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evidence and the acquittal of persons who are fac-

tually (if not legally) guilty. Proponents of the rule

argue it is the only effective means of protecting

individuals from illegal police searches, while crit-

ics decry the fact that application of the rule leads

to the exclusion from trial of relevant evidence,

making it harder to convict criminal defendants

(Hemmens et al., 2004). Supreme Court decisions

over the years have limited the scope of the rule,

and created several exceptions.

Perhaps the most well known exception is the

good faith exception, created by the Supreme

Court in Massachusetts v. Sheppard, 468 U.S. 981

(1984). In this case, the Court held that evidence

obtained by police ofﬁ cers acting in good faith on

a search warrant issued by a neutral and detached

magistrate that is ultimately found to be invalid

may nonetheless be admitted at trial. The Court

stressed that the primary rationale for the exclu-

sionary rule—deterrence of police misconduct—

did not warrant exclusion of evidence obtained by

police who act reasonably and in good faith reli-

ance upon the actions of a judge. By “good faith”

the Court meant the police were unaware that the

warrant was invalid.

The Court emphasized that the good faith

exception did not apply to errors made by the

police, even if the errors were entirely inadver-

tent. The exception applies only to situations

where the police relied on others who, it later

turns out, made a mistake. Subsequent cases reit-

erated this point. In Illinois v. Krull, 480 U.S. 340

(1987), the Court extended the good faith excep-

tion to instances where the police act in reliance

on a statute that is later declared unconstitutional.

In Arizona v. Evans, 514 U.S. 1 (1995), the Court

refused to apply the exclusionary rule to evidence

seized by a police ofﬁ cer who acted in reliance on

a computer entry made by a court clerk, which

was later found to be in error.

The exclusionary rule has aroused much debate

since its application to the states some 40 years

ago. The rule remains in place, although its appli-

cation has been limited to exceptions created by

the Supreme Court. Nonetheless, the rule still

has a major and continuing impact on police prac-

tices, acting as the primary constraint on unlawful

searches and seizures. So long as the exclusionary

rule exists, it will serve, to some extent, as a limita-

tion on police overreaching. It will also continue

to result in the freeing of some guilty people. It

is both the reward and the price we pay for living

under a government of limited powers.

For more information: Carmen, Rolando del.

Criminal Procedure: Law and Practice. 7th ed.

Belmont, Calif.: Wadsworth/Thomson, 2006;

Hemmens, Craig, John Worrall, and Alan Thomp-

son. Criminal Justice Case Briefs: Significant

Cases in Criminal Procedure. Los Angeles: Rox-

bury, 2004.

—Craig Hemmens

Good News Club v. Milford Central School

533 U.S. 98 (2001)

In Good News Club v. Milford Central School,

the Supreme Court held that when a government

agency opens its property to the public for First

Amendment purposes, the free speech clause

prevents the school from excluding groups on the

basis of their viewpoint—including their religious

viewpoint. In other words, religious organizations

should be treated neutrally and given access to

school grounds on the same basis as other groups.

This case upheld the principle established in

AMB’S CHAPEL V. CENTER MORICHES UNION FREE

CHOOL DISTRICT, 508 U.S. 384 (1993).

Milford Central School established a policy

authorizing residents of the school district to use

its building after school for instruction in education

or the arts, as well as for social, civic, recreational,

and entertainment purposes. In accordance with

the school’s policy, the Good News Club, a private

Christian organization for children, requested

permission to hold its weekly meetings on school

grounds. The school denied the request because

the club’s proposed uses, such as singing religious

songs, presenting Bible lessons, memorizing scrip-

tures, and praying, amounted to religious worship

and were prohibited by the community use policy.

The club challenged the school’s decision, arguing

that the denial of the club’s application violated its

free speech rights.

322 Good News Club v. Milford Central School

xviii+446_EofUSConsti-v1.indd 322 3/12/09 3:05:19 PM

The Supreme Court held that the school vio-

lated the club’s free speech rights by prohibiting it

from meeting on school grounds. In his opinion for

the Court, Justice Clarence Thomas explained

that Milford Central School operated a “limited

public forum.” Although a government that

operates a limited public forum is not required to

allow persons to engage in every type of speech,

the power to restrict speech is qualiﬁ ed. Speech

restrictions must not discriminate against speech

based on viewpoint and must be reasonable in

light of the forum’s purpose. The school’s policy

discriminated against the Good News Club on the

basis of its religious viewpoint, and there was, in

the Court’s view, no logical difference between

the Good News Club’s invocation of Christianity

and the invocation of teamwork, loyalty, or patrio-

tism by other associations to provide a foundation

for their lessons.

The Court also held that permitting the club

to meet on the school’s premises would not vio-

late the establishment clause of the First

Amendment. The club’s meetings would be held

after school hours, would not be sponsored by the

school, and would remain open to any student who

obtained parental consent. Moreover, the school

made its forum available to other organizations.

The Court rejected the school’s argument that

elementary school children would perceive that

the school was endorsing the club’s Christian mes-

sage and would feel coerced to participate in its

activities.

Justice David H. Souter dissented, in an

opinion joined by Justices John Paul Stevens

and Ruth Bader Ginsburg, arguing that the

Court’s opinion is ridiculous and “ignores real-

ity.” If the Court is serious in its decision, Jus-

tice Souter thought, the holding amounts to the

“remarkable proposition” that any public school

opened for civic meetings must be opened for use

as a church, synagogue, or mosque.

For more information: Hitchcock, James. The

Supreme Court and Religion in American Life.

Vol. 1, The Odyssey of the Religion Clauses. Princ-

eton, N.J.: Princeton University Press, 2004.

—Winston E. Calvert

Gramm-Rudman-Hollings Act

The Gramm-Rudman-Hollings Act (GRH), also

known as the Balanced Budget and Emergency

Deﬁ cit Control Act of 1985, attempted to legislate

a balanced federal budget by 1991. It reﬂ ected a

conservative political movement that strongly

opposed increased government spending. GRH

was declared unconstitutional as a violation of

separation of powers in B

OWSHER V. SYNAR, 478

U.S. 714 (1986).

By 1985, budget deficits had created a panic

among lawmakers who feared an impending eco-

nomic collapse for the United States. President

Ronald Reagan accused the Democratic-led Con-

gress of being unable to rein spending. Congres-

sional Democrats blamed the ballooning deﬁ cit

on Reagan’s tax cut in 1981 that lowered taxes for

those in the highest tax brackets in an attempt to

produce a trickle-down effect in the economy.

Reagan’s defense buildup was also faulted for run-

ning up huge bills.

Senator Phil Gramm, a Republican from Texas,

a former economics professor at Texas A&M Uni-

versity who had once listed his research project as

getting rid of government, had sought a balanced

budget since arriving in Congress in 1979. In

August 1985, Gramm proposed tacking a manda-

tory deﬁ cit reduction plan onto a debt-ceiling bill.

He recruited Warren Rudman (Republican from

New Hampshire) and Ernest Hollings (Democrat

from South Carolina) as cosponsors. Democrats

supported the bill because Reagan would have to

scale back defense spending if he wanted a bal-

anced budget. Reagan Republicans backed the bill

because they thought that Democrats would be

forced to cut social spending. Traditional Republi-

cans voted for GRH because of a belief that Rea-

gan might have to modify his refusal to raise taxes

to achieve a balanced budget. With all parties on

board, GRH passed.

GRH required automatic spending cuts divided

equally between defense and nondefense spending

should the president and Congress prove unable

to agree upon a budget. Social Security expendi-

tures, interest on the national debt, and some pro-

grams targeted at the poor were exempt from the

automatic cuts. GRH set a timetable of reduced

Gramm-Rudman-Hollings Act 323

xviii+446_EofUSConsti-v1.indd 323 3/12/09 3:05:19 PM

budget deﬁ cits beginning in 1985 and ending in

1991. It contained a clause that suspended action

in the event of a recession, resuming spending

cuts in the ﬁ rst year of recovery.

Events during the passage of GRH spelled

problems for the future of the reform. The law

made no distinction between useful and essential

government actions and pork-barrel expenditures.

Congress protected favored programs, and, due to

constitutional problems, the institutional means

for enforcing the automatic cuts was weak. In

1986, the Supreme Court ruled that the automatic

cuts were unconstitutional. GRH did not have the

power to make these cuts since the ofﬁ ce of Comp-

troller of the Currency remained vested with this

authority. The 1987 revision of GRH transferred

that authority to the president. With the revision,

Congress also moved the target date for a bal-

anced budget to 1993. However, the Omnibus

Budget Reconciliation Act of 1990 repealed GRH.

At this time, the Council of Economic Advisers

asserted that GRH had helped reduce the deﬁ cit

by limiting its growth. Others, including Rudman,

categorized GRH as simply a bad law.

For more information: Schier, Steven E. A

Decade of Deﬁ cits: Congressional Thought and

Fiscal Action. Albany: State University of New

York Press, 1992.

—Caryn E. Neumann

Granholm v. Heald 544 U.S. 60 (2005)

In Granholm v. Heald and its companion case,

Swedenburg v. Kelly, 544 U.S. 60 (2005), the

Supreme Court invalidated state liquor laws regu-

lating direct wine shipments by out-of-state win-

eries to in-state customers as a violation of the

commerce clause.

In Granholm, the federal district court upheld

a Michigan statute permitting in-state direct ship-

ment by wineries, but requiring out-of-state winer-

ies to use state-licensed wholesalers and retailers.

The Sixth Circuit reversed, because this discrimi-

natory treatment violated the commerce clause. In

Swedenburg, out-of-state wineries challenged a

New York statute permitting them to make direct

wine shipments, but imposing on them an unequal

ﬁ nancial burden. The federal district court granted

the wineries summary judgment, but the Second

Circuit reversed, because the statute was a valid

exercise of the state’s Twenty-first Amend-

ment authority.

Justice Anthony M. Kennedy’s opinion for

the Court was structured by the commerce clause,

which created a national common market and per-

mitted state laws to discriminate against trade in

that market only in the narrowest circumstances.

The Michigan and New York laws violated the

commerce clause by permitting direct shipment

by in-state wineries, but forbidding or discour-

aging direct shipment by out-of-state wineries.

State laws which violate the commerce clause can

be saved by the Twenty-ﬁ rst Amendment only if

they use non-discriminatory means to advance a

legitimate government purpose. Justice Kennedy

acknowledged that Michigan and New York had

a legitimate Twenty-ﬁ rst Amendment interest in

protecting minors and collecting taxes. The states

had, however, provided little evidence for their

claim that these laws were necessary because

minors used the Internet to purchase out-of-state

wines and out-of-state wineries failed to pay state

liquor taxes. The states could, therefore, achieve

their legitimate purposes only with evenhanded

laws either permitting direct shipment on equal

terms or prohibiting all direct shipment.

Justice John Paul Stevens, joined by Jus-

tice Sandra Day O’Connor in a brief dissent,

argued that the Twenty-first Amendment had

placed liquor in a special category, because it was

a moral evil. The majority’s decision, he argued,

had displaced the policy choice made by the fram-

ers of the amendment and had treated “alcohol as

an ordinary article of commerce, subject to sub-

stantially the same market and legal controls as

other consumer products.”

Justice Clarence Thomas, joined by Chief

Justice William Hubbs Rehnquist and Justices

Stevens and O’Connor, issued a lengthy dissent

which argued that the majority opinion contained

three faults. First, it misinterpreted the Webb-Ken-

yon Act (1913) and the Twenty-ﬁ rst Amendment,

which authorize states to discriminate in favor of

324 Granholm v. Heald

xviii+446_EofUSConsti-v1.indd 324 3/12/09 3:05:19 PM

in-state direct liquor shipments. Second, it was at

odds with the Court’s early Twenty-ﬁ rst Amend-

ment jurisprudence allowing discrimination against

out-of-state liquor producers. Third, it misrepre-

sented the Court’s recent Twenty-ﬁ rst Amendment

jurisprudence and relied upon Bacchus Imports v.

Diaz (1986), which should be overruled, because

it stood alone as the Court’s only decision holding

that the amendment does not authorize discrimina-

tion against out-of-state liquor.

Granholm v. Heald altered the constitutional

regime for alcoholic beverage control. States

were not permitted to interpret their Twenty-ﬁ rst

Amendment authority so broadly as to provide

their wineries with a competitive advantage by

discriminating against the direct shipment of wine

in the interstate marketplace.

For more information: Millis, Matthew B.

“Let History Be Our Guide: Using Historical

Analogies to Analyze State Response to a Post-

Granholm Era.” Indiana Law Journal 81 (2006):

1,097–1,123.

—William Crawford Green

Gratz v. Bollinger 539 U.S. 244, 123 S.Ct.

2411

(2003)

In Gratz v. Bollinger, the Supreme Court struck

down the undergraduate admissions policy used by

the University of Michigan’s College of Literature,

Science, and the Arts. The policy admitted pro-

spective students based on a comprehensive 150

point system. African-American, Hispanic, and

Native American candidates were automatically

granted 20 of the 100 points necessary for guar-

anteed admission. This point allotment made it so

that virtually every student belonging to one of the

favored minority groups was granted admission.

Two white students who were denied admission

brought this suit against the university’s president,

alleging that the admissions policy violated the

equal protection clause of the Fourteenth

Amendment, Title VI of the Civil Rights Act

of 1964, and 42 U.S.C. Section 1981.

Chief Justice William Hubbs Rehnquist

delivered the opinion of the Court, joined by

Justices Sandra Day O’Connor, Antonin

Gregory Scalia, Anthony M. Kennedy, and

Clarence Thomas. In its decision, the Court

relied heavily on R

EGENTS OF THE UNIVERSITY OF

ALIFORNIA V. BAKKE, 438 U.S. 265 (1978), and

RUTTER V. BOLLINGER, 539 U.S. 306 (2003), the

companion case to Gratz decided the same day.

The Court struck down the policy as a violation of

the equal protection clause and, necessarily, as a

violation of 42 U.S.C. Section 1981.

In order to be constitutional, a race classiﬁ ca-

tion must be narrowly tailored to achieve a com-

pelling state interest. The Court ruled that the

automatic point allotment was not narrowly tai-

lored because there was no process for individu-

alized review of each applicant’s credentials. In

this manner, the policy was more like the quota

system described in Bakke than the nonnumerical

weighting system used by the University of Michi-

gan Law School in Grutter.

The university offered two main arguments in

support of its position. First, it argued that there

was a policy in place by which applicants with

characteristics deemed important to the compo-

sition of the freshman class were separated and

ﬂ agged for review without regard to the point sys-

tem. The Court noted, however, that this process

was rarely used and only served to undermine the

system as a whole, since the university deemed

race to be an important characteristic, but it did

not ﬂ ag every application from a student of a pre-

ferred minority group for further review.

The university also argued that individual

review of each application was not feasible given

the vast number of applications received each year.

The Court responded by arguing that administra-

tive challenges do not make an otherwise ﬂ awed

system constitutional. After all, as the Court noted

in Grutter, the law school individually reviews

over 3,500 applications for its incoming class of

approximately 350 students, a ratio of 10 applica-

tions for each available spot.

After 25 years, the confusion caused by the

plurality decision in Bakke was put to the test

and clariﬁ ed by a majority of the Court in both

Grutter and Gratz. However, given the variety of

programs aimed at correcting racial injustice in

Gratz v. Bollinger 325

xviii+446_EofUSConsti-v1.indd 325 3/12/09 3:05:20 PM

education, it is unlikely this issue is permanently

settled.

For more information: Greene, Linda S. “The

Constitution and Racial Equality After Gratz and

Grutter.” Washburn Law Journal 43 (Winter

2004): 253–283.

—Dylan R. Kytola

Gravel v. United States 408 U.S. 606 (1972)

In Gravel v. United States, the Supreme Court, in

a 5-4 vote with William J. Brennan, Jr.; Wil-

liam O. Douglas; Thurgood Marshall; and Pot-

ter Stewart dissenting, held that the speech and

debate clause privilege of the Constitution applies

to congressmen and their aides in the performance

of their duties but does not extend beyond that.

The Constitution authorizes the Senate and

the House of Representatives to discipline

its members. However, Article 1, Section 6 of the

Constitution, referred to as the speech and debate

clause, also provides safeguards for its members

against harassment and intimidation. This privi-

lege of membership has its roots in British practice.

The English Parliament in its historical struggles

with the British Crown asserted that its members

were immune from arrest during its sessions, and

the English Bill of Rights of 1689 embod-

ies this guarantee. In the American Constitution,

without the protection of the speech and debate

clause, a U.S. president could order the arrest or

otherwise intimidate members of Congress who

are in opposition to administration goals and

policies. The speech and debate clause provision

ensures the integrity of the legislative process

through the independence of the individual legis-

lators during the performance of their legislative

duties and serves to reinforce the separation of

powers among the government’s three branches.

Interpretation of the language of Article 1,

Section 6 has generally centered on a deﬁ nition of

what is legitimate legislative activity and generated

two kinds of constitutional questions: what is pro-

tected and who is protected within the speech and

debate clause? Gravel v. United States addressed

both what and who was to be protected.

On June 29, 1971, Senator Mike Gravel, Demo-

crat from Alaska, held a public meeting of the Sub-

committee on Buildings and Grounds of which he

was the chair. Before the hearing began, Gravel

made a statement regarding the Vietnam War

and then read portions of a classiﬁ ed government

document entitled History of the United States

Decision-Making Process on Vietnam Policy, now

known as the Pentagon Papers, which provided

details of U.S. involvement in the war. Senator

Gravel proceeded to introduce the document into

the committee’s record and arranged for possible

republication of the document. There were also

media reports that a member of Gravel’s staff, Dr.

Leonard Rodberg, had spoken with a second pub-

lisher regarding possible republication of the clas-

siﬁ ed documents. A grand jury was convened to

investigate whether or not any criminal violations

had occurred concerning the handling of classiﬁ ed

materials. Dr. Rodberg was subpoenaed to testify.

Senator Gravel moved to quash the subpoena as a

violation of the speech and debate clause, because

ordering the aide to testify was tantamount to hav-

ing the senator testify, which according to Sena-

tor Gravel would violate the speech and debate

clause.

The district court denied the motion by Sena-

tor Gravel but limited the questioning of Senator

Gravel’s aide. The court of appeals afﬁ rmed the

motion’s denial but modiﬁ ed the protective order

in ruling that congressional aides and other per-

sons may not be questioned regarding legislative

acts and that limiting the questioning was within

the scope of the congressional privilege intended

by the speech and debate clause, thereby foreclos-

ing further inquiry by the grand jury. The gov-

ernment petitioned for certiorari to the Supreme

Court, challenging the ruling of the court of

appeals.

The Supreme Court answered the question of

what is protected by the speech and debate clause

by upholding the right of a grand jury to inquire

into the circumstances under which a member

obtained classified government documents and

arranged for their private republication. The

Court reasoned that the speech and debate clause

recognizes speech, voting, and other legislative

326 Gravel v. United States

xviii+446_EofUSConsti-v1.indd 326 3/12/09 3:05:20 PM

acts to be immune from liability; however, the

speech and debate clause does not extend to either

senator or aide immunity to violate an otherwise

valid criminal law in preparing or implementing

legislative acts.

The Supreme Court’s decision in the Gravel

case not only answered what was protected under

the speech and debate clause but also explicitly

answered who was protected under the speech and

debate clause by fully bringing congressional staff

as well as congressional members under the speech

and debate clause’s protection. In recognizing the

expanding role of staff, the Court acknowledged

that the rapidly changing technology necessary in

the performance of legislative duties makes the

day-to-day work of congressional aides equivalent

to being an alter ego of the congressional member.

Not to recognize congressional staff accordingly

would signiﬁ cantly diminish the intended effect

of the speech and debate clause.

Gravel illustrated that legislative acts are not

all-encompassing. The heart of the speech and

debate clause is speech or debate in either House.

In this case, the private publication arrangements

by Senator Gravel were not part and parcel of the

legislative process.

For more information: Kalven, Harvey. A Wor-

thy Tradition: Freedom of Speech in America.

New York: Harper & Row, 1988.

—William W. Riggs

Green v. County School Board of New

Kent County, Virginia

391 U.S. 430 (1968)

In Green v. County School Board of New Kent

County, Virginia, the U.S. Supreme Court dis-

played its frustration with the slow pace of school

desegregation in the 14 years after B

ROWN V.

OARD OF EDUCATION, 347 U.S. 483 (1954), and

ordered school systems to make progress “that

promises realistically to work now.”

In the landmark Brown ruling in 1954, the

Supreme Court ruled that operation of sepa-

rate school systems for black and white children

violated the equal protection clause of the

Fourteenth Amendment. The following year,

in Brown v. Board of Education (Brown II), 349

U.S. 294 (1955), the Supreme Court urged school

systems to begin dismantling segregation “with all

deliberate speed,” but did not set any deadlines or

impose any penalties for noncompliance.

Response in many southern states ranged from

open resistance and deﬁ ance to mere noncompli-

ance. In New Kent County, Virginia, a rural area

outside of Richmond, the school board did virtu-

ally nothing for a decade to try to eliminate the

separate white and black schools that state law

had required. Then the school board adopted a

freedom-of-choice plan, which meant any student

could attend any school. A federal district court

and the U.S. Court of Appeals for the Fourth Cir-

cuit largely upheld the choice plan.

In an unanimous decision written by Justice

William J. Brennan, Jr., the Supreme Court

said New Kent County had not done nearly enough

to eliminate the remnants of a segregated school

system. He said the goal was to stop running dual

school systems and to begin to operate a “unitary”

system.

The Court noted that in three years under the

freedom-of-choice plan, not a single white student

had changed schools; and although 115 black stu-

dents had moved to the white school, 85 percent

of black children were still attending an all-black

school. Instructing federal judges on how to evalu-

ate freedom-of-choice systems, Brennan said, “Of

course, the availability to the board of other more

promising courses of action may indicate a lack of

good faith; and at the least it places a heavy bur-

den upon the board to explain its preference for

an apparently less effective method.”

A key portion of Brennan’s decision observed

that segregation traditionally involved racial sepa-

ration not just for pupil assignment, but also for

transportation, staff, teachers, extracurricular

activities, and facilities. These came to be known

as the “Green factors,” and for nearly 25 years

federal judges took the approach that segregation

had to be eliminated in all of these facets of school

operation at the same time. However, in Freeman

v. Pitts, 503 U.S. 467 (1992), the Supreme Court

ruled that if a school system eliminated the effects

of segregation in one facet, a federal court could

Green v. County School Board of New Kent County, Virginia 327

xviii+446_EofUSConsti-v1.indd 327 3/12/09 3:05:21 PM

release the school system from court supervision

as to that factor.

The Court’s determination in Green to have

school systems get on with the task helped show

officials that the justices were serious and that

delay was no longer acceptable.

In 2001, the formerly white New Kent School

and the formerly black George Watkins School

were designated national historic landmarks.

For more information: Orﬁ eld, Gary, and David

Thronson. “Dismantling Desegregation: Uncer-

tain Gains, Unexpected Costs.” Emory Law Jour-

nal 42 (1993): 759–790.

—Stephen Wermiel

Gregg v. Georgia 428 U.S. 153 (1976)

In this case the Supreme Court reestablished

the death penalty, subsequently answering the

question of whether the imposition of the death

penalty sentence was not allowable under the

Eighth and Fourteenth Amendments of the

Constitution.

The F

URMAN V. GEORGIA, 408 U.S. 238 (1972),

case, which halted the practice of prescribing

death as a penalty was overturned by the Gregg

decision. The focus of the opponents of the death

penalty was that the application of such a rule

of law is subjecting the defendant to “cruel and

unusual” punishment. The deterrent nature of the

death penalty was not a rationale the high court

used to allow the penalty of death to be again

established, but rather the manner in which the

decision was reached. The Supreme Court held

that under the Constitution, with a majority deci-

sion of 7 to 2, a punishment of death did not vio-

late either the Eighth or Fourteenth Amendment

in every scenario.

In more recent years, the view of the death

penalty and the application of sentences of death

have spurred a revamping and reanalysis of

whether or not the system retains due process

flaws. The commission of heinous crime when

someone willfully kills another with the intent

to do so in a depraved manner rises to a level of

indifference to human life, and these cases have

been determined to be acceptable for the appli-

cation of the death penalty. The subject matter

for the case involved the careful application by

the state of Georgia and their methodological

approach to application of such a penalty within

the law through the separation of sentencing and

trial. A careful contextual analysis was performed

by the judiciary so as to determine whether the

application is acceptable based upon similar sce-

narios and cases.

Gregg had committed a robbery and double

murder. The case went to trial, where he was

convicted of his crimes and sentenced to death,

whereupon he challenged that the application

of the death sentence would be cruel and

unusual punishment. The jury decided that

the behavior where Gregg could be sentenced to

death were the convictions that he received for

the counts of murder. The jury believed that the

murders were completed during the commission

of a capital crime and that the murders where

intentional and wanton, which in sum rose to the

level deemed appropriate for application of the

death penalty. The automatic review by the Geor-

gia State Supreme Court believed that no error in

law was made, the prescription for the penalty of

death had been reached in an unbiased manner,

and no arbitrary factors were overlooked, so the

conviction should stand.

For more than a few justices, the contradictions

of Gregg ﬁ nally proved too much. Of the original

seven-vote Gregg plurality, two justices—Harry

Blackmun and Lewis Franklin Powell,

Jr.—came to publicly regret their endorsement of

capital punishment, and another—John Paul

Stevens—seems on a case-by-case basis to be

headed the same way. Sandra Day O’Connor

spent her last years on the Court shutting many

of the doors Gregg had opened—execution of

juveniles and the retarded, for instance—and

expressing her grave reservations about capital rep-

resentation. Justice Anthony M. Kennedy seems

to have inherited her unease. Recent attitudes

within the high court suggest that the tide may

be again turning, as is evidenced by the Supreme

Court’s decisions to limit the execution of both

juveniles and those of challenged intelligence.

328 Gregg v. Georgia

xviii+446_EofUSConsti-v1.indd 328 3/12/09 3:05:21 PM

For more information: Hemmens, Craig, Kath-

erine Bennett, and Barbara Belbot. Criminal Jus-

tice Case Briefs. Signiﬁ cant Cases in Corrections.

Los Angeles, Calif.: Roxbury Pub. Co., 2004.

—Ernest Gomez

Gregory v. Ashcroft 501 U.S. 452 (1991)

In Gregory v. Ashcroft, the Supreme Court

ruled that Missouri’s constitutional mandatory

retirement of state judges at the age of 70 did

not violate the Age Discrimination and Employ-

ment Act of 1967 (ADEA) and did not violate the

equal protection clause of the Fourteenth

Amendment. This ruling upheld the states’ right

to determine the terms of judicial service without

a clear indication by Congress to override state

sovereignty.

Judges Gregory and Nugent ﬁ led suit against

Governor Ashcroft, seeking to overturn a Mis-

souri constitutional provision requiring manda-

tory retirement of state judges at the age of 70.

Article V, 26 of the Missouri Constitution states,

“All judges other than municipal judges shall

retire at the age of seventy years.” Gregory and

Nugent argued that the ADEA prevents age dis-

crimination against an “employee.” The section of

the ADEA in controversy deﬁ nes an employee as

“an individual employed by an employer except

that the term ‘employee’ shall not include any per-

son elected to public ofﬁ ce in any State or politi-

cal subdivision of any State by the qualiﬁ ed voters

thereof, or any person chosen by such ofﬁ cer to

be on such ofﬁ cer’s personal staff, or an appointee

on the policymaking level or an immediate adviser

with respect to the exercise of the constitutional or

legal powers of the ofﬁ ce” (29 U.S.C. 630[f]). They

also argue that the treatment of judges, as sepa-

rate from other state employees and/or municipal

judges, is a violation of the equal protection clause

of the Fourteenth Amendment. Gregory and

Nugent were appointed to their judicial positions

but retain their positions through retention elec-

tions, which are at times unopposed.

The United States district court granted Gov-

ernor Ashcroft’s motion to dismiss, ruling that

the ADEA did not apply to the judges because

they are “appointees on the policymaking level”

and because under the equal protection clause

test, there is a rational basis for seeking judicial

retirement at the age of 70. The U.S. Court of

Appeals for the Eighth Circuit afﬁ rmed the lower

court dismissal. The Supreme Court affirmed

the lower courts’ ruling and Justice Sandra Day

O’Connor delivered the opinion of the court.

The majority reasoned that the state of Mis-

souri enacted this constitutional provision under

the state’s sovereignty, requiring a clear statement

by the federal Congress to upset that sovereign

authority. The court ruled that such a usurpation

of authority by the federal government against a

state government requires a “clear statement” of

that intent. Since no clear statement exists, the

Supreme Court felt no such attempt was made.

O’Connor then reasoned that state judges are

ambiguous as to whether they are or are not cov-

ered by the ADEA exception of employee. She

felt a clear statement by Congress to include state

judges is warranted in an issue touching on the

question of federalism and sovereignty. It is

more likely that state judges would be excluded,

in order to avoid difﬁ cult questions of federalism,

than included. Therefore, the judges fall under the

ADEA exception of “appointee on the policymak-

ing level.”

Since age is not a “suspect classiﬁ cation” under

the equal protection line of cases, and Gregory

and Nugent have not claimed a fundamental

right to continue to practice as judges, the state

need only assert a “rational basis” for its classi-

ﬁ cation under the state constitution. O’Connor

offered and evidenced several rational reasons

for disparate treatment of state judges and held

that the Missouri constitutional provision did not

violate the equal protection clause of the U.S.

Constitution.

Justices Harry Blackmun and Thurgood Mar-

shall dissented tracing the congressional debate

to a discussion regarding only an “elected offi-

cial’s ﬁ rst line advisers” in the exceptions to the

ADEA. Similarly, they would have deferred to the

EEOC’s interpretation of the statute the EEOC

must administer and regarded the state judges as

covered under the ADEA.

Gregory v. Ashcroft 329

xviii+446_EofUSConsti-v1.indd 329 3/12/09 3:05:21 PM

Justices Byron White and John Paul Ste-

vens concurred in part and in the judgment but

dissented with regard to the use of the plain state-

ment rule as being unworkable and unwise to

resolve this and most other disputes.

This case is important because it limits the

reach of federal intrusion on state sovereignty

but does so without addressing a fundamental

problem, federal power under the commerce

clause.

For more information: Peterson, Paul E. The

Price of Federalism. Washington, D.C.: Brookings

Institution, 1995.

—Julian M. Davis

Griggs v. Duke Power Co. 401 U.S. 424

(1971)

In Griggs v. Duke Power, the Supreme Court held

that Title VII of the Civil Rights Act of 1964

prohibits employment practices that discriminate

against persons based on race, even if the intent

behind the practices was benign. The importance

of this landmark ruling resided with the Court’s

interpreting Title VII to prohibit both disparate

treatment (behavior) and impact (consequences of

seemingly nondiscriminatory practices).

In this case, Duke Power, which had prior to

the passage of the 1964 Civil Rights Act separate

job classiﬁ cations depending upon the employ-

ee’s race, required all applicants for traditionally

white classifications to pass two aptitude tests

and have a record of completing high school.

Griggs and other black employees at the compa-

ny’s generating plant brought suit, claiming that

the aptitude tests and high school diploma were

not job related and affected a disproportionate

number of blacks regarding promotion, transfer,

or employment.

Chief Justice Warren Earl Burger, writ-

ing for a unanimous Court (Justice William

J. Brennan, Jr., not participating), stated that

Congress’s purpose in Title VII of the 1964 Civil

Rights Act was to achieve equality in employment

opportunities and to remove any barriers that had

tended to favor white employees over employees

of other races. Moreover, Burger emphasized

how Congress was not trying to grant jobs to per-

sons unqualiﬁ ed for positions, but rather, it was

attempting to remove those methods that busi-

nesses used to maintain segregation or discrimina-

tion in the workplace.

After reviewing the purpose of the law, Burger

then made clear that the Act not only prohibited

overt discrimination, but “also practices fair in

form but discriminatory in operation.” Unless a

business could show that a test, requirement, etc.

could be shown to relate to job performance, the

practice was not allowed under the Act. Applied to

the case facts, the Court said that there was little

evidence presented by Duke Power to suggest that

the aptitude tests and high school diploma were

related to the jobs to which blacks were applying

(with the burden of proof falling on the company

to show that the practice was not discriminatory).

Rather, the company felt that the tests and diploma

requirements would improve the overall quality of

the workforce. Though the intent of the company

was not discriminatory in purpose (improving

overall quality), its impact was felt in dispropor-

tionate numbers by blacks who were eliminated

for employment consideration.

Subsequent case law in this ﬁ eld developed the

notion that plaintiffs (those alleging disparate

impact) initially had to show that there was sta-

tistical evidence that one group was suffering dis-

crimination at the hands of business, but then, the

defendant had the burden to prove that its practices

were a business necessity. In 1989, however, a more

conservative Court held in Ward’s Cove Packing

Co. v. Atonio (1989) that the plaintiff had the bur-

den of proof at all times, making it more difﬁ cult for

individuals to demonstrate disparate impact. Con-

gress, in the Civil Rights Act of 1991, made it clear

that the standard prior to the Ward’s Cove decision

was to be followed in disparate impact cases.

For more information: Roberts, Gary E. “Issues,

Challenges, and Changes in Recruitment and

Selection.” In Public Personnel Administration:

Problems and Prospects. 4th ed. Upper Saddle

River, N.J.: Prentice Hall, 2003.

—John M. Aughenbaugh

330 Griggs v. Duke Power Co.

xviii+446_EofUSConsti-v1.indd 330 3/12/09 3:05:22 PM

Griswold v. Connecticut 381 U.S. 479 (1965)

In the case of Griswold v. Connecticut, the United

States Supreme Court held that the Constitution

holds an implicit right to privacy which is guar-

anteed to American citizens through the First,

Third, Fourth, Fifth, and Ninth Amendments.

The defendants in Griswold were an execu-

tive director of the Planned Parenthood League

of Connecticut and a licensed doctor and Yale

Medical School professor who served as the med-

ical director for the New Haven, Connecticut,

Planned Parenthood League center. The facts

in the case alleged that both defendants gave

“information, instruction, and medical advice

to married persons as to the means of prevent-

ing conception.” A Connecticut statute made the

use of contraceptives a criminal offense. The

defendants were convicted of having violated

the statute as accessories to the crime for hav-

ing disseminated the contraception information.

It should be noted that no users of the contra-

ception information, married or single, were ever

charged in the case.

Justice William O. Douglas begins by using

the amendments listed above to illustrate his

points on privacy. The First Amendment’s right

of association stands for the principle that one may

associate with whom one wants and it remains a

private matter. The Third Amendment’s pro-

hibition against the quartering of soldiers dur-

ing peacetime illustrates that American citizens

should not have to fear private discussions in their

own homes because of having to house a soldier

there who might be spying on them. The Fourth

Amendment’s protection against unreasonable

search and seizure guarantees a citizen’s protec-

tion from the unreasonable viewing of his or her

possessions and actions without a proper determi-

nation of probable cause. The Fifth Amendment’s

protection from self-incrimination means that a

citizen may keep private information which would

tend to incriminate him in a certain criminal

action. The Ninth Amendment’s reservation

of non-enumerated rights to the people of the

United States implies that the right of privacy is

not speciﬁ cally granted to the government, but to

the people. These amendments create a “penum-

bra” or “zone of privacy” under which the right of

married people to use contraceptives falls.

The Court ruled that the right of privacy to use

birth control within the conﬁ nes of marriage was a

legitimate right and thus concluded that the Con-

necticut Gen. Stat. § 53-32 (rev. 1958) was uncon-

stitutional, reversing the defendants’ convictions.

For more information: Schwartz, Bernard. A

History of the Supreme Court. New York: Oxford

University Press, 1993.

—Kelli Styron

Grutter v. Bollinger 539 U.S. 306 (2003)

In Grutter v. Bollinger, a sharply divided Court

ruled that using race in a narrowly-tailored

admissions policy furthered the state school’s

compelling interests and did not conﬂ ict with the

equal protection clause of the Fourteenth

Amendment, Title VI of the Civil Rights Act

of 1964, or with 42 U.S.C. Section 1981.

The case arose when Barbara Grutter, a white

woman, sued Dean Lee Bollinger when the Uni-

versity of Michigan law school denied her admis-

sion under a policy that included an afﬁ rmative

effort to enroll a critical mass of underrepre-

sented minority students. The university claimed

that race was only one of several factors it used to

select a diverse student body that would contrib-

ute to the school’s character and the legal profes-

sion. Grutter argued the admissions policy favored

minorities over Caucasians.

Justice Sandra Day O’Connor, who wrote for

herself, and Justices John Paul Stevens, David

H. Souter, Ruth Bader Ginsburg, and Ste-

ven G. Breyer relied heavily on Justice Lewis

Franklin Powell, Jr.’s landmark opinion in

EGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE,

438 U.S. 265 (1978), where Powell sustained the

use of race as one factor in admitting students for

the purpose of fostering a robust exchange of ideas

within a heterogeneous class environment.

Chief Justice William Hubbs Rehnquist,

joined by Justices Antonin Gregory Sca-

lia, Anthony M. Kennedy, and Clarence

Thomas, dissented. Rehnquist maintained that

Grutter v. Bollinger 331

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