When you vote for a candidate for president, you are selecting more than that candidate. You are selecting the judges who that president will appoint. The next president could potentially name dozens of federal judges and will likely have the opportunity to name one or two Supreme Court justices, if history is a guide. Unsurprisingly, Republican appointed judges tend to be more conservative; Democratic appointees tend to be more liberal. However, the party of the President who appointed a judge is not always a reliable indicator of that judge's judicial philosophy. This is especially true of the Supreme Court justices who have lifetime positions. This selector features the nine current members of the Supreme Court and who appointed them along with a link to a brief biographical sketch. You may make a decision on every case, or just those cases important to you. This selector was created July 10, 2007.
1. ABORTION Should the federal Partial Birth Abortion Ban Act be upheld, thus effectively outlawing the procedure known medically as Dilation and evacuation (D&E or D&X)?
Yes. This federal ban does not impose an undue burden on the due process right of women to obtain an abortion. Furthermore, there is not sufficient evidence that Congress lacks power to ban this abortion procedure.
No. The ban is unconstitutional for two reasons: It is so generally worded that it creates a risk of criminal liability for physicians “...during virtually all abortions performed after the first trimester.” Also, the “omission of a health exception renders the Act unconstitutional.” Furthermore, this ban ignores Supreme Court abortion precedent.
2. FREE SPEECH In 2002, 18-year-old Joseph Frederick was suspended from school after he displayed a banner reading “BONG HiTS 4 JESUS” across the street from his high school in Juneau, Alaska, during the Winter Olympics Torch Relay. Upon displaying the banner, the principal ran across the street and seized it.
The principal suspended Frederick for ten days for violating the school district's anti-drug policy and for refusing to give the names of his fellow participants. Did the principal act legally?
Yes. It was appropriate to restrict the student's speech at a school event when that speech is reasonably viewed as promoting illegal drug use. Also, free speech rights of students in school are not as broad as those of adults.
No. The principle violated the student's right to free speech as protected by the First Amendment. “Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible.”
3. PAY DISCRIMINATION Lilly Ledbetter was a supervisor for Goodyear Tire and Rubber from 1979 until her retirement in 1998. She worked as an area manager, a position largely occupied by men. Initially, Ledbetter’s salary was in line with the salaries of men performing substantially similar work. Over time, however, her pay slipped in comparison to the pay of male area managers with equal or less seniority. Eventually, Ledbetter was paid $3,727 per month; the lowest paid male area manager received $4,286 per month, the highest paid, $5,236. Should Ms. Ledbetter be able to sue for discrimination?
Yes. It is often exceptionally difficult for employees to learn about salary disparities and to sue for wage discrimination while continuing to work for a company. It is contrary to Title VII of the Civil Rights Act of 1964 to make it more difficult for Americans to recover wages unfairly denied them, and less costly for companies to engage in discrimination against employees.
No. Under federal law Ms. Ledbetter should only be able to sue for the alleged discrimination that occurred within 180 days, and Ms. Ledbetter's claim was based on decisions made by the employer more than 180 days previous.
4. TAXPAYER MONEY Should taxpayers have the right to challenge the constitutionality of expenditures by the executive branch of the government? Case summary.
Yes. The Freedom From Religion Foundation argued, “The use of money appropriated by Congress under Article I, section 8, to fund conferences that various executive branch agencies hold to promote President Bush’s 'Faith-Based and Community Initiatives.'“ The Foundation held that “the defendant officials violated the Establishment Clause by organizing national and regional conferences at which faith-based organizations allegedly 'are singled out as being particularly worthy of federal funding because of their religious orientation, and the belief in God is extolled as distinguishing the claimed effectiveness of faith-based social services.'“ They also alleged “the defendant officials 'engage in myriad activities, such as making public appearances and giving speeches, throughout the United States, intended to promote and advocate for funding for faith-based organizations.'“
No. The Judiciary was constitutionally limited to hear “actual 'Cases' and 'Controversies.' “ For this to be so, the plaintiff must “have suffered an 'injury in fact' in the form of the 'invasion of a legally protected interest,' that is both 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.' “A federal taxpayer’s interest in the moneys of the treasury 'is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.'
5. SCHOOL DESEGREGATION Should school districts have limits in their ability to use race as a consideration when assigning students to schools in order to achieve integration goals?
Yes. To limit school districts in that manner would be a radical step away from established law that would take from communities a critical tool used for many years in the prevention of resegregation. As one Supreme Court justice lamented it would be a step back from the landmark Brown v. Board of Education decision.
No. While racially diverse environment is beneficial for education it is not a compelling reason to consider race alone in school assignments, worse it is unconstitutional. As one Supreme Court justice observed, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
6. CAMPAIGN FINANCE In 2002, the U.S. Congress passed the Bipartisan Campaign Reform Act (also known as “McCain-Feingold”) to regulate money in public election campaigns. One provision of the legislation limited “issue ads”, those ads using a candidate's name with regards to a particular issue, such as abortion. Should issues ads be allowed?
Yes. An organization's ads could reasonably be seen as opposing a policy or political action, rather than a particular candidate, so they therefore past constitutional muster. It's only when an ad is “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate” that McCain-Feingold kicks in.
No. “The ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention”, one justice noted. A century of reform aimed at mitigating what a 1986 Court ruling called the “distortive effects of immense aggregations of wealth” on politics is unraveling.
7. JUROR SELECTION Should the hand of prosecutors be strengthened in death penalty cases by making it easier to remove potential jurors who have qualms about capital punishment?
Yes. A potential juror should be disqualified who is unable to give appropriate consideration to imposing the death penalty. “Capital defendants have the right to be sentenced by an impartial jury,” A Supreme Court justice said, adding that “the state may not infringe this right” by eliminating “those whose scruples against the death penalty would not substantially impair the performance of their duties.”
No. If the prosecution had too free a hand in eliminating those with doubts about the death penalty, the jury would be stacked against the defendant. No matter what a juror’s personal opinion about capital punishment, that juror should not be dismissed if they are willing and able to follow the law in performing their duty as a juror.
8. PRICE MINIMUMS Should manufacturers and retailers be allowed to agree on minimum prices? The case involved a California shoe manufacturer that refused to sell its products to a retailer that priced them below the manufacturer’s guidelines. The footwear maker had halted deliveries to a retailer after the store insisted on discounting the products by 20 percent, ignoring the manufacturer’s effort to set a price floor as a way to bolster the image of its brand.
Yes. “Courts…can establish the litigation structure to ensure the rule operates to eliminate anti-competitive restraints from the market and to provide more guidance to businesses,” a justice wrote “Minimum resale price maintenance can stimulate interbrand competition,'' adding the practice “has the potential to give consumers more options so that they can choose among low-price, low-service brands; high- price, high-service brands; and brands that fall in between.''
No. Such a decision would “likely raise the price of goods,” a Supreme Court justice said, adding it should be left it to Congress to make any changes to the law, referring to Sherman Anti-Trust laws.
9. ENVIRONMENT Should the Environmental Protection Agency has authority to regulate heat-trapping gases in automobile emissions? In particular, should the EPA regulate carbon dioxide as a greenhouse gas pollutant? Case summary.
Yes. Coastal territories face submersion under sea levels that rise as polar icecaps melt.
No. A justice scoffed at the judicial “sleight-of-hand” based on a “speculative” danger to Massachusetts’s beaches. Global warming might be a problem, he wrote, but “the constitutional role of the courts... is to decide concrete cases -- not to serve as a convenient forum for policy debates.”
10. DEATH PENALTY Should delusional convicts who lack “rational understanding” as to why he was to be executed be sentenced to that punishment? The case involved a convicted of murder who represented himself during trial proceedings. He wore a purple cowboy suit and gave a rambling, nonsensical presentation in his defense in which he subpoenaed John F. Kennedy, Pope John Paul II, Anne Bancroft, and Jesus. Witnesses at the trial described it as a “farce,” a “joke,” a “circus,” and a “mockery.” Nevertheless, the jury returned a guilty verdict and Texas sentenced the man to death in 1995.
Yes. The convicted man had petitioned the federal courts twice in his case and the law allows only one petition. “The court bends over backwards to allow [the condemned man]” to bring his current claim, despite no evidence his condition has worsened or changed since 1995, a justice wrote. A decision in favor of the convicted man would be “a half-baked holding that leaves the details of the insanity standard” for the lower court to work out.
No. “Gross delusions stemming from a severe mental disorder may put an awareness of a link between a crime and its punishment in a context so far removed from reality that the punishment can serve no proper purpose.”