Schultz D. Encyclopedia of the United States Constitution

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of appeals judge from 1982 to 1988. He became

a fellow at the American Enterprise Institution

for Public Policy Research in 1988. His many

publications include Slouching Towards Gomor-

rah (1997), The Tempting of America (1997), and

Coercing Virtue (2003).

He is ﬁ rst known for his dark role in the Water-

gate scandal and his willingness to carry out Pres-

ident Richard Nixon’s order to ﬁ re Watergate

special prosecutor Archibald Cox following Cox’s

request of tapes of Oval Ofﬁ ce conversations, the

existence of which had been revealed by Nixon

presidential assistant Alexander Butterﬁ eld. Nix-

on’s attorney general, Elliot Richardson, and

deputy attorney general, William Ruckleshaus,

resigned rather than carry out that order. Bork,

as next in line promptly fired Cox. Public reac-

tion to the chain of events became popularized as

the “Saturday Night Massacre.” The subsequent

appointment of Leon Jaworski as another special

prosecutor ultimately led to public knowledge of

Nixon’s role in the Watergate cover-up when the

Supreme Court ordered the tapes to be reviewed.

Rather than confront impeachment proceedings

stemming from his role in the Watergate cover-up,

Nixon resigned the presidency thus averting a pos-

sible constitutional crisis.

Bork’s second foray into the public spotlight

involved his 1987 nomination to the Supreme

Court by President Ronald Reagan. Through-

out his career, Bork has remained critical of

the judicial activism practiced by the Supreme

Court in landmark cases involving abortion,

civil rights, and affirmative action. A

self-proclaimed strict constructionist in inter-

preting the Constitution, Bork remains critical

of judges applying broad interpretations of con-

stitutional intent and has vowed to exercise judi-

cial restraint and not be complicitous in Supreme

Court decisions that thwart the will of popu-

larly elected lawmakers. Bork believes judges

should not substitute their values for the original

intent of the framers of the Constitution.

Bork’s contrary public position in cases such as

RISWOLD V. CONNECTICUT, 318 U.S. 479 (1965),

which provided the constitutional foundation for

the right to privacy, and ROE V. WADE, 410 U.S.

113 (1973), which established a woman’s right

to an abortion, was characterized by Bork as “a

serious and wholly unjustiﬁ ed usurpation of state

legislative authority.” Bork also criticized the

public accommodation provision in the Civil

Rights Act of 1964 for being a violation of the

proprietor’s freedom of association, and its prin-

ciple, one of “unsurpassed ugliness.” Comments

like these ignited a ﬁ restorm of controversy at

his conﬁ rmation hearings and placed him at the

center of a jurisprudence maelstrom when he

appeared before the 14-member judiciary com-

mittee. Throughout his five days of testimony,

the longest conﬁ rmation hearing since hearings

began in 1939, Bork surprised everyone by pro-

viding testimony that revealed a moderation of

his controversial views.

However, despite Bork’s attempt at conciliatory

and nonideological testimony, his confirmation

hearings became so vituperative and vitriolic that

his ultimate defeat in the judiciary committee (9-

5) and a ﬂ oor vote in the Senate (58-42) has pos-

sibly forever scarred, politicized, and tainted the

advice-and-consent role of the Senate. The Bork

conﬁ rmation experience established a new verb,

bork, to describe the rough treatment of presiden-

tial nominees at congressional hearings.

Bork has had two major inﬂ uences on the Con-

stitution. In his articles and especially in his book

The Tempting of America, he has developed many

of the ideas of Herbert Wechsler and has argued

that the Court must use neutral principles as

a guide to interpreting the Constitution. Bork’s

arguments have taken him to arguing for a limited

Court role in resolving constitutional disputes if

it cannot apply neutral principles of law that were

given to it by Congress. Second, Bork’s writings

on antitrust law, such as The Antitrust Paradox

(1978), have been tremendously inﬂ uential. In that

book, he advocated that the Supreme Court adopt

a more economic approach to understanding and

interpreting antitrust law. To a large extent, the

Court has done that in part because of the argu-

ments made by Bork.

For more information: Vieira, Norman, and

Leonard Gross. Supreme Court Appointments

72 Bork, Robert H.

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and the Politicization of Senate Conﬁ rmations.

Carbondale: Southern Illinois University Press,

1998.

—William W. Riggs

Boumediene v. Bush, ___ U.S. ___ 128 S.Ct.

2229

(2008)

In Boumediene v. Bush, the Supreme Court issued

a 5-4 decision declaring that aliens detained as

enemy combatants at the U.S. Naval Station at

Guantánamo Bay, Cuba, could use habeas cor-

pus to challenge the legality of their detention.

Boumediene is an important decision because it

represents the ﬁ fth case the Bush administration

lost before the Supreme Court regarding presi-

dential authority to prosecute individuals involved

with terrorism and the events of 9/11.

As a result of terrorist attacks against the United

States on September 11, 2001, Congress autho-

rized the president to use all “necessary and appro-

priate force” against any persons, organizations,

and nations that aided or supported those acts of

terrorism. To ﬁ ght the “War on Terror” President

George W. Bush used this authorization to send

troops to Afghanistan against al-Qaeda and the

Taliban regime that had supported them. He also

used this authority and the power granted to him

under Article II of the U.S. Constitution

to create a detainment facility at the Naval Station

at Guantánamo Bay to incarcerate individuals who

were suspected of involvement in the events of 9/11

or other acts of terrorism. These individuals were

declared by the president as “enemy combatants,”

not entitled to protections under international law,

such as the Geneva Convention Relative to the

Treatment of Prisoners of War, and were ordered

held in conﬁ nement without habeas corpus pro-

tection. Habeas corpus refers to a right of individu-

als found in Article I, Section 9 of the Constitution

that allows persons to challenge in court their

detention, unless the right has been suspended by

Congress for reasons of rebellion, invasion, or pub-

lic safety. This section of the Constitution is often

referred to as the suspension clause.

Prior to Boumediene, several cases had tested

the scope of Bush’s presidential power to ﬁ ght ter-

rorism. In R

ASUL V. BUSH, 545 U.S. 466 (2004), the

U.S. Supreme Court ruled that aliens being held

in conﬁ nement at the U.S. military base at Guan-

tánamo Bay were entitled to have a federal court

hear challenges to their detention under the federal

habeas corpus statute. In Hamdan v. Rumsfeld, 548

U.S. ___, 126 S.Ct. 2749 (2006), the Supreme Court

ruled that a Yemeni national held at Guantánamo

Bay was entitled to habeas review of his detention

and trial before a special military commission.

As a result of Rasul and Hamdan, Congress

sought to limit the rights of detainees at Guantá-

namo Bay. First it adopted the Detainee Treat-

ment Act (DTA) of 2005, which sought to deny

habeas review to any alien detained at this facility.

In Hamdan, the Court declared this act inappli-

cable to cases pending when it was passed. Con-

gress then adopted the Military Commissions Act

(MCA) of 2006, which sought to preclude courts

from having habeas jurisdiction over detained

aliens determined to be enemy combatants.

Lakhdar Boumediene, an alien designated as an

enemy combatant detained at Guantánamo Bay,

challenged the law and his conﬁ nement by seek-

ing habeas review of his incarceration. The lower

courts ruled against Boumediene, holding that

they lacked jurisdiction as a result of the MCA.

The Supreme Court reversed the rulings.

In a 5-4 opinion written by Justice Anthony

M. Kennedy, the majority noted that neither

aliens nor individuals designated as enemy com-

batants were precluded by the suspension clause

from raising a habeas claim. Second, the Court

ruled that the clause was applicable to the facility

at Guantánamo Bay. Third, the provisions for trials

set up in the MCA were inadequate substitutes for

habeas review. Finally, the narrow exceptions that

past precedents had established for when habeas

review may be limited did not exist in this case.

The dissenters criticized the majority opin-

ion on several counts. First, they criticized them

for second guessing Congress and the president

regarding the adequacy of protections that ought

to be offered to enemy combatants. Second, it was

unclear if the provisions of MCA were insufﬁ cient,

because no one had tried to avail himself fully of

them. Finally, the majority failed to describe what

Boumediene v. Bush 73

xviii+446_EofUSConsti-v1.indd 73 3/12/09 3:03:58 PM

procedures had to be in place to comply with the

suspension clause requirements.

Boumediene v. Bush was considered a major

victory for individual rights and a blow to presi-

dential and congressional power. Many saw it as a

rejection of the way President Bush had conducted

the war on terrorism. The case is an important

statement about the scope of habeas rights for any

individuals detained by the government in facili-

ties located in areas under United States’ control.

For more information: Adler, David Gray, and

Robert George, eds. The Constitution and the

Conduct of American Foreign Policy. Lawrence:

University Press of Kansas, 1996; Fisher, Louis.

Presidential War Power. Lawrence: Univer-

sity Press of Kansas, 2004; Henkin, Louis. For-

eign Affairs and the United States Constitution.

Oxford: Clarendon Press, 1996; ———. Constitu-

tionalism, Democracy, and Foreign Affairs. New

York: Columbia University Press, 1990; Schultz,

David. “Democracy on Trial: Terrorism, Crime,

and National Security Policy in a Post 9-11 World,”

Golden Gate Law Review 38 (2008): 195–248.

—David Schultz

Bowers v. Hardwick 478 U.S. 186 (1986)

In Bowers v. Hardwick, the U.S. Supreme Court

ruled 5-4 that a Georgia statute that criminalized

consensual sodomy was constitutional. Michael

Hardwick, a homosexual man accused of consen-

sual sodomy, challenged the Georgia statute in

federal district court claiming that it violated his

fundamental rights because “his homosexual

activity is a private and intimate association that

is beyond the reach of state regulation.” The dis-

trict court granted the Georgia attorney general’s

motion to dismiss for failure to state a claim, and a

short time later, the U.S. Court of Appeals for the

Eleventh Circuit reversed and remanded, stating

that the statute violated certain rights guaranteed

under the Ninth Amendment and the due pro-

cess clause of the Fourteenth Amendment.

The issue the Supreme Court addressed was

framed by Justice Byron White, in his majority

opinion, as whether “the Federal Constitution

confers a fundamental right upon homosexuals

to engage in sodomy,” along with addressing the

Court’s reach or role in altering historically long-

standing state laws that criminalize such behav-

ior. Justice White answered this question in the

negative. First, the Court noted that prior cases

conferring rights within family relationships,

child rearing, procreation, and abortion had no

resemblance to the rights claimed by Hardwick, as

sodomy between two homosexual males was not

part of the traditional familial relationship. Sec-

ond, in granting certain substantive rights height-

ened judicial protection, the Court must show

that the right to engage in homosexual sodomy is

“deeply rooted in this Nation’s history and tradi-

tion” and that this right is “implicit in the concept

of ordered liberty,” which the Court found that it

did not (P

ALKO V. STATE OF CONNECTICUT [1937]).

This decision is no longer good law, however.

The Supreme Court in Lawrence et al. v. Texas

(2003), overturned the ruling in Bowers and

declared that making it a crime for two persons of

the same sex to engage in certain intimate sexual

conduct violated the due process clause of the

Fourteenth Amendment.

For more information: Pinello, Daniel R. Gay

Rights and American Law. New York: Cambridge

University Press, 2003; Richards, David A. J. The

Case for Gay Rights: From Bowers to Lawrence

and Beyond. Lawrence: University Press of Kan-

sas, 2005.

—Peter A. Collins

Bowsher v. Synar 478 U.S. 714 (1986)

The Supreme Court, in Bowsher v. Synar, ruled

that the provision in the Balanced Budget and

Emergency Deﬁ cit Control Act of 1985 (commonly

known as Gramm-Rudman-Hollings Act) that

gave authority to the U.S. Ofﬁ ce of the Comptrol-

ler General to order the president to cut funds from

the federal budget violated the separation of pow-

ers doctrine and was, therefore, unconstitutional.

The purpose of Gramm-Rudman-Hollings was

to eliminate the annual budget deﬁ cits that had

been increasing sharply since 1980 and to fore-

74 Bowers v. Hardwick

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stall the projected, steep increases of the next

10 years. The budget crisis came about with the

election of Ronald Reagan, who campaigned in

1980 promising to cut income-tax rates, increase

defense spending, and signiﬁ cantly reduce dis-

cretionary domestic spending. Reagan delivered

on two of his pledges, cutting taxes and increas-

ing defense spending; however, his reluctance to

call for drastic cuts in domestic spending, coupled

with a Congress more willing to spend than save,

caused the national debt (the accumulated annual

deﬁ cits) to more than double in four years.

Faced with two branches that appeared inca-

pable of willfully making the decisions necessary

to resolve the problem, Republican senators Phil

Gramm of Texas and Warren Rudman of New

Hampshire, with assistance from Democratic

senator Ernest (Fritz) Hollings of South Carolina,

proposed the act, which essentially took budget

decisions away from both branches and gave them

to the Comptroller General’s ofﬁ ce (CG).

The law established shrinking deﬁ cit targets for

each year from 1986 to 1991, at which point the

deﬁ cit would reach zero. If Congress and the presi-

dent were unable voluntarily to attain the targeted

figures, then automatic, across-the-board cuts

were to be imposed, with half made in the military

budget and the other half made equally across the

remaining budget categories. Exempted from any

reductions were Social Security, veterans, health,

and several antipoverty programs. There were also

provisions that protected the budget in case of

national emergency, economic recession, or war.

The automatic budget cuts were to occur each

year after the directors of the Ofﬁ ce of Management

and Budget (OMB), an executive agency, and the

Congressional Budget Ofﬁ ce (CBO) independently

estimated the size of the budget deﬁ cit. If the deﬁ cit

exceeded the target ﬁ gure, the directors indepen-

dently were to calculate, on a program-by-program

basis, the reductions needed to ensure the target

was met (Section 251). The directors’ reports were

then submitted to the CG for review. The comptrol-

ler general next sent his own recommendations to

the president (Section 251[b]). The president was

then to issue a sequestration order (in other words,

a mandatory spending reduction order) using the

CG’s figures (Section 252 [a][3]). Congress was

given some additional time to make spending cuts

of its choice to meet the target, but failing that, the

sequestration order was to take effect.

The law was immediately challenged by Ohio

representative Michael Synar, a Democrat, and

the case was ﬁ rst heard by a three-judge district

court appointed for the purpose. That court, in

Synar v. U.S. (626 F.Supp. 1374), ruled that the

deﬁ cit reduction process violated the separation

of powers because Congress had effectively legis-

lated itself a role in the implementation of the act

by placing authority to cut budgeted funds in the

hands of the comptroller general, an ofﬁ cer of the

Congress. The appeal was made in an expedited

process to the Supreme Court.

In writing for the majority, Chief Justice War-

ren Earl Burger drew heavily on the reason-

ing of the lower court. By assigning the authority

to the comptroller general to issue essentially

sequestration orders and thus carry out the provi-

sion of the act, Congress had violated the separa-

tion of powers doctrine. Central to the majority’s

decision was the relationship of the comptroller

general to the Congress.

As head of the Government Accountabil-

ity Office (then called the General Accounting

Ofﬁ ce), an agency Congress created to assist it in

overseeing the executive branch, the comptrol-

ler general is nominated by the president from a

list of three people recommended by the Speaker

of the House of Representatives and presi-

dent pro tempore of the Senate, is confirmed

by the Senate, but may be removed only at the

discretion of Congress by a joint resolution or by

impeachment. While a president could veto a

joint resolution, such a veto may be overridden

by Congress; therefore, the comptroller general is

not removable by the president alone. Congress,

declared the majority, may not “retain the power

of removal over an ofﬁ cer performing executive

functions” and cited the cases of M

YERS V. UNITED

TATES, 272 U.S. 52 (1926) and HUMPHREY’S EXECU-

TOR V. UNITED STATES, 295 U.S. 602 (1935):

By placing the responsibility for execution of

the Balanced Budget and Emergency Deficit

Bowsher v. Synar 75

xviii+446_EofUSConsti-v1.indd 75 3/12/09 3:03:59 PM

Control Act in the hands of an officer who is

subject to removal only by itself, Congress in

effect has retained control over the execution

of the Act and has intruded into the executive

function. The Constitution does not permit such

intrusion.

Justices John Paul Stevens and Thurgood Mar-

shall concurred with the majority, but instead

of basing their reasoning on which branch can

remove the comptroller general, they focused

on his “longstanding statutory responsibilities”

as an agent of Congress. The act empowered the

comptroller general, an agent of the legislature,

to make policy (decide budget cuts) without going

through the full legislative process. Such delega-

tion of power to the comptroller general violated

the separation of powers doctrine.

Dissenting in the case were Justices Byron

White and Harry Blackmun. White found the

removal of the comptroller general argument

“insignificant,” while Blackmun would have

restricted the Court’s ruling to the invalidation

only of those provisions of the act that concerned

the sequestration order.

Bowsher, Immigration and Naturalization Ser-

vice v. Chadha, 462 U.S. 919 (1983), and Clinton

v. New York, 524 U.S. 417 (1998), remain impor-

tant as cases that sustain the Supreme Court’s

interpretation of the separation of powers doc-

trine. Moreover, should questions be brought to

the Court about the constitutionality of presi-

dential signing statements, the justices are

likely to seek direction from these decisions.

For more information: Clayton, Cornell W.

“Separate Branches, Separate Politics: Judicial

Enforcement of Congressional Intent.” Political

Science Quarterly 109, no. 5 (1994): 843–872;

Shepsle, Kenneth A. “Representation and Gover-

nance: The Great Legislative Trade-Off.” Politi-

cal Science Quarterly 103, no. 3 (1988): 461–484;

West, William F., and Joseph Cooper. “Legislative

Inﬂ uence v. Presidential Dominance: Competing

Models of Bureaucratic Control.” Political Science

Quarterly 104, no. 4 (1989): 581–606.

—Thomas J. Baldino

Boy Scouts of America v. Dale 530 U.S.

640

(2000)

In its 5-4 decision in Boy Scouts v. Dale, the

Supreme Court reversed the lower New Jersey

court decision and held that the Boy Scouts of

America (BSA) was a private, not-for-proﬁ t orga-

nization, as well as an expressive organization,

protected under the First Amendment from

having to comply with state regulations concern-

ing antidiscrimination on the basis of sexual orien-

tation in public accommodations.

Earlier, in the New Jersey state court, the BSA

had been found to be a public accommodation

and hence within the purview of the regulations.

As such, it could not discriminate against James

Dale—an adult volunteer assistant scoutmaster

who had been in the BSA since 1978, had been

admitted to the Order of the Arrow and also

awarded the rank of eagle scout, and had earned

25 merit badges along the way—because he was

gay, as he had expressed on his college campus. At

the time his membership was revoked, however,

BSA had no publicly expressed standard speciﬁ -

cally regarding gay members.

The resolution of this case in the favor of the

BSA mirrors other rulings involving the BSA and

discrimination on the basis of sexual orientation or

atheism. These cases present a conﬂ ict between a

large, national organization that relies on public

support or government gratuities and makes use

of public accommodations, which are governed

by various nondiscrimination statutes, and the

organization’s claim nonetheless to be private and

values based in such a way that to require it to

adhere to these local statutes would compromise

its identity and infringe on its mission and ability

to interpret it.

The Court found that the BSA’s stated policy

and mission constituted it as an expressive asso-

ciation within the ambit of the First Amendment.

Here, both its freedom of speech and freedom of

religion rights were implicated, given the nature

of its mission, which included the BSA oath to be

“morally straight” and the BSA policy injunction

to be “clean,” interpreted here to exclude all gay

persons from any ﬁ eld position with the BSA as

“unﬁ t role models.” An internal policy memo clari-

76 Boy Scouts of America v. Dale

xviii+446_EofUSConsti-v1.indd 76 3/12/09 3:03:59 PM

fying the meaning of morally straight to exclude

gay persons had been only recently distributed to

a few within the BSA’s national leadership hier-

archy and not disseminated to any lower or ﬁ eld

levels prior to this case. Nonetheless, the Court

gave deference to the BSA’s assertions regard-

ing its expression of values and found that to be

required to retain Dale would burden the BSA’s

right to oppose or disfavor homosexual conduct as

a legitimate form of behavior. The forced inclusion

of Dale would probably significantly affect the

BSA’s ability to advocate public or private view-

points, and so the New Jersey antidiscrimination

statute had to give way to the right of expression as

protected under the First Amendment.

The dissent in Boy Scouts argued that the

BSA’s contentions regarding its goals and the

values it teaches warranted examination. In his

dissenting opinion Justice David H. Souter

expressed skepticism at BSA claims and expressed

concern that the right of expressive association not

become a convenient trump of antidiscrimination

law, itself a valuable state interest. Justice John

Paul Stevens’s dissent focused attention on the

BSA’s lack of any speciﬁ c language regarding the

terms morally straight and clean in reference to

sexual orientation, as well as the BSA injunction

against any discussion of sexual matters with a

boy scout, referring any inquiring boy scout to the

religious leader of his choice, who might well not

interpret those terms as in any way prejudicial to

gay persons.

The general issues raised by cases involving

the BSA have included whether the United Way

should donate money to it if it is a private organi-

zation, whether a city should make public school

facilities available to it as it can discriminate on

the basis of sexual orientation, whether it may

recruit members on public property given both

its status as private and its stated views and poli-

cies regarding homosexuality and atheism, and

whether public agencies governed by state and

federal antidiscrimination statutes should abro-

gate charters with the BSA.

For more information: Babst, Gordon A. Lib-

eral Constitutionalism, Marriage, and Sexual

Orientation. New York: Peter Lang Publishing,

2002; Pinello, Daniel R. Gay Rights and Ameri-

can Law. New York: Cambridge University Press,

2003; Richards, David A. J. The Case for Gay

Rights: From Bowers to Lawrence and Beyond.

Lawrence: University Press of Kansas, 2005.

—Gordon A. Babst

Bradwell v. State of Illinois 83 U.S. 130

(1872)

The Supreme Court held, in Bradwell v. Illinois,

that the state of Illinois could deny Myra Bradwell

a license to practice law because she was a mar-

ried woman without violating the privileges

and immunities clause of the Fourteenth

Amendment. The reasoning of this decision

was couched in historical notions regarding the

female sex, notions ultimately grounded in a reli-

gious perspective, the assumption of which would

Demonstrators protest outside the National Capi-

tal Area Council for the Boy Scouts of America,

August 21, 2000, in Bethesda, Maryland.

(Michael

Smith/Getty)

Bradwell v. State of Illinois 77

xviii+446_EofUSConsti-v1.indd 77 3/12/09 3:04:00 PM

trouble today’s jurists. Hence, what Bradwell is

most known for is its now iconic statement regard-

ing women and women’s role in society.

Bradwell, whose application to practice law in

the state of Illinois, where she had been resid-

ing for several years, was denied by that state’s

supreme court, appealed the decision to the

U.S. Supreme Court. Both courts relied on tra-

ditional views about women and legal practices

that reﬂ ected them. For example, it was submit-

ted that, as in the earlier era in which the law was

rooted, no one contemplated women’s employ-

ment outside the domestic sphere, so there was no

reason to suspect that, although never explicitly

stated, the law ever contemplated the inclusion of

women. In addition, it was believed that married

women who practiced law were limited in that

they would have difﬁ culty enforcing contracts for

their clients, as they were themselves limited in

their own ability to enter into binding contracts

separate from their husbands.

On behalf of Bradwell, it was argued that she

was fully qualiﬁ ed to practice law, a point that was

never in doubt regarding her professional train-

ing, extensive legal experience in her native state

of Vermont, and success as a legal scholar. It was

further argued that the Fourteenth Amendment

applies to each state and so protected a member

of a class of citizens when she emigrates from one

state to another within the Union and so, too, the

privileges and immunities she enjoyed in her for-

mer state of residence. The issue before the Court

became whether admission to the bar in one state

constituted a class of privileges that a state may

not abridge or whether it belongs to a class of

political rights in which the state may discrimi-

nate between citizens.

The Court answered the question of whether

Bradwell had an enforceable right to employ-

ment by practicing at the bar of a judicial court in

the negative, stating that this right is in no sense

dependent on national citizenship and is not an

avocation open to all citizens as a matter of right.

The Court held that the privileges and immuni-

ties enjoyed by citizens in their state of residence

applied only there and may not pertain to other

states. The Court, then, gave this clause a nar-

row reading, one that was being explicated in

the Slaughterhouse Cases, and rejected the anal-

ogy urged on it between discrimination against

a class of people because of race and because of

sex. Women, presumably regardless of their race,

stood in a different relation to the law than did

men, against whom it would be unlawful to dis-

criminate on the basis of race.

The opinion of Justice Joseph P. Bradley was

especially pointed as regards women’s place in

society “from time immemorial” and the ultimate

source of that wisdom, before which the civil law

must bend. He stated that the “paramount des-

tiny and mission of woman are to fulﬁ ll the noble

and benign ofﬁ ces of wife and mother” and that

this is “the law of the Creator” to which “humane

movements of modern society” as regards women’s

advancement must be adapted. Furthermore, he

opined that it is the police power of the state to

comprehend the law of nature in order to ordain

which honorable professions and ofﬁ ces women

may be permitted entry as a matter of right and

which are reserved for men.

For more information: Friedman, Jane M.

America’s First Woman Lawyer: The Biography

of Myra Bradwell. Buffalo, N.Y.: Prometheus

Books, 1993; Mezey, Susan Gluck. Elusive Equal-

ity: Women’s Rights, Public Policy, and the Law.

Boulder, Colo.: Lynne Rienner Publishers, 2003.

—Gordon A. Babst

Brandeis brief

When first presented in 1908, the Brandeis

brief was a revolutionary approach to elaborat-

ing legally before the U.S. Supreme Court. It is

named for Louis D. Brandeis (1856–1941), who

argued before the Court against the removal of

labor restrictions related to the number of hours a

woman could work in the state of Oregon.

The seminal report for Muller v. Oregon, 208

U.S. 412 (1908), incorporated economic, statis-

tical, and psychosocial data, within the disci-

plines of sociology and psychology. The reliance

on factual data allowed Brandeis to successfully

make his point that the restriction of hours upon

78 Brandeis brief

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female workers was both reasonable and within

the underpinnings of the protections covered

by the Constitution. His brief pursuant to this

arguing before the Court resulted in a new man-

ner of argument based upon data, not just legal

thought.

Brandeis had a history of defending the pub-

lic welfare and was hired in 1907 to represent the

state of Oregon in a case before the U.S. Supreme

Court that involved the constitutionality of limit-

ing hours for female laundry workers. This effort

by Brandeis to argue before the high court a

cause championed by the Progressive movement

resulted in a legal brief that retained the typi-

cal identity of a brief on the ﬁ rst two pages and

then moved into more than 100 pages of data. At

the time, the political climate had begun to turn

against industrialists, and the regulation of indus-

tries began to be battled out in the courts. When

the state of Oregon established a 10-hour workday,

businesses challenged the law.

The Progressive movement was meanwhile

picking battles across the United States to push

its agenda, and Oregon was ripe for change. The

Progressives claimed that businesses had long

been operating in manners that furthered the

exploitation of women, children, and the envi-

ronment. Brandeis believed that private property

rights of employers were subject to regulation by

the government, and, thus, he acted as counsel

and argued cases where he believed the courts

did have a place in afﬁ rming the power of Con-

gress to regulate industry through the acknowl-

edgment of the need to manage the health and

welfare of the populace. His lasting legacies were

both the style of brief he created in Muller and

its melding of facts with jurisprudence precedent

to answer a previously unanswered challenge

by the Supreme Court in the 1905 L

OCHNER V.

EW YORK case. In a ﬁ rst, Justice David Josiah

Brewer acknowledged the brief, which was the

highest of compliments, but also admitted that

he agreed with the approach that women were

in fact different from men and consequently

needed labor protections. As the Fourteenth

Amendment was not absolute, Brewer stated,

the government retained a compelling right to

limit the citizen’s power of contract for his or

her and others’ beneﬁ t.

For more information: Strum, Philippa. Louis

D. Brandeis: Justice for the People. Cambridge,

Mass.: Harvard University Press, 1984.

—Ernest Gomez

Brandenburg v. Ohio 395 U.S. 444 (1969)

In Brandenburg v. Ohio, the U.S. Supreme Court

defined the modern standard for when speech

that may incite illegal action is protected by the

First Amendment and when such speech goes

too far and may be punished. The Court ruled

that speech advocating illegal action may be pun-

ished only if it is “directed to inciting or producing

imminent lawless action and is likely to incite or

produce such action.”

The decision was a monumental one in free

speech law. It moved the Court away from the

decades-old clear and present danger test

ﬁ r s t d e v e l o p e d i n S

CHENK V. UNITED STATES, 249

U.S. 47 (1919). That test, developed by Justice

Oliver Wendell Holmes, Jr., had launched

a 50-year struggle in the Court to try to define

when words create a “clear and present danger” of

unlawful action that Congress thus has a right to

prohibit. Critics said this standard restricted far

too much speech that posed no real threat and

punished dissent because it was effective.

In Brandenburg, the Court moved to a standard

that was much more protective of free speech. The

test requires both an intent by the speaker to pro-

voke illegal action immediately and circumstances

in which such action is likely to occur.

The case involved a Ku Klux Klan rally in

Ohio. Clarence Brandenburg was a Klan leader

who was convicted under Ohio law for advocating

violence for political change; he was sentenced to

one to 10 years in prison and $1,000 ﬁ ne. Accord-

ing to evidence at his trial, Brandenburg called a

local television reporter who arrived with a cam-

eraman and recorded the rally. In a speech at the

rally, Brandenburg warned that if the federal gov-

ernment did not stop acting against white Ameri-

cans, “there might have to be some revengeance

Brandenburg v. Ohio 79

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[sic] taken.” He challenged his conviction as vio-

lating the First Amendment as applied to the

states through the Fourteenth Amendment,

but the Ohio courts rejected the constitutional

arguments.

The Supreme Court reversed the ruling of the

Ohio courts and also overruled an earlier decision,

HITNEY V. CALIFORNIA, 274 U.S. 357 (1927), which

had upheld a California law similar to Ohio’s. The

Court said the Ohio law punished simple advocacy

and did not require any evidence of imminent law-

less action. As a result, the Court said the Ohio

statute was unconstitutional.

The Court ruled in an unsigned opinion labeled

per curiam, meaning “for the court.” Researchers

have determined that the opinion was started by

Justice Abe Fortas, but when he resigned from the

Court in a scandal in May 1969, Justice William

J. Brennan, Jr., completed the decision.

Justice William O. Douglas wrote a concur-

ring opinion, as did Justice Hugo Black. Since

the Supreme Court did not expressly overrule the

clear and present danger test but rather simply did

not mention it, the two justices wrote to make sure

the Court was no longer relying on the old test,

which they believed did not properly reﬂ ect the

values of the First Amendment. Douglas wrote: “I

see no place in the regime of the First Amend-

ment for any ‘clear and present danger’ test.”

For more information: Linde, Hans A. “Clear

and Present Danger Reexamined: Dissonance

in the Brandenburg Concerto.” Stanford Law

Review 22 (1970): 1,163; Smolla, Rodney A.

Smolla & Nimmer on Freedom of Speech. New

York: Clark Boardman Callaghan, 1996; Wirenius,

John F. “The Road to Brandenburg: A Look at the

Evolving Understanding of the First Amendment.”

Drake Law Review 43 (1994): 1.

—Stephen Wermiel

Branzburg v. Hayes 408 U.S. 665 (1972)

In Branzburg v. Hayes, the U.S. Supreme Court

ruled that the First Amendment guarantees of

freedom of speech and freedom of the press

do not shield journalists from the legal obligation

to testify before grand juries about their conﬁ den-

tial sources or other information.

In a 5-4 decision, written by Justice Byron R.

White, the Court said that when a law is generally

applicable (that is, it applies in the same manner to

everyone), the First Amendment does not require

that an exception be made to protect journalists.

In this case, the generally applicable legal prin-

ciple is that everyone has the same legal obliga-

tion to comply with subpoenas to appear before a

grand jury or to testify at a trial.

The ruling was intended to settle an important

legal question, yet the issue has remained the focus

of controversy and debate for numerous reasons.

First, lawyers representing news organizations

have successfully taken advantage of ambiguity in

the Branzburg ruling. Second, state legislatures

have created various forms of privilege for jour-

nalists and their sources. Third, there have been

periodic high-proﬁ le cases in which reporters have

gone to jail rather than reveal their sources, call-

ing dramatic attention to the question of whether

lawyers can protect their conﬁ dential providers of

information.

The Branzburg ruling was actually four con-

solidated cases. Paul Branzburg, a Louisville

Courier-Journal reporter, was called to testify

before a grand jury after he wrote a story in 1969

about two local hashish makers whose identity he

had promised not to reveal. He also was called

to testify before a second grand jury based on

a 1971 story about drug use in Frankfort, Ken-

tucky, in which he did not identify the names of

users. The Kentucky courts ordered him to tes-

tify and rejected his claims of a First Amendment

privilege.

A third case involved Paul Pappas, a reporter-

photographer for a New Bedford, Massachusetts,

television station who in 1970 spent several hours

inside a Black Panther headquarters that was bar-

ricaded to protect against a rumored police raid

that never materialized. Pappas refused to tell

a grand jury about what he had observed and

recorded, and the Massachusetts courts ruled

against his claims of privilege.

The fourth case centered on New York Times

reporter Earl Caldwell who was subpoenaed to tell

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a grand jury what he had learned from interviews

with leaders of the Black Panther Party. A federal

judge found that Caldwell had a First Amendment

privilege to protect confidential informants but

had to testify about anything he was told for pur-

poses of publication. When the grand jury expired,

the process was repeated with a new grand jury

and judge. When Caldwell did not appear, he was

held in contempt. But the U.S. Court of Appeals

for the Ninth Circuit reversed and said Caldwell

had a right not to appear before the grand jury

because testifying would interfere with the ﬂ ow of

news to the public.

The U.S. Supreme Court ruled against all of the

journalists. “It is clear that the First Amendment

does not invalidate every incidental burdening of

the press that may result from the enforcement of

civil or criminal statutes of general applicability,”

Justice White wrote. Although White was clear in

his decision, Justice Lewis Franklin Powell,

Jr., wrote a concurrence that seemed to create

some ambiguity. “The asserted claim to privilege,”

Powell wrote, “should be judged on its facts by the

striking of a proper balance between freedom of

the press and the obligation of all citizens to give

relevant testimony with respect to criminal con-

duct.” When compared to the dissent of Justice

Potter Stewart, supported by Justices William J.

Brennan, Jr., and Thurgood Marshall, and that

of William O. Douglas, Powell’s words left

the impression that five justices favored a First

Amendment privilege under some circumstances.

Urged on by news media lawyers, numerous fed-

eral appeals courts agreed in the decades that

followed.

Also in the years that followed, many states

passed shield laws, recognizing some degree of

privilege for reporters to protect confidential

sources. In others, state supreme courts found the

privilege to exist in state law or state constitutions.

Some offer an absolute privilege; others attach

qualiﬁ cations. Only the U.S. Congress and Wyo-

ming have refrained from recognizing a reporter’s

privilege.

High-profile jailings of journalists have also

kept the issue in focus. In 2005, New York Times

reporter Judith Miller refused to identify a source

in the case involving the disclosure of covert CIA

agent Valerie Plame’s identity. Miller spent almost

three months in jail before saying her conﬁ dential

source had given her permission to reveal his iden-

tity. A freelance blogger and journalist spent seven

months in prison in 2006 and 2007 for refusing to

turn over to police video outtakes of a San Fran-

cisco protest in 2005 during an economic summit.

In 1978, New York Times reporter Myron Farber

spent more than a month in jail for refusing to

turn over notes and interviews in a high-proﬁ le

New Jersey murder case.

For more information: Dienes, C. Thomas, Lee

Levine, and Robert C. Lind. “Newsgathering and

the Law Section 14-1–Section 14-6, 720–765.”

Charlottesville, Va.: Lexis Law Publishing, 1999;

Smolla, Rodney A. Smolla & Nimmer on Freedom

of Speech. New York: Clark Boardman Callaghan,

1996.

—Stephen Wermiel

Bray v. Alexandria Women’s Health Clinic

506 U.S. 263 (1993)

In Bray v. Alexandria Women’s Health Clinic, the

Supreme Court held that anti-abortion rights

protesters could not be sued as a private conspir-

acy to deny women their constitutional rights.

As a result of controversy stemming from the

decision in R

OE V. WADE, 410 U.S. 113 (1973),

which had legalized abortion across the country,

individuals and organizations who opposed abor-

tion rights protested outside abortion clinics. The

protesters occasionally trespassed on the clinics’

property, obstructed access to the clinics, and, in

some instances, even took violent action against

the clinics, doctors, and women seeking abor-

tions. Several abortion clinics brought suit against

the protesters, arguing that the protesters were

engaged in a private conspiracy to deprive women

seeking abortions of their constitutional right to

interstate travel.

The Supreme Court held, in an opinion by

Justice Antonin Gregory Scalia, that the

abortion clinics could not bring suit against the

protesters because the federal statute under

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