and out of court. He looked to the legislative history of the CAA, wherein Congress used the phrases “action” and “proceeding” interchangeably; this suggested to Justice White that Congress did not intend to limit the phrase “action” to litigation.

Justice White agreed, however, with Pennsylvania’s contention that the Third Circuit erred in awarding plaintiffs attorneys’ fees for “superior work”. He outlined the history of the Court’s “lodestar” approach to attorneys’ fees, reasoning that any reasonable “lodestar” approach would already account for attorneys’ superior work. Justice White cautioned that the district court’s award risked double counting attorneys’ work. He declined to consider whether the district court erred in multiplying attorneys’ to compensate for plaintiffs’ low chance of success.

Justice Harry Blackmun concurred in part and dissented in part, joined by Justice Thurgood Marshall. Justice Blackmun agreed that the district court appropriately awarded the DVCCCA and EPA attorneys’ fees for work performed out of court to protect the consent decree. He took issue with the majority’s decision to defer ruling on the district court’s multipliers for plaintiffs’ low chance of success. Justice Blackmun also rejected the Court’s limited interpretation of the “lodestar” approach to attorneys’ fees, arguing that the district court reasonably adjusted fees based on the quality of work performed. Justice William Brennan joined Blackmun’s dissent on this point alone.


Press-Enterprise Co. v. Superior Court of Cal., County of Riverside

A nurse in California was charged with killing 12 patients by administering massive doses of heart medication.  During a preliminary hearing in the Superior Court of California, Riverside County, the nurse moved to exclude the public.  California law requires preliminary hearings to be open to the public unless a closed hearing is necessary to protect the accused’s right to a fair trial.  The judge granted the motion because of the the national publicity surrounding the case.  After the hearing, Press-Enterprise Co. requested a transcript of the proceedings.  The court denied the request because the transcript might prejudice the nurse’s right to a fair and impartial trial.  Press-Enterprise filed a preemptory writ of mandate in the California Court of Appeal, but the court denied the writ.  The California Supreme Court also denied the writ, holding that the First Amendment does not guarantee a right of access to preliminary hearings.  The court also held that once the accused establishes a “reasonable likelihood of substantial prejudice”, the burden shifts to Press-Enterprise to show there is no reasonable probability of prejudice.

Yes, Yes.  Chief Justice Warren E. Burger, writing for a 7-2 majority, reversed the California court.  The Supreme Court held that the First Amendment right of public access applies to preliminary hearings.  Closed preliminary hearings are only permissible when specific findings on the record show that closure is essential.  The California court should have asked whether there was a substantial probability that the accused’s right to a fair trial would be prejudiced, and whether any reasonable alternatives to closure could protect that right.

Justice John Paul Stevens dissented, arguing that the right to fair trial in this case was more significant than Press-Enterprise’s interest in getting the transcript.  The framers did not intend for preliminary hearings to remain open.  Justice William H. Rehnquist joined in the dissent.


Sherman L. Cohn
Jerry P. Slonaker
Mr. Andrew L. Frey

Clifford Carrier was arrested on charges of rape and abduction in 1977. Before his trial, Carrier's attorney filed a motion asking the court to give him access to the victim's statements about her assailants, their vehicle, and the location of the rape. The court rejected the motion. Carrier was subsequently convicted, and his attorney filed an appeal to the Virginia Supreme Court. The appeal did not mention the trial judge's decision about the victim's statements. That appeal was rejected.

A year later, Carrier filed a new appeal in state court claiming that he had been denied his 14th Amendment right to Due Process by the trial judge's refusal to grant him access to the victim's statements. The court dismissed his case, however, citing Virginia Supreme Court Rule 5:21, which states that claims left out of an initial appeal cannot be raised in later appeals. Because Carrier's attorney had not mentioned the victim's statements in the first appeal, Carrier could not raise them in the second.

Carrier then filed a similar appeal in federal district court, again citing the 14th Amendment Due Process claims. The state argued that the appeal was procedural barred because it dealt with issues not raised during the initial appeal. Carrier countered that the omission of the claim had been his attorney's mistake (rather than a tactical decision), and that it should therefore not be held against him. The federal district court rejected the argument, dismissing the case. A divided Fourth Circuit Court of Appeals panel reversed the decision, finding that the omission had been the attorney's mistake and therefore represented a failure of the attorney to provide effective counsel in that particular part of the case (though the representation as a whole was not unconstitutionally poor). The panel stated that because the omission resulted from ineffective counsel, it should not be held against Carrier.

No. In a decision authored by Justice Sandra Day O'Connor, the Supreme Court ruled that merely proving that an omission resulted from an attorney's mistake rather than from a tactical decision does not exempt a defendant from state court procedural rules. Justice O'Connor wrote, "We see little reason why counsel's failure to detect a colorable constitutional claim should be treated differently from a deliberate but equally prejudicial failure by counsel to raise such a claim. The fact that the latter error can be characterized as a misjudgment, while the former is more easily described as an oversight, is much too tenuous a distinction to justify a regime of evidentiary hearings into counsel's state of mind in failing to raise a claim on appeal."


Ronald J. Bretz
James Krogsrud
Brian E. Thiede

Robert Bernard Jackson was charged with second-degree murder and conspiracy to commit second-degree murder. During his arraignment, Jackson requested that the court appoint him counsel. The next day, Jackson was interrogated again before he was able to communicate with his attorney. Jackson confessed during that interrogation.

In December 1978, Rudy Bladel killed three railroad employees in Michigan. Bladel was arrested shortly thereafter, the police questioned him twice but released him. Two months later, he was arrested again and agreed to talk to the police without an attorney present. During his arraignment the following day, Bladel requested counsel, and the court assigned a firm to his case. The next day, the police questioned Bladel again before the firm was able to contact him and before he was aware he had been assigned counsel. During this questioning, Bladel confessed.

In both cases, the trial courts held that the confessions, which were obtained after arraignment and before the defendants were able to meet with counsel, were properly received into evidence. The Michigan Court of Appeals affirmed Jackson’s conviction, and he appealed. The Michigan Supreme Court consolidated Jackson and Bladel’s cases and ruled that both confessions should not have been admitted into evidence.

No. Justice John Paul Stevens delivered the opinion for the 6-3 majority. The Court held that the Fifth Amendment’s protection against self-incrimination and the Sixth Amendment’s guarantee of representation prevent the police from initiating an interrogation after a defendant has requested counsel. Therefore, unless the accused initiates the conversation, police are not allowed to ignore a request for counsel and begin an interrogation. The Court also held that the arraignment marks the beginning of the judicial process and the moment when the accused has a Sixth Amendment right to rely on counsel to act as “a ‘medium’ between him and the State.” From this point on, the suspect becomes the accused, and the assistance of counsel becomes essential. The Court rejected the state’s argument that the defendant’s request for counsel only applied to formal legal proceedings and noted that such a request is a “significant event” requiring additional attention and safeguards. If a defendant asks for counsel at an arraignment, any waiver of that right to counsel during police-initiated interrogations that may follow would be invalidated.

Chief Justice Warren E. Burger authored a concurring opinion that warned of the dangers of using “hard cases” with difficult fact scenarios, such as these, to set “bright-line rules” for all cases.

Justice William H. Rehnquist dissented and argued that the bright-line rule the majority opinion established should only apply to Fifth Amendment protection against self-incrimination and not Sixth Amendment rights. Justice Lewis F. Powell, Jr. and Justice Sandra Day O’Connor joined in the dissent.


Goldman was a commissioned officer in the United States Air Force, an Orthodox Jew, and an ordained rabbi. He was not allowed to wear his yarmulke while on duty and in Air Force uniform. An Air Force regulation mandated that indoors, headgear could not be worn "except by armed security police in the performance of their duties."

The Court held that the Air Force regulation did not violate the Constitution. Justice Rehnquist argued that, generally, First Amendment challenges to military regulations are examined with less scrutiny than similar challenges from civilian society, given the need for the military to "foster instinctive obedience, unity, commitment, and esprit de corps." Since allowing overt religious apparel "would detract from the uniformity sought by dress regulations," the Air Force regulation was necessary and legitimate. In 1987, Congress passed legislation which reversed this decision and allowed members of the armed forces to wear religious apparel in a "neat and conservative" manner.


United States v. American College of Physicians

The American College of Physicians, a non-profit, tax-exempt organization, published a monthly medical journal. Within the journal were paid advertisements for products useful in the field of medicine specifically covered by the journal. Section 511(a)(1) of the Internal Revenue Code imposes a tax on "unrelated business taxable income" of tax-exempt organizations. The IRS asserted that the advertising income from the medical journal fell under this category. The American College of Physicians countered that the advertisements were "substantially related" to its tax-exempt purpose of maintaining high standards in medicine, and that they were therefore tax-exempt. When the IRS refused to give the organization a tax refund, it filed suit in United States Claims Court.

The Claims Court held that the advertisements were not substantially related to the organization's tax-exempt purpose and that the income was therefore taxable. On appeal, the Circuit Court of Appeals for the Federal Circuit reversed, ruling that the advertisements helped to educate the journal's readers and was therefore substantially related.

No. In a unanimous decision authored by Justice Thurgood Marshall, the Supreme Court held that the advertisements in this particular case were not "substantially related" to the medical journal's educational purposes. The Court found that the conduct of the journal, rather than the content of the advertisements, was the relevant factor. Quoting the Claims Court, Justice Marshall wrote, "The evidence is clear that plaintiff did not use the advertising to provide its readers a comprehensive or systematic presentation of any aspect of the goods or services publicized. Those companies willing to pay for advertising space got it; others did not." The Court rejected both the government's contention that all advertising revenue should be taxed and the journal's contention that any informative advertising revenue should be exempt, relying instead on a case-by-case examination.


Andrew J. Pincus
Charles F. Wheatley, Jr.

In 1979, the Southwestern Power Administration, a federal regulatory body acting on behalf of the Secretary of Energy, increased the cost of electricity generated by federally owned dams under its control. The price hike was initially implemented on an interim basis, and three years later, after furher review, the new rates were made permanent. A group of cities that purchased power from the dams filed suit to recover the extra fees it had paid before the interim rates were made final, claiming that Section 5 of the Flood Control Act of 1944 prohibited the imposition of interim fees. The Act stated that new rates would "become effective upon confirmation and approval by the Secretary (of Energy)." The cities asserted that the rates, while in their interim phase, had not yet received "confirmation and approval" from the Secretary and could therefore not be legally implemented.

The Court of Claims sided with the cities, holding that the new rates could only be charged once they received final approval from the Secretary. The Court of Appeals for the Federal Circuit affirmed.

Yes. In an opinion delivered by Justice Thurgood Marshall, the Supreme Court unanimously held that the Secretary of Energy could impose rate hikes on an interim basis without violating the Act. The Court found that the language of the Act and its legislative history did not conclusively show whether Congress intended the Secretary to impose rate hikes on an interim basis. The Secretary's decision, therefore, only needed to be a reasonable attempt to balance the competing interests in the act: preventing unnecessarily high charges to customers while still allowing the dams to be self-sufficient (and therefore not a burden on government resources). Justice Marshall wrote "Interim ratesetting appears well suited to accommodating that dual goal... [and therefore] the procedures established by the Secretary to exercise his powers under the Flood Control Act both are within his delegated authority and constitute a reasonable accommodation of the policies underlying that Act." The Court further found that the rate increases were consistent with the cities' electricity contracts, which were based largely on the language of the Act.


Clifford Earl Tedmon
William George Prhal
William George Prahl

In 1962, an all-white grand jury indicted Booker T. Hillery—a black man—for the murder of a 15-year-old girl. After Hillery was tried and convicted, he appealed his conviction and claimed that black potential jurors were systematically excluded from the grand jury that indicted him, which violated the Equal Protection Clause of the Fourteenth Amendment. Hillery pursued remedy in state courts until the California Supreme Court finally denied him relief in 1978. Shortly after, Hillery filed a petition for a writ of habeas corpus in federal district court. The district court requested and received statistical evidence regarding the probability of having an all-white grand jury in Kings County, California, where Hillery was indicted and subsequently ruled in favor of Hillery. The U.S. Court of Appeals for the Ninth Circuit affirmed.

Yes, and no. Justice Thurgood Marshall delivered the opinion for the 6-3 majority. The Court held that Hillery was allowed to pursue his claim in federal court because the district court was within its power to request additional evidence that did not fundamentally alter the legal claim that the state courts already considered. The Court also held that Hillery's eventual conviction in a fair trial did not render any discrimination at the indictment phase "harmless error." The Court referenced the extensive precedent that rejected similar arguments and noted that discrimination in the indictment process can have an array of negative effects such as a false finding of probable cause, charging a greater or capital offense, or charging numerous counts.

Justice Sandra Day O'Connor filed an opinion concurring in the judgment in which she argued that petitioners who have claimed discrimination during the indictment process and have had a full and fair opportunity to litigate that claim in state court should not be able to file federal habeas corpus as an alternate avenue. However, in this case, Justice O'Connor agreed that Hillery was denied a fair state court review.

Justice Lewis F. Powell, Jr. filed a dissenting opinion in which he argued that the injustice in this case was slight because a grand jury that accurately reflected the population of Kings County when Hillery was indicted would have had only one black member. Additionally, Justice Powell argued that relief in the form of an automatic reversal of Hillery's conviction, which required the state to hold a new trial 23 years after the crime had been committed, imposed too great of a burden on the state to justify setting Hillery free. Chief Justice Warren E. Burger and Justice William H. Rehnquist joined in the dissent.


William Duncan Little, III
Ronald J. Allen

In August of 1981, Larry Gene Heath hired two men to kidnap and murder his pregnant wife. Heath met the men in Georgia, just across the state line from the Heath residence in Alabama, led them back to the house, and left. Rebecca Heath’s body was later found on the side of a road in Georgia. Both Georgia and Alabama authorities pursued investigations in which there was a degree of cooperation.

On September 4, 1981, Georgia authorities arrested Heath, and he waived his Miranda rights and confessed. He was indicted by a grand jury in Troop County, Georgia, and pled guilty in February 10, 1982. On May 5, 1982, Heath was indicted by a grand jury in Russell County, Alabama. Prior to the trial, Heath argued that his conviction and sentencing in Georgia barred any prosecution in Alabama and that Alabama lacked jurisdiction. The trial court rejected both claims, and Heath was convicted. The Alabama Court of Appeals affirmed, as did the Alabama Supreme Court.

No. Justice Sandra Day O’Connor delivered the opinion of the 7-2 majority. The Supreme Court held that the doctrine of dual sovereignty grants each state the right to try a criminal under the laws of that state, regardless of whether he had already been tried under the laws of another state. The states can each be considered a separate sovereign because they do not derive their powers from the same source, namely the federal government. The Court also held that it would be an unconstitutional deprivation of a state’s powers to prevent that state from enforcing its laws because another state had proceeded to trial earlier.

Justice William J. Brennan, Jr. wrote a dissenting opinion where he argued that different interests or purposes in prosecution do not justify an exception to the Double Jeopardy Clause. Justice Thurgood Marshall joined in the dissent. In Justice Marshall’s separate dissent, he argued that the dual sovereignty doctrine was meant to permit federal and state prosecutions for the same offense due to the overlapping spheres of governmental power, not to permit prosecution from multiple states. He also wrote that the Court should have heard arguments about other aspects of the case that violated the petitioner’s rights rather than limiting the issues at hand to the one of dual sovereignty.


Michael Hardwick was observed by a Georgia police officer while engaging in the act of consensual homosexual sodomy with another adult in the bedroom of his home. After being charged with violating a Georgia statute that criminalized sodomy, Hardwick challenged the statute's constitutionality in Federal District Court. Following a ruling that Hardwick failed to state a claim, the court dismissed. On appeal, the Court of Appeals reversed and remanded, holding that Georgia's statute was unconstitutional. Georgia's Attorney General, Michael J. Bowers, appealed to the Supreme Court and was granted certiorari.

No. The divided Court found that there was no constitutional protection for acts of sodomy, and that states could outlaw those practices. Justice Byron White argued that the Court has acted to protect rights not easily identifiable in the Constitution only when those rights are "implicit in the concept of ordered liberty" (Palko v. Connecticut, 1937) or when they are "deeply rooted in the Nation's history and tradition" (Griswold v. Connecticut, 1965). The Court held that the right to commit sodomy did not meet either of these standards. White feared that guaranteeing a right to sodomy would be the product of "judge-made constitutional law" and send the Court down the road of illegitimacy.

The Court subsequently overruled this decision in Lawrence v. Texas, 539 U.S. 558 (2003).


Stephen J. Cribari
Christopher J. Wright

In the morning of July 26, 1984, Lamont McLaughlin and a companion, both wearing stocking masks, entered a bank in Baltimore. McLaughlin displayed a handgun and ordered everyone in the bank to put his hands up and not to move. While McLaughlin remained in the lobby area holding the gun, his companion placed about $3,400 in a brown paper bag. A police officer apprehended the two as they left the bank. The police then found that McLaughlin's gun was not loaded. Ultimately, McLaughlin pleaded guilty to charges of bank robbery and bank larceny and was found guilty of assault during a bank robbery "by the use of a dangerous weapon." The Court of Appeals affirmed.

Yes. In a unanimous opinion delivered by Justice John Paul Stevens, the Court held that an unloaded handgun is a "dangerous weapon" within the meaning of the federal bank robbery statute, 18 USC section 2113(d). The Court articulated three reasons supporting the conclusion that such a gun is a dangerous weapon: First, a gun is an article that is typically and characteristically dangerous. Second, the display of a gun instills fear in the average citizen. Finally, a gun can cause harm when used as a bludgeon.


United States v. Hughes Properties, Inc.

O. Clayton Lilienstern
Albert G. Lauber, Jr.

Hughes Properties owned a casino called Harold’s Club in Reno, Nevada.  This casino operated slot machines that featured “progressive” jackpots.  This jackpot increased as gamblers played and only paid out when the machine hit a certain combination.  State gaming regulations prohibited lowering the jackpot until someone won.  At the end of each fiscal year, Hughes took the year’s total progressive jackpots and subtracted the amount of last year’s jackpots to claim that amount as a business expense deduction.  The Internal Revenue Service disallowed the deduction, reasoning that until a patron won the jackpot, the liability was contingent.

The IRS determined a tax deficiency amount, which Hughes paid before suing for a refund.  The United States Claims Court granted summary judgment to Hughes on the ground that the jackpot amount was contingent until someone won it.  The U.S. Court of Appeals for the Federal Circuit affirmed, holding that the casino’s liability was not contingent because state regulations barred a decrease in the amount.

Yes.  In a 7-2 decision, Justice Harry A. Blackmun wrote the majority opinion affirming the lower court.  The Supreme Court held that the jackpot amount was fixed by the state regulation, so it could be deducted as a normal business expense.  The Court felt that not knowing identity of the winner or the time it would be paid was irrelevant.  Justice John Paul Stevens wrote a dissent, stating that the jackpot amount was contingent, because the casino could avoid paying out altogether by declaring bankruptcy or forfeiting its gaming license. Chief Justice Warren E. Burger joined the dissent.


In July 1978, Willie Lloyd Turner entered a jewelry store and killed the proprietor. Turner was disarmed, arrested, and charged with capital murder. During the jury selection process, Turner's counsel requested that the trial judge ask potential jurors if they would be biased by the fact that Turner was black while the victim was white. The judge declined to ask the question regarding racial prejudice and instead asked the prospective jurors if they thought that they would be able to be impartial and fair. Turner was convicted and sentenced to death.

After exhausting his appellate options at the state level, Turner filed a petition for habeas corpus in federal district court. Because the facts of the case "did not suggest a significant likelihood that racial prejudice might [have] infect[ed the defendant's] trial," the district court held that the trial judge's refusal to question potential jurors about racial prejudice was not unconstitutional. The U.S. Court of Appeals for the Fourth Circuit affirmed.

Yes. Justice Byron R. White delivered the opinion for the 7-2 majority. The Court held that "special circumstance[s]" could create a significant likelihood that a trial judge's failure to question potential jurors about racial prejudice leads to a biased jury. In this case, where an interracial murder was charged as a capital offense, the Court held that the facts amounted to one of those special circumstances. The Court reasoned that jurors in capital cases have broader discretion that makes it easier to act, even if subtly, with racial prejudice. This discretion, coupled with the finality of a death sentence, entitles defendants in interracial capital cases to inform prospective jurors of the victim's race and question them about any potential racial bias.

Justice William J. Brennan, Jr. wrote an opinion concurring in part and dissenting in part in which he argued that the majority should have overturned Turner's death sentence rather than vacating it. In his separate opinion concurring in the judgment in part and dissenting in part, Justice Thurgood Marshall argued that the defendant should retain the right to inform prospective jurors of the race of the victim and inquire about potential racial biases in any case that involved a violent interracial crime. Justice William J. Brennan, Jr. joined in the opinion.

Justice Lewis F. Powell, Jr. wrote a dissenting opinion in which he warned that the majority's new rule would drastically increase the number of death row prisoners filing habeas petitions without providing them any new protections. Justice William H. Rehnquist joined in the opinion.


In 1975, eight Chicano individuals were attending a party that was broken up by the Riverside police using tear gas and physical force without a warrant. Subsequently, the eight individuals filed suit in Federal District Court against the city and various police officers under several federal Civil Rights Acts, alleging violations of their First, Fourth, and Fourteenth Amendment rights. The jury found in the individuals' favor and awarded $33,350 in compensatory and punitive damages. The individuals also sought attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976 in the amount of $245,456.25, based on 1,946.75 hours expended by their two attorneys at $125 per hour and 84.5 hours expended by law clerks at $25 per hour. Finding both the hours and rates reasonable, the District Court awarded the requested amount, and the Court of Appeals affirmed. The appellate court found that the fee award was not excessive merely because it exceeded the amount of damages awarded by the jury.

No. In an opinion delivered by Justice William J. Brennan, Jr., the Court held, 5-4, that there was no requirement under Civil Rights Attorney's Fees Awards Act of 1976 that attorneys' fees be proportionate to the amount of damages a civil rights plaintiff might recover. Justice Brennan, joined by Justices Thurgood Marshall, Harry A. Blackmun, and John Paul Stevens, reasoned that such plaintiffs seek to vindicate important constitutional rights that cannot be valued solely in monetary terms, and a proportionality requirement would seriously undermine Congress's purpose under the Act to insure the availability of counsel in civil rights cases. Concurring, Justice Lewis F. Powell, Jr., reasoned that neither the prior decisions of the Supreme Court nor the legislative history of the Act supported such a requirement.


East River Steamship Corporation v. Transamerica Delaval Inc.

Robert Eugene Smith
Thomas E. Durkin, Jr.
Robert Frederick Smith

Transamerica Delaval Inc. designed and manufactured propulsion systems for four supertankers. The propulsion systems eventually failed due to design and manufacturing flaws. Only the propulsion systems themselves were damaged - no other part of the ship was damaged, and no one was injured.

East River Steamship and the other companies that had purchased the supertankers sued Transamerica under the negligence and products-liability doctrines of tort law, a branch of law that deals with injuries not covered by contractual agreements. They sought compensation for the cost of repairing the ships as well as for the income they lost while the ships were out of service. The district court, however, granted summary judgment to Transamerica. It held that the injuries were not covered by tort law because only the propulsion systems themselves had been injured, and that the case therefore dealt with the product's warranty rather than tort law. The Third Circuit Court of Appeals heard the case en banc and affirmed the district court's decision.

No. A unanimous Supreme Court ruled that when a defective product injures only itself and causes only economic harm, tort law claims do not apply. Justice Harry A. Blackmun, writing for the Court, stated "a manufacturer in a commercial relationship has no duty under either a negligence or strict products-liability theory to prevent a product from injuring itself." The suit, therefore, could only be brought under warranty claims, which could no longer be filed because of a time limit in the contract.


Liberty Lobby, Inc. (Liberty), a nonprofit "citizen's lobby" corporation, filed a libel action against a magazine published by Jack Anderson et al. Liberty claimed that one of Anderson's articles contained false and derogatory statements about its operations. In its defense, Anderson claimed that as a public entity Liberty must show with "convincing clarity" that Anderson acted with actual malice - something they could not do since the article's author stated in an affidavit that he thoroughly researched and cross-checked all his information. Liberty claimed that Anderson did act with actual malice since its author depended on patently unreliable sources. Following a district court's summary judgment ruling favoring Anderson, an appellate court reversed as it held that the lower court erroneously applied actual malice standards of proof at the summary judgement phase. Anderson appealed and the Supreme Court granted certiorari.

No. In a 6-to-3 opinion, the Court held that the purpose of summary judgments is to determine if the evidence is so one-sided that a party should prevail as a matter of law. Summary judgments will not lie if there is a sufficient likelihood that a reasonable jury would return a verdict favorable to the nonmoving party. In libel cases involving public entities, trial courts faced with summary judgment motions must decide whether a reasonable jury could conclude with convincing clarity that actual malice existed. The mere assertion by a plaintiff that a defendant's summary judgment motion is deficient because a reasonable jury might disbelieve the defendant's denial of actual malice is insufficient to warrant a grant of summary judgment without any offer of evidentiary proof to that effect. The Court reversed the appellate court's decision and remanded for reconsideration of its summary judgment ruling.


Under the collective bargaining agreement between the Jackson Board of Education (Board) and a teachers' union, teachers with the most seniority would not be laid off. It was also agreed not to lay off a percentage of minority personnel that exceeded the percentage of minority personnel employed at the time of a layoff. When the schools laid off some nonminority teachers, while retaining other minority teachers with less seniority, Wendy Wygant, a displaced nonminority teacher, challenged the layoff in district court. Holding that the Board could grant racial preferences without grounding them on prior discrimination findings and that the preferences did not violate the Equal Protection Clause, since they remedied discrimination by providing "role models" for minority students, the District Court upheld the layoff provision's constitutionality. When the appeals court affirmed, the Supreme Court granted Wygant certiorari.

Yes. In a 5-to-4 decision, the Court argued that Wygant's layoff stemmed from race and, therefore, violated the Equal Protection Clause. The Court noted that the government, when embarking on affirmative action, had two duties: first, to justify racial classification with a compelling state interest and second, to demonstrate that its chosen means were narrowly tailored to its purpose. Regarding the first, the Court rejected the lower court's argument that racial preferences were justified because the percentage of minority students exceeded the percentage of minority teachers. At best, this argument implied a separate but equal system, which the Court rejected in Brown v. Board of Education. Instead, racial preferences had to be based on prior discrimination. Second, the Court rejected the school's discrimination remedy: layoff preferences incorrectly addressed injurious prior discriminatory hiring practices since "denial of a future employment opportunity [was] not as intrusive as loss of an existing job."


E. Paul Eggert
Cabanne Howard
Jerrold J. Ganzfried

In order to protect its fisheries from parasites and non-native species, the state of Maine prohibited the importation of live baitfish. Robert J. Taylor, the owner of a bait business, violated the law and was prosecuted by Maine authorities.

No. In an 8-to-1 decision, the Court held that the limitation imposed by the Commerce Clause on state regulatory power was not absolute and that the States "retain[ed] authority under their general police powers to regulate matters of 'legitimate local concern.'" The Court found that Maine's ban on the importation oflive baitfish served a legitimate local purpose that could not adequately be served by available nondiscriminatory alternatives. The Court argued that the ban was not a simple case of "arbitrary discrimination against interstate commerce."


Square D Company v. Niagara Frontier Tariff Bureau, Inc.

Douglas V. Rigler
Donald L. Flexner
Lawrence G. Wallace

The petitioners represented a group of corporations that used a group of motor carriers regulated by the Niagara Frontier Tariff Bureau, Inc. (NFTB), an organization that engaged in collective ratemaking activities for shipping goods over the border between the United States and Canada. The petitioners sued the carriers and alleged that, between 1966 and 1981, the group had engaged in price fixing that violated the terms of the NFTB agreement and could not be approved by the Interstate Commerce Commission (ICC). The petitioners argued that during those years they paid higher rates than they would have in a freely competitive market and sought treble damages on that difference, along with declaratory and injunctive relief. The district court dismissed the case based on precedent set by a previous Supreme Court decision. The U.S. Court of Appeals for the Second Circuit affirmed the district court’s decision regarding the treble damages and remanded for further hearings to determine whether the petitioners were entitled to injunctive relief.

No. Justice John Paul Stevens delivered the opinion of the 8-1 majority. The Supreme Court held that the precedent established by the previous decision is relevant to this case because in both cases the rates were approved by the ICC, which meant that the rates were lawful under the Interstate Commerce Act, and the carriers were protected from suits for damages. The Court also held that the recently enacted Reed-Bullwinkle Act did not alter any anti-trust laws applicable to carriers. The legislative history surrounding the Act makes it clear that Congress did not intend to drastically alter existing anti-trust legislation and its judicial interpretation.

Justice Thurgood Marshall wrote a dissenting opinion in which he argued that the Court of Appeals opinion provided sufficient analysis as to why the previous precedent should be overruled and that he was persuaded by the analysis.


Federal Deposit Insurance Corporation v. Philadelphia Gear Corporation

Charles A. Rothfeld
Gerald F. Slattery, Jr.

Orion Manufacturing Corporation (Orion) was a customer of Philadelphia Gear Corporation (PG). To provide a guarantee of payment to PG, Orion obtained a letter of credit for the benefit of PG from Penn Square Bank, N.A. (Bank). If Orion failed to pay an invoice to PG for at least 15 days, PG could draw upon that line of credit, up to $145,200. This type of credit line, meant to guarantee payment to a seller, is referred to as a standby letter of credit. To back up that line of credit, Orion executed an unsecured promissory note in favor of the Bank. This note is referred to as a backup letter of credit. Nothing was due on the backup letter of credit unless PG presented drafts on the standby letter of credit. Thus the backup letter was a contingent promissory note. The Bank did not credit any account of Orion's in exchange for the note, and did not treat its own assets as increased by its acceptance of the note. In 1982, the Bank was declared insolvent and the Federal Deposit Insurance Corporation (FDIC) was appointed its receiver. PG presented drafts on the standby letter of credit for goods delivered before the Bank's insolvency, but the FDIC returned them unpaid. PG sued the FDIC, claiming that the standby letter of credit was an insured deposit under the definition of "deposit" set forth at 12 U.S.C. Section 1813(l)(1), and that PG was therefore entitled to $100,000 in deposit insurance.

No. In light of the longstanding interpretation of the FDIC, such a letter does not create a deposit. This interpretation is consistent with Congress' intent in creating the FDIC, namely ensuring that a deposit of "hard earnings" entrusted to a bank would not lead to a tangible loss in the event of a bank failure. In this case, the standby letter of credit backed by a contingent promissory note did not entrust any noncontingent assets to the Bank. Therefore, such a letter of credit does not give rise to an insured deposit.


Witters v. Washington Department of Services for the Blind

Larry Witters attended the Inland Empire School of the Bible, seeking to become a pastor, missionary, or youth director. Inland Empire was a non-denominational Christian school supported by donations and tuition payments. Witters suffered from a progressive eye condition, which rendered him legally blind under Washington law.

Witters applied to Washington’s Commission for the Blind to participate in its vocational rehabilitation program, funded by approximately eighty percent federal funds and twenty percent state funds. The commission, however, had previously adopted a policy statement forbidding the use of public funds to assist an individual in pursuing a career or degree in theology or related areas, based on Washington’s constitution. The commission denied Witters’ application because his vocational objective was to become a pastor, viewing this as falling within the areas related to theology. A state hearings examiner upheld the commission’s ruling, also citing Washington’s constitution. A Washington district court upheld the decision for the reasons given by the hearings examiner.

On appeal, the Supreme Court of Washington upheld the decision, but declined to base its ruling on the Washington Constitution. Instead, it reserved judgment on the state constitutional issue and determined that the First Amendment’s Establishment Clause required the commission to deny Witters’ application. Using the three-part test established by the Court in Lemon v. Kurtzman, it held that approving his application would have the primary effect of advancing religion.

No. In a unanimous decision written by Justice Thurgood Marshall, the Court held that extending aid to Witters through Washington’s vocational rehabilitation program would be consistent with the First Amendment’s Establishment Clause. Justice Marshall also looked to the Lemon test, agreeing with the Supreme Court of Washington that the statute had a facially secular purpose, to promote the well-being of the visually handicapped.

Justice Marshall held, however, that extending aid to Witters would not have the primary effect of advancing religion. He noted that the program did not provide greater or broader benefits for recipients who apply their aid to religious education, and that nothing in the record indicated that a significant portion of aid extended through the program would flow to religious education. He also argued that although the aid would ultimately flow to Inland Empire, this was not because of the state's actions but rather Witters’.

Justice Louis Powell, joined by Chief Justice Warren Burger and Justice William Rehnquist, concurred. He argued that the statute could not have the primary effect of advancing religion because the funds were available to applicants regardless of whether their school was secular or religious; hence, any aid to religion would result from the private choices of individual beneficiaries.

Justice Sandra Day O’Connor also concurred. She emphasized that any potential aid to religion would be the result of Witters’ choice, and that no reasonable observer would likely draw an inference that Washington was endorsing a religious belief or practice.


Constance L. Messore
Robert E. Mann
Mr. Andrew L. Frey
Robert B. Mann

Brian Burbine was arrested for burglary in Cranston, Rhode Island. Police then received information connecting Burbine to a murder that happened in town a few months earlier. Burbine was read his Miranda rights and held for questioning. At first, Burbine refused to waive his rights, but later he signed three forms acknowledging that he understood his right to an attorney and waived that right. After questioning, he also signed three written statements admitting to the murder. That same night Burbine’s sister called the local Public Defender’s Office to get a lawyer for her brother. The sister did not know about the potential murder charge. When the Public Defender called the Cranston Police Station, police told her that Burbine was unavailable and would not be questioned until the next day. Police never told Burbine that an attorney attempted to contact him.

At trial, the judged denied a motion to suppress the statements made at the police station, holding that Burbine knowingly, intelligently, and voluntarily waived his right to counsel and privilege against self-incrimination. The U.S. District Court for the District of Rhode Island denied Burbine’s petition for a writ of habeas corpus. The U.S. Court of Appeals for the First Circuit reversed, holding that the police officer’s deliberate or reckless failure to inform Burbine that his counsel attempted to contact him invalidated his waiver of rights.

No. Justice Sandra Day O’Connor, writing for a 6-3 majority, reversed and remanded. The Supreme Court held that failure to inform Burbine about the attorney’s phone call did not affect the validity of his waiver of rights. The waiver was not coerced, and Burbine was aware of his rights at all times. The right to counsel does not attach until an accused is formally charged, so that right was not violated in this case. Also, the misleading conduct by the police was not so offensive that it deprived Burbine of his due process rights.

Justice John Paul Stevens dissented, arguing that Burbine’s waiver of rights was invalidated by the police’s deceptive acts. Those acts also constituted an interference with the administration of justice that the due process clause was meant to prohibit. Justice William J. Brennan, Jr. and Justice Thurgood Marshall joined in the dissent.


Stephen J. Roy and Karen Miller, along with their daughter Little Bird of Snow, were residents of Pennsylvania receiving benefits under the Aid to Families with Dependent Children (AFDC) and Food Stamps programs. Roy and Miller refused to comply with the federal requirement that participants in these programs provide the social security numbers of all family members receiving benefits. They argued that obtaining a social security number for Little Bird would violate their Native American religious beliefs. The Pennsylvania Department of Public Welfare terminated AFDC benefits paid for Little Bird and the parents sued, arguing that the free association clause of the First Amendment provided an exemption to the social security number requirement. At trial, Roy disclosed the Little Bird already had a social security number, and the court suggested the case was moot. Roy then argued that widespread use of the social security number would “rob the spirit” of Little Bird, violating their religious beliefs. The court restrained the government from denying benefits for Little Bird until she was 16 years old, but denied Roy’s request for damages.

No. Chief Justice Warren E. Burger, writing for seven members of the court, vacated the lower judgment and remanded. The Supreme Court held that the social security requirement did not violate the First Amendment and the injunction against the government was vacated. The requirement was entirely neutral in religious terms, and was a reasonable means of preventing welfare fraud. The First Amendment does not require the government to aid individuals in carrying out their religious beliefs. Justice Harry A. Blackmun concurred in part, expressing that the entire lower judgment should be vacated because the record was unclear as to whether a justiciable controversy remained. Justice John Paul Stevens concurred in part and concurred in the result, expressing that the Roy’s claim for benefits was either moot or not ripe for decision.

Justice Sandra Day O’Connor concurred in part and dissented in part, arguing that the government failed to show that allowing an exception to the social security requirement for those with legitimate religious objections would harm the state’s interest in preventing welfare fraud. Justice William J. Brennan, Jr. and Justice Thurgood Marshall joined in Justice O’Connor’s opinion. Justice Byron R. White dissented, arguing that prior precedent clearly showed that requiring a social security number to receive benefits in spite of legitimate religious objections clearly violated the First Amendment.


Posadas de Puerto Rico Associates, dba Condado Holiday Inn v. Tourism Company of Puerto Rico

A Puerto Rican law restricted advertising by the island's casino gambling establishments. Even though gambling was a legal activity in Puerto Rico, the law only allowed advertising that was targeted at tourists.

No. The Court held that the Act passed the constitutional test for restrictions on commercial speech. Justice Rehnquist argued that Puerto Rico's desire to protect the "health, safety, and welfare of its citizens" by attempting to isolate them from casino advertising served a "substantial government interest." The law was clearly drawn and directly related to the government's goal of minimizing the ill effects, such as prostitution and crime, that gambling cultivates in local communities.


In 1974, a Florida court sentenced Alvin Bernard Ford to death for first-degree murder. At the time of the murder, trial, and sentencing phase, there was no indication that Ford was suffering from any mental deficiencies. While awaiting execution, Ford's mental condition worsened. His competency was assessed in accordance with Florida procedures. Following this assessment, Florida's Governor signed Ford's death warrant. A state court declined to hear arguments raised about Ford's competency. Without the benefit of a hearing, Ford's habeas corpus petition was then denied by the a federal district court. The U.S. Court of Appeals for the Eleventh Circuit affirmed.

Yes and yes. In a 7-2 decision reversing and remanding the lower court's judgment, Justice Thurgood Marshall writing for the five-justice majority noted that English common law found executing the insane "savage and inhumane." In addition, no State permitted such executions. Opponents of such executions maintained that it "offends humanity" and that such executions had neither a deterrent nor a retributive effect. On the second question, Marshall observed that no state court had heard arguments that Ford was insane. In addition, Florida's competency procedures were inadequate.

Justice Lewis F. Powell, in a separate concurring opinion, agreed that executing an insane inmate violated the Eighth Amendment. For Powell, "the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it." Powell argued that Florida's procedure for determining the competency of the inmate violated due process.

Justice Sandra Day O'Connor joined by Justice Byron R. White, dissented in part. They agreed that Florida's procedures did not protect Ford's due process rights but that "the Eighth Amendment does not create a substantive right not to be executed while insane." Justice William H. Rehnquist further, joined by Chief Justice Warren E. Burger, also maintained that no substantive right was created. In addition, Rehnquist argued that the State's procedures drew sustenance from the common law and were not out of step with contemporary practice.

This abstract was prepared by Adam J. Ruggles, Gloria R. Thornburg, and Peter Watkins.


In December 1980, the Rhode Island State Police force was conducting an authorized wiretap on the telephone of Paul Driscoll. On December 20, the police intercepted two phone calls from an unknown source that made reference to marijuana use that had occurred at a party the previous night at the Briggs’ residence. Edward Malley was the police officer in charge of the Driscoll investigation, and on the basis of these two calls, he drew up felony charges for the Briggs. The charges were presented to a state district court judge in February 1981, and the judge signed warrants for the Briggs’ arrest. The Briggs were arrested in their home on March 19, 1981, and taken to a police station where they were booked and held for several hours before being released. When presented to a grand jury, the charges were dropped.

The Briggs sued Malley in district court and alleged that his application for the warrants for their arrest violated their Fourth and Fourteenth Amendment rights. After the evidence was presented to the jury, Malley moved for a direct verdict, which the district court granted. The district court held that it was judge’s signing of the arrest warrants that was improper and that an officer who believes that he is acting on correct information is entitled to immunity from prosecution. The U.S. Court of Appeals for the First Circuit reversed and held that an officer is not entitled to immunity unless the officer had an “objectively reasonable” basis to believe that the alleged facts are sufficient to establish probable cause for an arrest warrant.

No. Justice Byron R. White delivered the opinion for the 7-2 majority. The Supreme Court held that immunity can be judged on a standard of objective reasonableness. If a reasonable officer could not believe that a warrant has sufficient probable cause, the officer cannot be immune from prosecution. The Supreme Court also held that the officer applying for the warrant bears the burden of liability rather than the magistrate who signs it because, under the constraints of a docket, the magistrate may tend to defer to the officer’s judgment.

In his opinion concurring in part and dissenting in part, Justice Lewis F. Powell, Jr. wrote that, based on the record for this case, a reasonable officer could have assumed that there was probable cause for an arrest warrant. He argued that the majority’s opinion did not grant enough weight to the fact that a judge signed off on the arrest warrant. Because a judge also agreed that there was enough evidence for an arrest, there is substantial evidence that the police officer acted reasonably and should have been granted immunity from damages. Justice William H. Rehnquist joined in the partial concurrence and partial dissent.


A group of Democrats challenged Indiana's 1981 state apportionment scheme on the ground of political gerrymandering. The Democrats argued that the apportionment unconstitutionally diluted their votes in important districts, violating their rights. A three-judge District Court sustained the Democrats' challenge.

No. The Court held that while the apportionment law may have had a discriminatory effect on the Democrats, that effect was not "sufficiently adverse" to violate the Equal Protection Clause. The mere lack of proportional representation did not unconstitutionally diminish the Democrats' electoral power. The Court also ruled that political gerrymandering claims were properly justiciable under the Equal Protection Clause, noting that judicially manageable standards could be discerned and applied in such cases.


Lacy H. Thornburg
Charles Fried
Julius LeVonne Chambers

The North Carolina General Assembly passed a redistricting plan for the state's Senate and House of Representatives. Black citizens of North Carolina alleged that the plan created seven new districts where blacks would not be able to elect representatives of their choosing. They filed suit in a District Court claiming that this violated Section 2 of the Voting Rights Act of 1965 and the Fourteenth and Fifteenth Amendments. Before the District Court could hear the case, Congress amended Section 2 of the Voting Rights Act in order to clarify that voting violations needed only to have a "discriminatory effect" and required no "discriminatory purpose." Considering the "totality of circumstances" of the redistricting plan, the District Court ruled that six of the new districts violated the newly amended Voting Rights Act by diluting the power of the black vote. The North Carolina Attorney General appealed the decision directly to the Supreme Court.

No. The Court found that five of the six contested districts discriminated against blacks by diluting the power of their collective vote. Justice William J. Brennan Jr. delivered the opinion for a unanimous court. The District Court properly performed its function "to ascertain whether minority group members constitute a politically cohesive unit and to determine whether whites vote sufficiently as a bloc usually to defeat the minority's preferred candidate." The District Court correctly analyzed data from three election cycles in North Carolina to determine that the black voters strongly supported black candidates, whereas whites usually voted against black candidates. The redistricting plan apportioned "politically cohesive groups of black voters" into districts where blocs of white voters would consistently defeat the black candidates. In violation of the Voting Rights Act, this damaged the ability of black citizens "to participate equally in the political process and to elect candidates of their choice."


John J. DeFranks
Paul John Cambara, Jr.
Paul John Cambria, Jr.

Investigator David Groblewski from the Erie County District Attorney's Office viewed videos rented from P.J. Video and determined their content violated New York obscenity statutes. He drafted an affidavit describing the content on the videos and filed a warrant authorizing their seizure. A village justice in Depew NY issued the warrant and the police seized ten movies suspected to contain obscene content. A local court determined five of the movies violated obscenity standards. P.J. Video argued that the justice issued the warrant without probable cause since he did not personally view the movies. The court agreed and suppressed the videos as evidence. The County Court of Erie County affirmed the decision, and the New York Court of Appeals also affirmed. It asserted that warrants authorizing the seizure of items that were both non-dangerous and mediums of speech needed to satisfy a higher level of proof of "probable-cause" than other types of warrants because of First Amendment concerns.

No. Justice William H. Rehnquist delivered the opinion for a 6-3 court. The Court determined that the police department did not discriminate based on content. It seized the videos in order to preserve evidence rather than to suppress speech. In nondiscriminatory cases, the Court held that the same test for preventing Fourth Amendment wrongful search violations also secured against First Amendment free speech violations. Particularly, "the First Amendment should be evaluated under the same probable-cause standard used to review warrant applications." The officers met this standard by describing content in the videos that clearly violated the obscenity statutes.


In a series of articles, the Philadelphia Inquirer accused Hepps of links to organized crime and of capitalizing on that connection to influence the state legislature. The Pennsylvania Supreme Court favored Hepps and held that the newspaper was obligated to prove its accusations true.

Yes. Relying on its reasoning in Gertz v. Robert Welch Inc. (1974), the Court reversed the state court's decision. The Gertz standard for evaluating potentially libelous speech required that "the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages."


Ohio Civil Rights Commission v. Dayton Christian Public Schools, Inc.

William B. Ball
Kathleen Mc Manus
Kathleen McManus
William Bentley Ball

Dayton Christian Schools, Inc. (Dayton) is a private, non-profit corporation formed by two churches for the purposes of providing private education at the primary and secondary levels. The corporate charter includes a section that requires employees to subscribe to a particular set of religious beliefs, including a resolution of disputes through the “Biblical chain of command,” which means that all disputes must be handled internally, without redress in civil court. p>

Linda Hoskinson was a teacher at Dayton during the 1978-1979 school year. She agreed to the requirement of the corporate charter, including the Biblical chain of command. In January 1979, Hoskinson informed her principal that she was pregnant and was told that her employment contract would not be renewed because of the organization’s belief that mothers should stay home with their young children. Rather than appealing the decision internally, Hoskinson contacted a lawyer and threatened to sue based on state and federal sex discrimination laws if her employment contract was not renewed. Hoskinson was suspended and then fired for going outside of the internal dispute resolution system.

Hoskinson filed a complaint with the Ohio Civil Rights Commission, which filed an order that required Dayton to reinstate Hoskinson with backpay. When Dayton did not respond, the Commission filed suit. Dayton responded by arguing that that the First Amendment prevented the Commission from having jurisdiction over the exercise of religious beliefs. While the administrative proceedings were pending, Dayton sued the commission in district court and sought an injunction against the state proceedings because they violated the First Amendment. The Commission filed a motion to dismiss and argued that federal abstention doctrines meant that the district court should let the administrative proceedings run their course. The district court refused the issue the injunction without addressing the abstention argument. The U.S. Court of Appeals for the Sixth Circuit reversed and held that allowing the Commission jurisdiction over Dayton would violate the First Amendment.

Yes. Justice William H. Rehnquist delivered the opinion of the 9-0 majority. The Supreme Court held that federal courts should abstain from adjudicating civil state proceedings in which important state interests are involved. As long as the plaintiff has a full and fair opportunity to litigate the constitutional claim, there is no reason for the district court to become involved. Because the Ohio court has the authority to consider whether the Commission’s actions violated the First Amendment, the issue can be fully addressed in state court.

Justice John Paul Stevens wrote a concurring opinion where he argued that the district court’s decision on the merits of the case was correct. The Commission merely investigated a complaint based on Dayton’s conduct and filed suit; there was no evidence that the Commission intended to impose a sanction. Without the threat of a sanction, there is no potential constitutional violation. Justice William J. Brennan, Jr., Justice Thurgood Marshall, and Justice Harry A. Blackmun joined in the concurrence.


John D. Maddox
William Bradford Reynolds
William L. Summers

Section 706(g)of Title VII of the Civil Rights Act prohibits a court from ordering the promotion of an individual who was denied advancement for any reason other than racial discrimination. In 1980, the Vanguards of Cleveland, an organization of black and Hispanic firefighters employed by the City of Cleveland, filed a lawsuit alleging that the City’s system for hiring and promoting firefighters discriminated against racial minorities, which violated Title VII of the Civil Rights Act. Shortly after the City entered into settlement negotiations with the Vanguards, Local Number 93 of the International Association of Firefighters (a union representing a majority of Cleveland firefighters) moved to intervene as a party-plaintiff according to a Federal Rule of Civil Procedure that allows a nonparty to join an ongoing lawsuit in order to protect its rights from being affected by the litigation. The union argued that it had an interest in the suit because of its concern that promotions based upon a “racial quota system” (rather than competence exams or seniority rights) would detract from the quality of the Cleveland firefighting force. The Court approved the motion and ordered the Vanguards and the City to engage the union in settlement negotiations.

During the negotiations, the union membership overwhelmingly rejected a consent decree between the parties that increased the total number of supervisory positions within the Fire Department without specifying to whom those positions would be given. The Vanguards and the City moved for the approval of an amended consent decree that adopted the agreed-upon promotional system but was not subject to the union members’ approval. The district court approved the consent decree over the union’s objections. On appeal, the U.S. Court of Appeals for the Sixth Circuit affirmed. Local Number 93 petitioned the Court for a writ of certiorari based on its argument that the consent decree was an impermissible remedy under Section 706(g) of Title VII. According to the union, the court was precluded from approving the new promotional system because it may benefit individuals who were not actual victims of racial discrimination.

No. Justice William J. Brennan, Jr. delivered the opinion of the 6-3 majority. The Court held that Section 706(g) does not apply to relief awarded in a consent decree. Although a consent decree has several characteristics of a judicial order, the Court found that it was not an “order” for purposes of Section 706(g) because of its voluntary, contractual nature. Additionally, the legislative history surrounding the enactment of Title VII suggests that Congress intended to encourage private, voluntary remedies for past discrimination. Because the consent decree did not “bind Local 93 to do or not to do anything,” it did not preclude the union from raising claims it may have under other laws, such as the unlawful employment provisions of Title VII.

In her concurring opinion, Justice Sandra Day O’Connor emphasized the narrow nature of the majority’s opinion. Even though the union had not raised the claims before the Court in its petition for certiorari, the non-minority employees retained the ability to challenge the consent decree under Section 703 of Title VII or the 14th Amendment.

Justice Byron R. White wrote a dissent in which he argued that the consent decree fell under the purview of Section 706(g) and therefore was not a permissible remedy for past discrimination because it benefited minorities who may not have been the actual victims of the City’s racially discriminatory promotional system for firefighters. In a separate dissenting opinion, Justice William H. Rehnquist argued that a consent decree is a judicial order and subject to the limitations of Section 706(g). He wrote that the district court’s failure to make a finding about past discrimination toward each minority firefighter who would receive preferential treatment under the new promotional system rendered the consent decree an impermissible judicial order. Chief Justice Warren E. Burger joined the dissent.


Matsushita Electric Industrial Company, Ltd. v. Zenith Radio Corporation

Donald J. Zoeller
Edwin P. Rome
Charles F. Rule

In 1974, Zenith Radio Corporation, an American manufacturer of consumer electronic products, and National Union Electronic Company (collectively referred to as Zenith) sued 21 Japanese-owned or -controlled manufacturers of consumer electronics and claimed that these companies conspired to drive the American companies out of the market. According to Zenith, the Japanese companies conspired to set artificially high prices for their products in Japan to offset the artificially low prices of their products in America, which was harmful to the American companies. Zenith claimed this conspiracy was a violation of several anti-trust laws intended to prevent price-fixing. The Japanese companies filed a motion for summary judgment. After finding the bulk of Zenith’s evidence inadmissible, the district court held that the admissible evidence did not raise a genuine issue of material fact and granted the motion for summary judgment in favor of the Japanese companies.

The U.S. Court of Appeals for the Third Circuit reversed and held that most of Zenith’s evidence was admissible. On the merits of the case, and in light of the greater amount of admissible evidence, the Court of Appeals held that a reasonable factfinder could find evidence of a conspiracy and that the district court improperly granted the summary judgment in favor of the Japanese companies.

No. Justice Lewis F. Powell, Jr. delivered the opinion for the 5-4 majority. The Supreme Court held that evidence of alleged conspiracies is not sufficient to prove allegations of violating antitrust legislation unless there is evidence that the conspiracies in question injured American companies. To effectively oppose the motion for summary judgment, the evidence must show that the respondents suffered harm as a result of the petitioners’ illegal activity and that there is a genuine issue of material fact for trial. The Court also held that all inferences drawn in a motion for summary judgment must be construed in the light most favorable to the side opposing the motion, but in antitrust cases those inferences are constrained by economic factors. In this case, the alleged conspiracy would be economically irrational and therefore cannot be inferred to exist.

Justice Byron R. White wrote a dissenting opinion where he argued that the majority’s opinion unnecessarily confuses the standard by which a motion for summary judgment should be adjudicated. In an antitrust summary judgment hearing, it is not the job of the judge to determine whether an inference of a conspiracy is more probable than not. In doing so, the Court invades the role of the finder of fact. He also argued that the Third Circuit was correct in holding that the evidence demonstrated a genuine issue of material fact for trial. Justice William J. Brennan, Jr., Justice Harry A. Blackmun, and Justice John Paul Stevens joined in the dissent.


Lloyd N. Cutler
Alan B. Morrison
Steven R. Ross
Charles Fried
Michael Davidson
Lois G. Williams

Due to rising government budget deficits during the first term of the Reagan Administration, Congress passed the Gramm-Rudman-Hollings Deficit Control Act of 1985. The act was designed to eliminate the federal budget deficit by restricting spending during fiscal years 1986 through 1991. Under the law, if maximum allowable deficit amounts were exceeded, automatic cuts, as requested by the Comptroller General, would go into effect. This case was decided together with O'Neill v. Synar and United States Senate v. Synar.

The Court found that the duties which the Congress delegated to the Comptroller General did violate the doctrine of separation of powers and were unconstitutional. A two step process led Chief Justice Burger to arrive at this conclusion. First, in exploring the statute defining the provisions of the Comptroller General's office relating to the Congress's power of removal, it was clear to Burger that this officer was subservient to the legislative branch. Second, in examining the functions that this officer would carry out under the Deficit Control Act, Burger concluded that the Comptroller General was being asked to execute the laws and, thus, was intruding on the prerogatives of the executive branch.


John Charles Boger
Mary Beth Westmoreland

McCleskey, a black man, was convicted of murdering a police officer in Georgia and sentenced to death. In a writ of habeas corpus, McCleskey argued that a statistical study proved that the imposition of the death penalty in Georgia depended to some extent on the race of the victim and the accused. The study found that black defendants who kill white victims are the most likely to receive death sentences in the state.

The Court held that since McCleskey could not prove that purposeful discrimination which had a discriminatory effect on him existed in this particular trial, there was no constitutional violation. Justice Powell refused to apply the statistical study in this case given the unique circumstances and nature of decisions that face all juries in capital cases. He argued that the data McCleskey produced is best presented to legislative bodies and not to the courts.


On November 11, 1983, FBI Agent Russell Anderson, along with other state and federal officers, conducted a warrantless search of the Creighton family home based on the belief that Vadaain Dixon, a man suspected of robbing a bank earlier that day, was hiding in the house. The Creightons sued Anderson in Minnesota state court and filed a claim for monetary damages under the Fourth Amendment. The suit was removed to federal district court, where Anderson moved for dismissal or summary judgment based on his alleged qualified immunity from civil damages liability. Qualified immunity shields government officials from liability for certain violations of an individual’s constitutional rights. The district court granted summary judgment for Anderson after finding that the search was lawful because Anderson had probable cause.

The U.S. Court of Appeals for the Eighth Circuit reversed and held that the case could not be decided on summary judgment because there were unresolved factual disputes regarding the legality of the search. The Court of Appeals also held that that Anderson did not have qualified immunity because the right he allegedly violated was the well-established Fourth Amendment right to protection from warrantless searches of a home.

No. Justice Antonin Scalia delivered the opinion of the 6-3 majority. The Court held that an officer of the law has qualified immunity from civil liability if the actions that officer took “could reasonably have been thought consistent” with the allegedly violated rights. Because Anderson could reasonably believe that his actions were legal, he is entitled to qualified immunity. The Court also held that the determination of whether an official is entitled to qualified immunity should be determined based on the reasonable belief of the legality of the search, rather than the actual legality of the search.

Justice John Paul Stevens wrote a dissenting opinion where he argued that the majority’s opinion unnecessarily expands the idea of qualified immunity beyond high political officials to police officers, whom it is in the public’s best interests to hold accountable for their actions. He also argued that the lower court was correct in holding that summary judgment cannot be granted without resolving the factual disputes regarding the constitutionality of the search. Justice William J. Brennan, Jr. and Justice Thurgood Marshall joined in the dissent.


Henry Thomas Herschel
Floyd R. Finch, Jr.

In the late 1970s, Renz Correctional Institution converted to a “complex prison”. Generally, female prisoners at Renz were medium and maximum security level offenders, while most male inmates were minimum security offenders. Leonard Safley was a male inmate at Renz, and P.J. Watson was a female inmate. They met at Renz, where they became romantically involved; Watson was then transferred to Ozark Correctional Center because of this relationship. Prison authorities rebuffed all of Safley’s attempts to directly contact Watson.

A Missouri Division of Corrections regulation permitted correspondence between inmates who were immediate family members, but correspondence between inmates who were not family members was only allowed if 1) it related to legal matters or 2) at the discretion of the classification/treatment team of both inmates. Another regulation only permitted inmates to marry with the permission of the prison superintendent, and specified that permission should only be given when there was a compelling reason to do so.

The district court certified plaintiffs as a class including inmates at Renz who desired to correspond with inmates at other prison facilities. This class also included persons who wished to marry inmates at Missouri correctional facilities and whose right to marry had been allegedly violated by the DoC. Plaintiffs filed an action against Renz's Superintendent William Turner and others for injunctive relief and damages. The district court applied strict scrutiny to both DoC restrictions. It held that the restriction on correspondence was overly broad and capriciously applied, and that the marriage restriction violated inmates’ constitutional right to marry. The United States Court of Appeals, Eighth Circuit, affirmed, further holding that neither restriction was the narrowest means of addressing the DoC’s security concerns.

No and yes. In a 5-4 decision written by Justice Sandra Day O’Connor and joined by Chief Justice William Rehnquist, Justice Byron White, Justice Louis Powell and Justice Antonin Scalia, the Court upheld the Missouri Department of Correction’s restriction on correspondence between inmates. Justice O’Connor looked to the Court’s test for determining the reasonableness of restrictions on prison inmates’ expressive freedom. She argued that this particular content-neutral restriction on correspondence between inmates was logically connected to the DoC’s legitimate security concerns, noting the danger of coordinated gang activity in Missouri prisons. Justice O’Connor further reasoned that the restrictions did not deprive inmates of all means of expression, only limiting correspondence with a particular class of people. She argued that the Eighth Circuit failed to consider the impact easing the restriction might have on the liberty and safety of prison guards and other inmates. Finally, Justice O’Connor argued that there were no obvious, easy alternatives to the DoC’s restrictions.

Turning to the DoC’s marriage restriction, Justice O’Connor held that it was an unconstitutional violation of inmates’ fundamental right to marry. While acknowledging that prisoners’ right to marry is subject to restriction, she argued that many important aspects of marriage should not be altered by a person’s incarceration, including the potential emotional and religious impact of marriage to another. Hence, Missouri prisoners retained a constitutionally-protected right to marry. Justice O’Connor further held that the DoC’s marriage restriction was not reasonably related to its stated interest in preventing violence in prisons and in the rehabilitation of female prisoners.

Justice John Paul Stevens, joined by Justices William Brennan, Thurgood Marshall, and Harry Blackmun, concurred in part and dissented in part. While agreeing with the majority’s holding that the marriage restriction was unconstitutional, he rejected the majority’s application of a reasonableness standard to the facts on record. Justice Stevens argued that the majority improperly accepted the DoC’s mostly speculative arguments with respect to the DoC’s security concerns about inmate correspondence, while rejecting the DoC’s similarly speculative concerns about marriage between inmates.


Seth Jeremy Benezra
Lawrence S. Robbins
Maureen Phelan

In February 1979, John Leroy Spring and a companion shot and killed Donald Walker during a hunting trip in Colorado. Shortly after, agents of the Bureau of Alcohol, Tobacco, and Firearms (ATF) received information from an informant that Spring was involved in the transportation of stolen firearms across state lines. The informant also told the agents the Spring had been talking about killing Walker. The agents set up an undercover operation and arrested Spring on March 30. Spring was advised of his Miranda rights at the scene of the arrest and again at the police station. He then signed a document stating that he understood and waived his rights and was willing to make a statement. After asking Spring about the firearms transactions, the agents asked Spring if he had ever shot anyone, and if he had shot Walker in Colorado. Spring admitted to shooting someone but denied shooting Walker, and the interview ended. On May 26, Colorado police officers visited Spring in jail intending to question him about the Walker murder. They read Spring his Miranda rights, and he signed a document stating that he waived them. During the course of the interview, Spring confessed to the murder.

Spring was charged with first-degree murder in Colorado state court. He moved to suppress both the March 30 and May 26 statements by arguing that he invalidly waived his Miranda rights. The trial court held that the police’s failure to inform Spring of the topics that would be covered in questioning did not affect the the waiver, but the content of the March 30 interview was not relevant. The trial court suppressed the March 30 statement and admitted the May 26 statement into evidence. Spring was convicted. On appeal, Spring renewed his argument about the waiver of his Miranda rights for the March 30 statement and argued that the May 26 statement was the “illegal fruit” of the March 30 statement. The Colorado Court of Appeals reversed and held that the March 30 statement was inadmissible because the ATF agents had a duty to inform Spring that he was a suspect in the Walker murder before questioning him about it. The Court of Appeals also held that the state failed to meet its burden to prove that the May 26 statement was not the product of the earlier illegal statement. The Colorado Supreme Court affirmed.

No. Justice Lewis F. Powell, Jr. delivered the opinion of the 7-2 majority. The Supreme Court held that there was no evidence that Spring was in any way coerced into signing the waiver of his Fifth Amendment rights or that he was prevented from understanding his rights and the consequences of waiving them. The Constitution does not require that the suspect understand every possible nuance of the consequences of waiving his rights, but rather that he understand that whatever he says may be used against him. The Court also held that police silence regarding the topics of an interrogation is not an attempt to trick the suspect and does not affect the validity of the waiver. Because the interrogation on March 30 was not illegal, the May 26 statements cannot be considered “fruit of the poisonous tree.”

In his dissent, Justice Thurgood Marshall argued that the state failed to meet the heavy burden to prove that Spring’s waiver was valid and that the scope of the questioning was highly relevant to Spring’s decision. He also argued that the agents’ silence on the extent of their questions was an interrogation technique designed to draw Spring into confessing more than he would have otherwise. Justice William J. Brennan, Jr. joined in the dissent.


In response to a series of NAACP-initiated lawsuits in the 1970s, the Alabama Department of Public Safety was required to implement a promotion scheme in which half of the department's promotions to certain ranks would go to black officers if enough qualified blacks were available.

In a plurality opinion, the Court upheld the promotion plan. The scheme did not impose an "absolute bar" to white advancement, was narrowly drawn to include only specific ranks in the department, and, according to the four justices who voted to affirm it, was "required in light of the Department's long and shameful record of delay and resistance" in complying with past judicial decisions. It is important to remember that courts had first found the Department's practices unconstitutional in 1972.


Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc.

The Board of Airport Commissioners of Los Angeles adopted an ordinance which prohibited all "First Amendment activities" in the Los Angeles International Airport (LAX). Alan Snyder, a minister with Jews for Jesus, was instructed by an airport officer to refrain from distributing free religious literature on a walkway in the central terminal of LAX.

Yes. Using the "First Amendment overbreadth doctrine," which allows an individual to challenge a statute on its face which is potentially threatening to others, the Court found that the ordinance violated the Constitution. Justice O'Connor argued that the rule was vague, overly broad, and would have effectively prohibited activities such as reading, talking, or wearing expressive shirts or political buttons in the LAX terminal. Allowing such an ordinance, which touched "the universe of expressive activity" in its totality, would have caused LAX to become a "First Amendment Free Zone," according to O'Connor.


Nathan B. Coats
Andrew J. Pincus
Thomas M. Van Cleave, III

In 1983, Francis Connelly approached a police officer and, without any prompting, confessed to murder. The police officer immediately informed Connelly that he had the right to remain silent, but Connelly indicated that he still wished to discuss the murder. It was later discovered that Connelly was suffering from chronic schizophrenia at the time of the confession. A Colorado trial court suppressed the statements on the ground that they were made involuntarily.

The Court held that because the taking of Connelly's statements as evidence did not involve any element of governmental coercion, no violation of the Due Process Clause occurred. The Court argued that suppressing statements in cases where suspects were not coerced would have no deterrent effect on future violations of the Constitution by the police. The Court noted that "Miranda protects defendants against government coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that."


Anthony Tanner and William Conover were indicted on charges of conspiracy to defraud the United States and of mail fraud.  After the jury ruled, Tanner and Conover filed a motion for a new trial based on an affidavit stating that several jurors consumed alcohol during lunch breaks.  The district court held an evidentiary hearing and denied relief, holding that juror testimony was inadmissible to impeach a jury verdict under Rule 606(b).  There was insufficient evidence other than that testimony of juror misconduct.  Tanner and Conover filed another motion, this time alleging juror use of alcohol, marijuana, and cocaine during the trial.  The district court declined to hold another evidentiary hearing.  On appeal the U.S. Court of Appeals for the 11th Circuit affirmed the convictions, holding that the district court did not abuse its discretion in refusing to hold a second evidentiary hearing.

No.  In a 5-4 decision, Justice Sandra Day O’Connor wrote the majority opinion affirming in part and remanding.  The Supreme Court held that the district court was right to refuse to admit juror testimony in the evidentiary hearing.  There was insufficient non-juror testimony to substantiate the claims of juror misconduct.  The Supreme Court remanded the case for further consideration of the conspiracy claims.

Justice Thurgood Marshall wrote a partial dissent, stating that juror testimony was admissible under Rule 606(b), and allowing the district court to ignore sworn affidavits from jurors violated the Sixth Amendment right to a competent jury.  Justices William J. Brennan, Harry A. Blackmun, and John Paul Stevens joined in the dissent


In 1973, the Supreme Court decided Miller v. California and established a three-prong test for determining whether material is obscene. The test asks whether the material in question appeals to a prurient interest, describes sexual conduct in a patently offensive manner, and whether the work as a whole lacks “serious literary, artistic, political, or scientific value.”

On July 21, 1983, police detectives in Rockford, Illinois, purchased magazines from Richard Pope and Charles Morrison, both of whom were attendants in an adult bookstore. Pope and Morrison were subsquently charged under Illinois’ obscenity statute for the sale of those magazines. They each moved to dismiss the charges and argued that the statute was unconstitutional under the First and Fourteenth Amendments because it did not require that the value of the work in question be judged on an objective basis but instead allowed for judgment based on contemporary community standards. The trial courts denied the motions and instructed the juries to determine whether the material would be viewed as obscene by adults in Illinois. Pope and Morrison appealed, and the Illinois Appellate Court, Second District, affirmed the ruling of the lower courts. The Illinois Supreme Court denied review.

No. Justice Byron R. White delivered the opinion of the 5-4 majority. The Court held that, while the first two prongs of the Miller test may be determined based on contemporary community standards, the third prong must be determined based on whether a reasonable person would find value in the material. In this manner, the work in question is protected from needing to obtain majority approval to be deemed of value. Because the statute under which Pope and Morrison were convicted had already been repealed, the Court held that the case should be remanded for consideration of whether the error in this case was harmless.

In his concurring opinion, Justice Scalia agreed that the Miller test was meant to be adjudicated based on what a reasonable person would find valuable, but he also argued that art could not be judged objectively.

Justice Harry A. Blackmun wrote a partial concurrence and partial dissent in which he argued that the “harmless error” analysis proposed in the majority opinion was inappropriate in this case, but the majority opinion correctly protected a work from being judged solely by the value, or lack thereof, that a majority of community members might ascribe to it.

Justice John Paul Stevens wrote a dissent in which he argued that the error in this case was harmful to Pope and Morrison because the jury evaluated their guilt based on unconstitutional instructions. Justice Stevens also wrote that the majority opinion’s attempt to clarify the definition of obscenity subjected the First Amendment’s protection of free speech to the whims of jurors who might believe that a majority view on the value of a work is more reasonable than a minority view. The difficulty in attempting to define obscenity reflects what Justice Stevens found to be the constitutional impossibility of criminalizing the creation or sale of obscene literature to consenting adults. Justice Thurgood Marshall, Justice William J. Brennan, Jr., and Justice Blackmun joined in the dissent. In his separate dissent, Justice Brennan wrote that the concept of obscenity cannot be sufficiently defined to provide fair notice to the creators and purveyors of sexually oriented materials without also seriously undermining the First Amendment protection of free speech.