Taking Sides: Clashing Views on Legal Issues, 15th Edition

Unit 1 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” (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 NSA wiretapping program ordered by President Bush does not violate federal law, specifically the Foreign Intelligent Surveillance Act (FISA), because such surveillance falls under the auspices of the military response to the 9/11 attacks that was authorized by Congress. Several lawyers with expertise in constitutional law or experience in the federal government argue that the NSA wiretapping program violates the Foreign Intelligence Surveillance Act (FISA) and the Fourth Amendment of the U.S. Constitution. They further argue that the president does not have any inherent ability either to engage in warrantless wiretapping or to violate federal law that limits such surveillance.

Unit 2 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 postviability, must include a health exception.

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

NO: Stephen Reinhardt, from Opinion for the Court, Compassion in Dying v. State of Washington, U.S. Court of Appeals for the Ninth Circuit (1996)

Former Supreme Court Chief Justice William H. Rehnquist rules that although patients have the right to refuse life-sustaining treatment, physician-assisted suicide is not constitutionally protected. Judge Stephen Reinhardt argues that forbidding physician-assisted suicide in the cases of competent, terminally ill patients violates the due process clause of the Constitution.

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

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

Justice Ginsburg believes that the 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 Breyer does not want the 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 3 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 L. Rev., v. 32, pp. 267–304 (2005)

NO: Charles Gardner Geyh, from “Why Judicial Elections Stink,” Ohio St. L. J., v. 64, pp. 43–79 (2003)

Professor Charles Geyh criticizes the practice of electing judges and argues that it reduces judicial independence and accountability. Professor Michael Dimino 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.

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

NO: David Souter, from Dissenting Opinion, Good News Club, et al., 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: John Roberts, from Majority Opinion, Snyder v. Phelps, U.S. Supreme Court (March 2, 2011)

NO: Samuel Alito, from Dissenting Opinion, Snyder v. Phelps, U.S. Supreme Court (March 2, 2011)

Chief Justice John Roberts holds that picketing a soldier’s funeral in a way that may be hurtful to those attending is still protected by the First Amendment. Justice Samuel Alito argues that intentionally inflicting severe emotional injury on private persons should not be considered to be protected speech.

YES: John Roberts, from Majority Op inion, Deborah Morse, et al., v. Joseph Frederick, U.S. Supreme Court, (June 25, 2007)

NO: John Paul Stevens, from Dissenting Opinion, Deborah Morse, et al., v. Joseph Frederick, U.S. Supreme Court (June 25, 2007)

Supreme Court Chief Justice John Roberts rules that a student’s First Amendment rights are not violated by restrictions on speech that can reasonably be regarded as encouraging illegal drug use. Supreme Court Justice John Paul Stevens argues that an ambiguous reference to drugs does not justify limiting a student’s speech.

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 was 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: Anthony Kennedy, from Majority Opinion, Roper v. Simmons, U.S. Supreme Court (March 1, 2005)

NO: Antonin Scalia, from Dissenting Opinion, Roper v. 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.

YES: Sandra Day O’Connor, from Majority Opinion, Lockyer v. Andrade, U.S. Supreme Court (March 5, 2003)

NO: David Souter, from Dissenting Opinion, Lockyer v. Andrade, U.S. Supreme Court (March 5, 2003)

Supreme Court Justice Sandra Day O’Connor rules that a decision in a case involving the theft of $150 worth of merchandise that resulted in two consecutive terms of 25 years to life in prison for a “third strike” conviction was not “grossly disproportional” to the crime nor “contrary to, or an unreasonable application of, clearly established federal law.” Supreme Court Justice David Souter argues that, under several prior Supreme Court decisions, the “third strike” punishment in this case was grossly disproportional to the crime committed.

YES: Samuel Alito, from Majority Opinion, Kentucky v. King, U.S. Supreme Court (May 16, 2011)

NO: Ruth Bader Ginsburg, from Dissenting Opinion, Kentucky v. King, U.S. Supreme Court (May 16, 2011)

Justice Samuel Alito holds that a warrant is unnecessary when “exigent circumstances” exist and the police have not created them. Justice Ruth Bader Ginsburg believes that the “exigent circumstances” must exist before the police arrive and that in this case a warrant should have been obtained before entry into the apartment.

YES: Antonin Scalia, from Majority Opinion, Danny Lee Kyllo v. United States, U.S. Supreme Court (June 11, 2001)

NO: John Paul Stevens, from Dissenting Opinion, Danny Lee Kyllo v. United States, U.S. Supreme Court (June 11, 2001)

Supreme Court Justice Antonin Scalia maintains that thermal imaging devices reveal information “that would previously have been unknowable without physical intrusion” and that using such devices for surveillance without a warrant constitutes a violation of the Fourth Amendment. Supreme Court Justice John Paul Stevens asserts that the Court’s application of search and seizure rules to new technology is too broad and that collecting thermal imaging data from outside the home is not a violation of privacy rights.

Unit 4 Law and the Community