Episode 8: Palmer v. Thompson

In 1954, the Supreme Court struck down the Jim Crow doctrine of "separate but equal" in public education. A year later, the Court ruled that all public facilities operated by state and local municipalities must be desegregated as well.

In a subsequent lower court case called Clark v. Thompson, the city of Jackson, Mississippi was ordered to desegregate its parks, its zoo, its golf courses, and its five swimming pools. The city complied with one exception; instead of opening its pools to people of all races, it closed them all down entirely.

A group of local African Americans sued, arguing that the decision to close all the pools - which city leaders admitted was done in response to the integration order - was based on racial animus and in violation the Thirteenth and Fourteenth Amendments. The Supreme Court, in a very close 5-4 vote, disagreed. The social ramifications, if not the legal ones, would be dire.

Questions:  Did the closing of public pools to all persons constitute a denial of equal protection of the laws to Negroes under the Fourteenth Amendment? Did the city council's action in closing the pools, instead of keeping them open on an integrated basis, create a "badge or incident" of slavery in violation of the Thirteenth Amendment?

Answers: No and no.

Majority:

• Hugo Black (majority opinion)
• Warren Burger (w/ concurrence)
• John Marshall Harlan
• Potter Stewart
• Harry Blackmun (w/ concurrence)

Dissent:

• William Douglas (w/ opinion)
• Byron White (w/ opinion)
• William Brennan
• Thurgood Marshall (w/ opinion)

Episode 6: Lawrence v. Texas

In 1986, the Supreme Court upheld the anti-sodomy law of Georgia in a case called Bowers v. Hardwick, effectively ruling that anti-gay discrimination across the country was constitutional. But in 2003, after John Lawrence and Tyron Garner were arrested in Texas for having gay sex, the Supreme Court took up the issue once again.

Lawrence and Garner argued that the Texas law, which prohibited gay sexual acts but not similar acts performed by different sex couples, violated the Fourteenth Amendment. It was a violation of both the Equal Protection Clause and the Due Process Clause, they said. In opposition, the state of Texas argued that there was no constitutional right to gay sexual conduct, just as the Court had held in Bowers,. 

But whether or not Bowers was correctly decided in the first place was also an issue before the Supreme Court. Would they decide to overrule it and recognize a constitutional right for all Americans to sexual autonomy? Indeed, and the Lawrence decision (along with a prescient dissent by Justice Antonin Scalia) would pave the way for future landmark gay rights cases.

Questions: Do the criminal convictions of John Lawrence and Tyron Garner under the Texas "Homosexual Conduct" law, which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples, violate the Fourteenth Amendment guarantee of equal protection of laws? Do their criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? Should Bowers v. Hardwick, 478 U.S. 186 (1986), be overruled?

Answers: Undecided, yes, and yes.

Majority:

• Anthony Kennedy (majority opinion)
• John Paul Stevens 
• David Souter 
• Ruth Bader Ginsburg
• Stephen Breyer
• Sandra Day O'Connor (w/ concurrence only in the judgment)

Dissent:

• Antonin Scalia (w/ opinion)
• William Rehnquist 
• Clarence Thomas (w/ opinion)

Episode 5: Bowers v. Hardwick

In the early 1980s, as the AIDS epidemic raged and public scorn for gay people had reached a fevered pitch, Michael Hardwick was arrested at his home in Georgia for the crime of sodomy. His consensual relationship with a male partner landed him in the back of a police car. 

Though he was not ultimately charged or convicted, Hardwick sued Georgia, arguing that, as a gay man, the criminal prohibition of gay sexual activity would eventually put him at risk for future problems with the law. Hardwick believed the Fourteenth Amendment of the Constitution, which requires due process, protected a right to the private sexual intimacy of everyone.

In 1986, the Supreme Court narrowly ruled otherwise. The Court framed Hardwick's argument very narrowly, as a demand for a right to a specific kind of sex, rather than as a broad right to individual autonomy in intimate decisions. Hardwick lost, and the burgeoning gay rights movement was nearly halted in its tracks. 

Question: Does the Constitution confer a fundamental right upon homosexuals to engage in consensual sodomy, thereby invalidating the laws of many states which make such conduct illegal?

Answer: No.

Majority:

• Byron White (majority opinion)
• Warren Burger (w/ concurrence)
• Lewis Powell (w/ concurrence)
• William Rehnquist
• Sandra Day O'Connor

Dissent:

• Harry Blackmun (w/ opinion)
• John Paul Stevens (w/ opinion)
• William Brennan
• Thurgood Marshall

Episode 3: Loving v. Virginia

In 1958, shortly after their wedding, Mildred and Richard Loving were arrested in their Virginia home by local police for the crime of being married. Richard was white. Mildred was black and Native American. 

Virginia's Racial Integrity Act of 1924, like laws in fifteen other states at the time, prohibited interracial marriages among white and black people. Richard and Mildred were convicted for violating this law and were banished from Virginia. After several years of exile in Washington, DC, they decided to challenge their convictions with the help of two young attorneys with the ACLU.

They would lose every step of the way. In 1966, the Virginia Supreme Court ruled against them, upholding the Virginia marriage ban as consistent with the Fourteenth Amendment's due process and equal protection clauses. So the Lovings turned to the last court they could, the U.S. Supreme Court.

There, the Supreme Court, led by Chief Justice Earl Warren, confronted the last major vestige of the Jim Crow era: anti-miscegenation laws. Though many states had voluntarily abandoned them, the Southern states clung on, and only one state court had ever ruled that a marriage ban was unconstitutional.  

Question: Did Virginia's anti-miscegenation law violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment?

Answer: Yes.

Majority:

• Earl Warren (majority opinion)
• Hugo Black
• William Douglas
• Tom Clark
• John Marshall Harlan II
• William Brennan
• Potter Stewart
• Byron White
• Abe Fortas

Episode 1: Roe v. Wade

The Fourteenth Amendment ensures that every person in the United States is entitled to due process of law. But what does "due process" mean? Does it mean that the government has no power to stop a woman from having an abortion? And who even qualifies as a "person" in the first place? Are we entitled to due process even before we're born?

Roe v. Wade was about far more than just abortion. To reach such a landmark decision, the Supreme Court had to explore the deep and complicated nuances of what it means to be a person, to have liberty, and to be entitled to due process of law. The Constitution can be a vague and tricky thing, and defining its limits is no easy task.

Question: Does the Fourteenth Amendment embrace a woman's right to terminate her pregnancy by abortion?

Answer: Yes

Majority:

• Harry Blackmun (majority opinion)
• Warren Burger (w/ concurring opinion)
• William Douglas (w/ concurring opinion)
• William Brennan
• Potter Stewart (w/ concurring opinion)
• Thurgood Marshall
• Lewis Powell

Dissenting:

• Byron White (w/ opinion)
• William Rehnquist (w/ opinion)