CONSTITUTIONAL LAW 2008
A. Monday Feb 1, 1790 = First day of the Sup Court
1. Court first met in NYC
2. First justice = John Jay
B. Current justices
1. Roberts = Generally conservative
2. Stevens = Generally liberal
3. O’Connor = Most influential. Has a way of swinging votes to her side. Retired.
4. Scalia = Usually keeps people who agree with him, but doesn’t gain any others. Often is the leader of his position…but does not always succeed in swaying swing votes b/c too extreme. Writes scathing opinions. Scalia is strong on free speech as to prior restraint.
5. Souter = Very process driven; more liberal than Reagan expected; must have strong reason to abandon precedents
6. Thomas = rarely says anything in argument; tends to agree with Scalia except in religion where he is now taking a leadership role. Questions the difference between the 5th and the 14th. Establishment Clause should be have been applied to the States. No Free Speech in school.
7. Ginsberg = Most predictable liberal; concerned with process; litigated gender equality in the past
8. Breyer = important swing vote in religion area; often swayed by O’Connor (maybe a little more liberal)
9. Kennedy = all over place; no consistency. Very hard to predict in religion. Very pro-freedom of speech, wants a per se rule that if it is content based it is no good. Never limit political speech.
10. Black= Absolutist on Free Speech
11. Douglas= Absolutist on Free Speech
II. DUE PROCESS
A. There are two aspects to due process:
1. Procedural: Fairness in the process
2. Substantive: Underlying substantive interest
III. PROCEDURAL DUE PROCESS
A. Reasons for Due Process
1. It ensures that your rights are not wrongfully deprived; it prevents error.
2. Determines rights in an orderly fashion.
1. Procedural Due Process is derived from the 5th (Federal) and 14th (State) Amendments
i.) Initially procedural due process did NOT always apply. The language of the 14th suggested that it was dependent on the constitutional interest in life, liberty, and property.
a.) At this time there was a difference between property and privilege.
b.) Goldberg v. Kelly: Welfare Benefits. Welfare benefits were considered a privilege and therefore could be taken away without due process.
i) Government must provided notice of an adversarial hearing.
ii) Even though the govt. does not have to give welfare, once it begins, there is a property interest a
not rehired. While there was no formal tenure, the expectation is if you work three years there is a de facto tenure. The Court thought there may be an argument here. You can argue there is a protectable property interest here, thru documents etc. Holding: Everything taken together shows actual entitlement.
iii.) You must show actual entitlement to a property right.
a.) Castle Rock v. Gonzales: Police do not enforce restraining order. Sued because police deprived her of her property in the restraining order. Holding: Court said that while there appeared to be a right to the restraining order. The enforcement was up to the police and therefore there was no property interest and no due process violation.
4. Examples of protectable property interests.
a.) Schooling. A child has a property interest in his right to go to school, because of compulsory education laws.
b.) Employment. A tenured professor has a property interest in her job. An at will employee does not, however.
D. Liberty Interest and Procedural Due Process