Taking Sides: Clashing Views on Legal Issues, 16th Edition

UNIT: Law and Terrorism

YES: Sandra Day O’Connor, from “Majority Opinion, Hamdi v. Rumsfeld” (U.S. Supreme Court, June 28, 2004)

NO: Clarence Thomas, from “Minority Opinion, Hamdi v. Rumsfeld” (U.S. Supreme Court, June 28, 2004)

Supreme Court Justice Sandra Day O’Connor finds that the Authorization for Use of Military Force passed by Congress does not authorize the indefinite detainment of a person found to be an “enemy combatant.” Justice Clarence Thomas believes that the detention of an “enemy combatant” is permitted under the federal government’s war powers.

YES: U.S. Department of Justice, from “Legal Authorities Supporting the Activities of the National Security Agency Described by the President” (United States Department of Justice, January 19, 2006)

NO: Letter to Congress, from “14 Law Professors and Former Government Attorneys to Congressional Leaders” (January 2, 2006)

The Department of Justice argues that the Constitution gives the President the right to engage in electronic surveillance, with or without congressional approval or judicial oversight. It further claims that the National Security Agency (NSA) wiretapping program ordered by President Bush does not violate federal law, specifically the Foreign Intelligence Surveillance Act (FISA), because such surveillance falls under the auspices of the military response to the 9/11 attacks, which was authorized by Congress. Several lawyers with expertise in constitutional law or experience in the federal government argue that the NSA wiretapping program violates FISA and the Fourth Amendment of the U.S. Constitution. They further argue that the President does not have any inherent authority either to engage in warrantless wiretapping or to violate federal law that limits such surveillance.

UNIT: Law and the Individual

YES: Antonin Scalia, from “Majority Opinion, Brown v. Entertainment Merchants Association” (U.S. Supreme Court, June 27, 2011)

NO: Stephen Breyer, from “Dissenting Opinion, Brown v. Entertainment Merchants Association” (U.S. Supreme Court, June 27, 2011)

Supreme Court Justice Antonin Scalia argues that legislation creating a whole new category of speech that is banned only for children violates the First Amendment. Justice Stephen Breyer believes that the California law restricting the purchase of video games by minors is clear.

YES: Anthony Kennedy, from “Majority Opinion, Gonzales v. Carhart” (U.S. Supreme Court, April 18, 2007)

NO: Ruth Bader Ginsburg, from “Dissenting Opinion, Gonzales v. Carhart” (U.S. Supreme Court, April 18, 2007)

Justice Anthony Kennedy rules that the federal Partial-Birth Abortion Ban Act of 2003 was constitutional even without a “health exception” for the woman. In dissent, Justice Ruth Bader Ginsburg argues that the law clearly contravenes the Court’s holding in prior cases that any regulation limiting a woman’s access to abortion, even post-viability, must include a health exception.

YES: William H. Rehnquist, from “Majority Opinion, Washington v. Glucksberg” (U.S. Supreme Court, June 26, 1997)

NO: Stephen Reinhardt, from “Majority Opinion, Compassion in Dying v. State of Washington” (U.S. Supreme Court, May 28, 1996)

Former Supreme Court Chief Justice William H. Rehnquist, writing one of six opinions of a unanimous Court in Washington v. Glucksberg, rules that although patients have the right to refuse life-sustaining medical treatment, “physician-assisted suicide” is not constitutionally protected, and states may ban that practice. Judge Stephen Reinhardt, writing the majority opinion for the Ninth Circuit case that became Washington v. Glucksberg when it reached the U.S. Supreme Court, argues that criminalizing physician assistance in hastening the death of competent, terminally ill patients who request life-ending prescriptions violates the Due Process Clause of the Constitution.

YES: Ruth Bader Ginsburg, from “Concurring Opinion, Metro-Goldwyn-Mayer Studios Inc., et al., v. Grokster, Ltd., et al.” (U.S. Supreme Court, June 27, 2005)

NO: Stephen Breyer, from “Concurring Opinion, Metro-Goldwyn-Mayer Studios Inc., et al., Petitioners v. Grokster, Ltd., et al.” (U.S. Supreme Court, June 27, 2005)

Justice Ruth Bader Ginsburg believes that copyright laws are violated by a company when its software is used primarily for illegal file sharing, and lawful uses in the future are unlikely. Justice Stephen Breyer does not want copyright laws to hinder technological innovation and is more willing to take into account the potential use of the software for lawful file sharing.

YES: Anthony Kennedy, from “Majority Opinion, Brown v. Plata” (U.S. Supreme Court, May 23, 2011)

NO: Antonin Scalia, from “Dissenting Opinion, Brown v. Plata” (U.S. Supreme Court, May 23, 2011)

Supreme Court Justice Anthony Kennedy rules that if a prison deprives prisoners of basic sustenance, including adequate medical care, the courts have a responsibility to remedy the resulting violation of the Eighth Amendment. Justice Antonin Scalia believes that a ruling that may result in the release of 40,000 prisoners is unwarranted and unprecedented.

UNIT: Law and the State

YES: Michael R. Dimino, Sr., from “The Worst Way of Selecting Judges—Except All the Others That Have Been Tried,” Northern Kentucky Law Review (Vol. 32, pp. 267–304, 2005)

NO: Charles Gardner Geyh, from “Why Judicial Elections Stink,” Ohio State Law Journal (Vol. 64, pp. 43–79, 2003)

Professor Michael Dimino, Sr., claims that electing judges is no worse than appointing them and that it is appropriate for citizens to have a say in who will be making decisions that affect them. Professor Charles Geyh criticizes the practice of electing judges and argues that it reduces judicial independence and accountability.

YES: Clarence Thomas, from “Majority Opinion, Good News Club v. Milford Central School” (U.S. Supreme Court, June 11, 2001)

NO: David Souter, from “Dissenting Opinion, Good News Club v. Milford Central School” (U.S. Supreme Court, June 11, 2001)

Supreme Court Justice Clarence Thomas affirms the right of religious groups to use school facilities after the school day ends, maintaining that restricting such use is a violation of free speech rights. Supreme Court Justice David Souter, dissenting from the Court’s opinion, contends that the use of school facilities by religious groups blurs the line between public classroom instruction and private religious indoctrination and therefore violates the Establishment Clause of the Constitution.

YES: David Souter, from “Majority Opinion, Safford Unified School District, et al., v. April Redding” (U.S. Supreme Court, June 25, 2009)

NO: Clarence Thomas, from “Dissenting Opinion, Safford Unified School District, et al., v. April Redding” (U.S. Supreme Court, June 25, 2009)

Supreme Court Justice David Souter holds that a search in school requires a reasonable belief that evidence of wrongdoing will be found and that the search is not excessively intrusive in light of the age and sex of the student. Supreme Court Justice Clarence Thomas argues that the Fourth Amendment is not violated when there is reasonable suspicion that the student is in possession of drugs banned by school policy and the search is in an area where small pills could be concealed.

YES: Antonin Scalia, from “Majority Opinion, Florida v. Jardines” (U.S. Supreme Court, March 26, 2013)

NO: Samuel Anthony Alito, Jr., from “Dissenting Opinion, Florida v. Jardines” (U.S. Supreme Court, March 26, 2013)

Supreme Court Justice Antonin Scalia finds that it is a search and a violation of the Fourth Amendment when police obtain evidence by allowing a trained dog to physically enter and occupy an area outside a home in which permission has not been obtained from the home owner. Supreme Court Justice Samuel Alito disagrees that there was a trespass here or that the dog sniff could be considered an invasion of any reasonable expectation of privacy given that one can expect that odors will float outside of a house.

YES: Anthony Kennedy, from “Majority Opinion, Donald P. Roper, Superintendent, Potosi Correctional Center, Petitioner v. Christopher Simmons” (U.S. Supreme Court, March 1, 2005)

NO: Antonin Scalia, from “Minority Opinion, Donald P. Roper, Superintendent, Potosi Correctional Center, Petitioner v. Christopher Simmons” (U.S. Supreme Court, March 1, 2005)

Supreme Court Justice Anthony Kennedy holds that the Constitution prohibits the execution of a person who was under the age of 18 at the time of the offense. Supreme Court Justice Antonin Scalia believes that the Constitution does not preclude the execution of a juvenile.

UNIT: Law and the Community

YES: Antonin Scalia, from “Majority Opinion, District of Columbia, et al., v. Heller” (U.S. Supreme Court, June 26, 2008)

NO: John Paul Stevens, from “Dissenting Opinion, District of Columbia, et al., v. Heller” (U.S. Supreme Court, June 26, 2008)

Supreme Court Justice Antonin Scalia argues that the Second Amendment protects the right of a private citizen to own a handgun for self-defense. Supreme Court Justice John Paul Stevens argues that a previous case, United States v. Miller, held that the Second Amendment did not protect the right of a private citizen to own a handgun for self-defense.

YES: Sandra Day O’Connor, from “Plurality Opinion, Virginia v. Black” (U.S. Supreme Court, April 7, 2003)

NO: Clarence Thomas, from “Dissenting Opinion, Virginia v. Black” (U.S. Supreme Court, April 7, 2003)

Supreme Court Justice Sandra Day O’Connor argues that part of a Virginia statute proscribing cross burning with the intent to intimidate is constitutional because it is content discrimination based on the very reasons that make it constitutional; however, part of the statute is unconstitutional insofar as it requires an inference of intent to intimidate solely based on the action of cross burning itself, which is symbolic speech. Supreme Court Justice Clarence Thomas disagrees with part of the statute being held unconstitutional, arguing that the history and nature of cross burning in the United States inextricably links the act to threatening and menacing violence and that the intent to intimidate can therefore be inferred solely from the act of cross burning itself.

YES: Anthony Kennedy, from “Majority Opinion, Maryland v. King” (U.S. Supreme Court, June 3, 2013)

NO: Antonin Scalia, from “Dissenting Opinion, Maryland v. King” (U.S. Supreme Court, June 3, 2013)

Justice Anthony Kennedy rules that using a cheek swab to collect a person’s DNA during post-arrest processing is a reasonable search under the Fourth Amendment because it is predominantly used to confirm the identity of the arrestee. Justice Antonin Scalia argues that DNA collection at the time of arrest is an unreasonable search because the arrestee’s DNA profile is predominantly used to investigate unrelated crimes.

YES: Anthony Kennedy, from “Majority Opinion, United States v. Windsor” (U.S. Supreme Court, June 26, 2013)

NO: Samuel Anthony Alito, Jr., from “Minority Opinion, United States v. Windsor” (U.S. Supreme Court, June 26, 2013)

Supreme Court Justice Anthony Kennedy holds that the Fifth Amendment’s guarantee of equal protection is violated by defining marriage solely as between one man and one woman and precluding same-sex couples legally married under state law of the same benefits and obligations of married couples under federal law. Supreme Court Justice Samuel Alito holds that the Constitution does not guarantee the right to enter into a same-sex marriage and that the government has the right to ...