Misc. Case Law: Wartime Internment, Right to Die, Executive Privilege, Equal Marriage Rights

Facts of the Case

As part of the response to the Japanese attack on Pearl Harbor during the Second World War, the U.S. government decided to require Japanese-Americans to move into relocation camps as a matter of national security. President Franklin Roosevelt signed Executive Order 9066 in February 1942, two months after Pearl Harbor, and it was implemented three months later by Civilian Restrictive Order No. 1, 8 Fed. Reg. 982 and Civilian Exclusion Order No. 34 of the U.S. Army. These orders applied to all Japanese-Americans in the U.S., whether or not they were suspected of sabotage or other conduct detrimental to the war effort.

A Japanese-American man living in San Leandro, Fred Korematsu, chose to stay at his residence rather than obey the order to relocate. Korematsu was arrested and convicted of violating the order. He responded by arguing that Executive Order 9066 violated the Fifth Amendment of the Constitution because habeas corpus had not been suspended, and his right to liberty was being infringed by military action without due process of law.

The Ninth Circuit affirmed Korematsu's conviction, based on deference to the executive branch during wartime, and he appealed.

Question

Did the President and Congress go beyond their war powers by implementing exclusion and restricting the rights of Americans of Japanese descent?

Opinions

Majority (6): Black and the Justices who joined his opinion felt that the Executive Order did not show racial prejudice but rather responded to the strategic imperative of keeping the U.S. and particularly the West Coast (the region nearest Japan) secure from sabotage and invasion. They relied heavily on a 1941 decision, Hirabayashi v. U.S., which addressed similar issues. Black argued that the validation of the military's decision by Congress merited even more deference.

While it relied on a few different precedents from the majority's reasoning, Frankfurter's concurrence was based on the same logic of deference to military authorities in wartime.

Minority (3):  

This dissent argued that the Executive Order and the policies implementing it were racist in nature. It contrasted them with the more lenient treatment of German-Americans and Italian-Americans, who also had connections to nations with which the U.S. was simultaneously at war.

Justice Jackson took a more measured approach than Murphy, agreeing with the majority insofar as the additional deference owed to the military during wartime. However, he argued that this deference was not a blank check, and that courts still could overrule actions by the military that were unconstitutional. Jackson feared that this decision would create a dangerous precedent for future national emergencies.

Roberts had assisted a commission that investigated the attack on Pearl Harbor and was critical of the conduct of the U.S. military during that process. This experience may have contributed to his dissent, which was closer in reasoning to Murphy than Jackson.

Case Commentary 

This decision is not one of the Court's proudest moments and is widely recognized now as a mistake, driven by the panic after the Pearl Harbor attack. The U.S. government provided compensation to people affected by the deportation decades later. However, from a legal perspective, the decision did delineate the strict scrutiny standard of review that later played a role in combating discrimination.

Facts of the Case

This case arose from the Watergate scandal, following a burglary at the Democrat Party headquarters in the Watergate building complex in Washington, D.C. President Richard Nixon, who was contesting the 1972 presidential election against Democrat candidate George McGovern, sought to quash a subpoena obtained by special prosecutor Leon Jaworski, who had been appointed to investigate the burglary. (Nixon had fired the initial special prosecutor, Archibald Cox, as well as Attorney General Elliot Richardson during the infamous Saturday Night Massacre.)

The subpoena was designed to give Jaworski access to tapes and papers that concerned meetings between Nixon and people who had been indicted in connection with the burglary. There were reasonable grounds to believe that this evidence contained statements that would be damaging to Nixon as well as the indicted people. Nixon complied in part with the subpoena, releasing edited versions of dozens of conversations and parts of 20 conversations that the subpoena had named. However, he asked the federal court to quash the subpoena based on lack of necessity and the President's executive privilege. Nixon's attorney also attempted to argue that courts were not qualified to hear disputes regarding these communications within the executive branch. The federal district court denied the request to quash, while Jaworski sought complete compliance with the subpoena. Both parties appealed, and the Supreme Court expedited its review to hear arguments within a month.

Question

Is the President's right to safeguard certain information, using his "executive privilege" confidentiality power, entirely immune from judicial review?

Opinions

Majority (8*): Recognizing the importance of unanimity, all of the Justices contributed to the opinion, which held that the judiciary branch was capable of resolving this type of dispute. They dismissed the notion that insufficient necessity had been shown for the subpoena, and the opinion focused on the President's executive privilege. Nixon and his attorney had cast this privilege extremely broadly, and the Court was unwilling to accept such an absolute bar to liability. They did find that a qualified privilege existed while the President is in office, but it could not extend to all circumstances and especially not to those in which serious wrongdoing was convincingly alleged.

Minority (0):  None (unanimous decision)

*Justice Rehnquist recused himself

Case Commentary

This decision balanced the privilege of confidentiality in presidential communications against the importance of providing clarity and fairness in criminal justice. Since the circumstances were somewhat unique, the case may have limited value as a precedent, but it does illustrate an instance in which the Court chose to check executive authority.

Nixon resigned from office about two weeks later. He was pardoned by the following president, Gerald Ford, for any criminal involvement in the events of the Watergate scandal

Facts of the Case

This case arose from a car accident on January 11, 1983, when Nancy Cruzan lost control of her vehicle and was thrown into a ditch with standing water. She was found lying face-down in the water, and no vital signs were initially observed by the paramedics who came to the scene. The paramedics resuscitated Cruzan, and she received further treatment from hospital staff as she spent the next three weeks in a coma. Doctors told her family that she was likely to remain permanently in a vegetative state, but her life could be preserved for a substantial time by using a feeding tube.

Cruzan's family sought to terminate her life support through the feeding tube, believing that she would prefer to die rather than remain in a vegetative condition. The family based this belief on statements that Cruzan had made throughout her life that she would not want to live as a vegetable. When they presented this evidence, however, a Missouri court concluded that it did not meet the state-imposed requirement of clear and convincing evidence needed to establish a person's desire to forgo life support.

Question

Did the Due Process Clause of the Fourteenth Amendment permit Cruzan's parents to refuse life-sustaining treatment on their daughter's behalf?

Opinions

Majority (5): While making clear that the Due Process Clause of the Fourteenth Amendment supported the right to refuse medical treatment, as part of the right to privacy, the majority agreed with the Missouri Supreme Court that Cruzan's family had not submitted sufficiently clear and convincing evidence. It found that Cruzan's stray statements throughout the course of her life were not sufficiently specific to conclude that she would not want medical treatment or the feeding tube. The majority also dismissed the notion that family members would be able to substitute their own judgment for an individual patient's judgment unless they could clearly show that the patient shared their views.

Minority (4)

Case Commentary

The case did not rule more generally on the existence of a right to die. Instead, the Court cautiously limited its decision to the evidentiary burden in these situations. Cruzan still proved influential, however, in spurring the use of advanced health care directives, in which individuals can state their preferences on this issue in advance should they be unable to make them clear when needed. 

After this appeal had been heard, the family ultimately found more convincing proof that Nancy Cruzan would have refused life support. The lower court was persuaded that the standard was met and ordered her removed from life support in December 1990.

Facts of the Case

Michigan, Kentucky, Ohio, and Tennessee define marriage as a union between one man and one woman. Plaintiffs challenged the laws as violating the Fourteenth Amendment. The district courts ruled in their favor. The Sixth Circuit consolidated the cases and reversed. The Supreme Court reversed. The Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. The Court noted other changes in the institution of marriage: the decline of arranged marriages, invalidation of bans on interracial marriage and use of contraception, and abandonment of the law of coverture. The fundamental liberties protected by the Fourteenth Amendment extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. Marriage is a centerpiece of social order and fundamental under the Constitution; it draws meaning from related rights of childrearing, procreation, and education. The marriage laws at issue harm and humiliate the children of same-sex couples; burden the liberty of same-sex couples; and abridge central precepts of equality. There may be an initial inclination to await further legislation, litigation, and debate, but referenda, legislative debates, and grassroots campaigns; studies and other writings; and extensive litigation have led to an enhanced understanding of the issue. While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right. The First Amendment ensures that religions, those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are central to their lives and faiths.

In Ohio, John Arthur was suffering from the latter stages of amyotrophic lateral sclerosis (ALS), a terminal illness. Recognizing the need to make critical end-of-life decisions, Arthur sought to have the Ohio Registrar identify his partner, James Obergefell, as his surviving spouse on his death certificate so that Obergefell could receive the benefits due to a spouse. Arthur and Obergefell had married in Maryland two years earlier. The Registrar planned to certify Obergefell as Arthur's spouse on the death certificate, believing that discrimination against same-sex couples was unconstitutional. The state of Ohio prohibited same-sex marriage, however, and its Attorney General's Office mobilized to defend that ban.

Other groups of same-sex couples sued their relevant state agencies in Ohio, Michigan, Kentucky, and Tennessee to challenge the constitutionality of those states' bans on same-sex marriage or refusal to recognize legal same-sex marriages that occurred in jurisdictions that provided for such marriages. The plaintiffs in each case argued that the states' statutes violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment, and one group of plaintiffs also brought claims under the Civil Rights Act. In all the cases, the trial court found in favor of the plaintiffs. The U.S. Court of Appeals for the Sixth Circuit reversed and held that the states' bans on same-sex marriage and refusal to recognize marriages performed in other states did not violate the couples' Fourteenth Amendment rights to equal protection and due process.

Question

(1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

(2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex that was legally licensed and performed in another state?

Opinions

Majority (5): Marriage is central to personal identity, dignity, and autonomy. Thus, it is a fundamental right that has strong protections under the Fourteenth Amendment, both independently and through its connection to related fundamental rights regarding child-rearing, procreation, and education. State bans on same-sex marriage clearly infringe on all of these rights by restricting the liberty of same-sex couples, harming the development of their children, and undermining principles of equality that lie at the core of American society. 

Over time, this institution has evolved significantly from its traditional origins. Archaic practices such as arranged marriages and the law of coverture have been abandoned. This Court has struck down state bans on the use of contraception (see Griswold v. Connecticut, 381 U.S. 479 (1965)) and on interracial marriage (see Loving v. Virginia, 388 U.S. 1 (1967)). There is no longer a reason to hesitate before recognizing the right of same-sex couples to marriage equality, for the merits of the issue have become abundantly clear through legislative debates, academic research, and a long history of litigation. Legislative action through the democratic process is the usual mechanism for change, but courts may intervene on behalf of people whose fundamental rights have been infringed. Granting marriage equality to same-sex couples accords them the equal dignity under the law to which they are constitutionally entitled.

Minority (4):  This is a policy decision that should be left to legislatures, as demonstrated by the writings of the Framers and earlier decisions of this Court. The majority has engaged in inappropriate judicial activism by taking this issue out of their hands. States should be free to define marriage as they see fit.

The majority's decision threatens the democratic principles at the core of American society by allowing the judgment of an elite few to substitute for the will of the many.

The majority distorts the principles expressed by the Framers of the Constitution by portraying human dignity as granted by the government rather than emanating from the individual. The Constitution is meant to provide freedom from government intervention rather than the right to receive a government entitlement.

There is no textual basis in the Constitution or the history surrounding it that prevents states from developing their own definitions of marriage. Rather than focusing on what the states are constitutionally required to do, the majority substitutes a more nebulous view of what they should do, which is not within the Court's power to determine.

Case Commentary

This decision essentially ends the debate over whether same-sex marriage is legal or constitutionally required. It also marks the endpoint of the following 20-year trajectory in which the Court gradually expanded the scope of rights for America's LGBTQ+ community:

• Romer v. Evans ( 1996): States may not openly deny protected status to individuals based on sexual orientation.

• Lawrence v. Texas (2003): Sexual intercourse between members of the same sex is legal throughout the U.S. as a constitutional right.

• U.S. v. Windsor (2013): The federal government may not restrict its definition of marriage to heterosexual relationships.

All four of these decisions were authored by Kennedy, whose legacy as a Supreme Court Justice likely will consist of his impact on gay rights. 

The United States becomes the 23rd country to recognize marriage equality, joining Argentina, Belgium, Brazil, Canada, Denmark, the United Kingdom (except for Northern Ireland), Finland, France, French Guiana, Greenland, Iceland, Ireland, Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, and Uruguay.