supreme court case study 19

Breaking News

Students for Fair Admissions Inc. v. President & Fellows of Harvard College

Holding : The admissions programs at Harvard College and the University of North Carolina violate the equal protection clause of the 14th Amendment.

Judgment : Reversed , 6-2, in an opinion by Chief Justice Roberts on June 29, 2023. Justice Thomas filed a concurring opinion. Justice Gorsuch filed a concurring opinion, in which Justice Thomas joined. Justice Kavanaugh filed a concurring opinion. Justice Sotomayor filed a dissenting opinion, in which Justice Kagan joined. Justice Jackson took no part in the consideration or decision of the case.

SCOTUSblog Coverage

• Supreme Court strikes down affirmative action programs in college admissions (Amy Howe, June 29, 2023)
• Affirmative action appears in jeopardy after marathon arguments (Amy Howe, October 31, 2022)
• The court is poised to set jurisprudence on race for generations — and not just in affirmative action (James Romoser, October 30, 2022)
• A guide to the amicus briefs in the affirmative-action cases (Ellena Erskine, Angie Gou, and Elisabeth Snyder, October 29, 2022)
• The court should relegate racial discrimination in higher education to the dustbin of history (Zach West and Bryan Cleveland, October 28, 2022)
• Being race-conscious is a necessary and effective tool to address racism and discrimination — including for Asian Americans (Bethany Li, October 28, 2022)
• On being original: Racial classifications and the fallacy of a certain strain of “progressive originalism” (Devon Westhill, October 28, 2022)
• A business perspective: Diversity in university admissions is a compelling interest (Michael R. Dreeben, Natalie Camastra, and Kelly Kambourelis, October 27, 2022)
• In higher education and beyond, race-based policies stifle individualism and ultimately harm everyone (Wen Fa, October 27, 2022)
• The history of anti-Black discrimination in higher education and the myth of a color-blind Constitution (Danielle R. Holley, October 26, 2022)
• Diversity by diktat: An obscure 1977 OMB memo forms the basis for today’s affirmative-action programs (David Bernstein, October 26, 2022)
• In cases challenging affirmative action, court will confront wide-ranging arguments on history, diversity, and the role of race in America (Amy Howe, October 26, 2022)
• Affirmative action cases up first in November argument calendar (Amy Howe, August 3, 2022)
• Court will hear affirmative-action challenges separately, allowing Jackson to participate in UNC case (Amy Howe, July 22, 2022)
• The rise of certiorari before judgment (Steve Vladeck, January 25, 2022)
• Court will hear challenges to affirmative action at Harvard and University of North Carolina (Amy Howe, January 24, 2022)
• Revenge of the rescheduled cases: Congressional proxy voting, the ministerial exception, and more (John Elwood, January 20, 2022)
• Court will take up five new cases, including lawsuit from football coach who wanted to pray on the field (Amy Howe, January 14, 2022)
• Blockbuster watch: Affirmative action, same-sex weddings, and other big relists (John Elwood, January 12, 2022)
• Justices add new cases on bankruptcy, workers’ comp, and relief from final judgments (Amy Howe, January 10, 2022)
• Justices request government’s views on Harvard affirmative-action dispute (Amy Howe, June 14, 2021)
• Affirmative action at Harvard, border searches and pedestrian safety (Andrew Hamm, February 26, 2021)

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When the stories of We the People become cases before the U.S. Supreme Court, and when those cases result in the opinions of the Court, history turns. The ways we think about and live under the Constitution are reflected in the Court’s interpretations in both their historical contexts and their legacies. Some cases—and the Court’s opinions in them—so profoundly alter our constitutional understandings that they can only rightly be called Landmark Cases—markers of where we have traveled as a nation. In this way, the Landmark Cases show us what we have tried, where we have been, and where we are—leaving We the People and future sessions of the Supreme Court to determine how we move forward towards a more perfect union.

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Supreme Court Landmarks

Participate in interactive landmark Supreme Court cases that have shaped history and have an impact on law-abiding citizens today.

Bethel School District #43 v. Fraser (1987) Holding:  Students do not have a First Amendment right to make obscene speeches in school.

Matthew N. Fraser, a student at Bethel High School, was suspended for three days for delivering an obscene and provocative speech to the student body. In this speech, he nominated his fellow classmate for an elected school office. The Supreme Court held that his free speech rights were not violated.

*This case relates to students.

Board of Education of Independent School District #92 of Pottawatomie County v. Earls (2002) Holding:  Random drug tests of students involved in extracurricular activities do not violate the Fourth Amendment.

In Veronia School District v. Acton (1995), the Supreme Court held that random drug tests of student athletes do not violate the Fourth Amendment's prohibition of unreasonable searches and seizures. Some schools then began to require drug tests of all students in extracurricular activities. The Supreme Court in Earls upheld this practice.

Brown v. Board of Education (1954) Holding:  Separate schools are not equal.

In  Plessy v. Ferguson  (1896), the Supreme Court sanctioned segregation by upholding the doctrine of "separate but equal." The National Association for the Advancement of Colored People disagreed with this ruling, challenging the constitutionality of segregation in the Topeka, Kansas, school system. In 1954, the Court reversed its Plessy decision, declaring that "separate schools are inherently unequal." Learn more about this case.

Honor the important figures involved in the related cases  Brown v. Board of Education  and Mendez v. Westminster  using a readers theater presentation. 

Cooper v. Aaron (1958) Holding:  States cannot nullify decisions of the federal courts.

Several government officials in southern states, including the governor and legislature of Alabama, refused to follow the Supreme Court's Brown v. Board of Education decision. They argued that the states could nullify federal court decisions if they felt that the federal courts were violating the Constitution. The Court unanimously rejected this argument and held that only the federal courts can decide when the Constitution is violated.

Engel v. Vitale (1962) Holding : School initiated-prayer in the public school system violates the First Amendment.

In the New York school system, each day began with a nondenominational prayer acknowledging dependence upon God. This action was challenged in Court as an unconstitutional state establishment of religion in violation of the First Amendment. The Supreme Court agreed, stating that the government could not sponsor such religious activities.

Gideon v. Wainwright (1963) Holding:  Indigent defendants must be provided representation without charge.

Gideon was accused of committing a felony. Being indigent, he petitioned the judge to provide him with an attorney free of charge. The judge denied his request. The Supreme Court ruled for Gideon, saying that the Sixth Amendment requires indigent criminal defendants to be provided an attorney free of charge.

Learn more about this case.

Goss v. Lopez (1975) Holding:  Students are entitled to certain due process rights.

Nine students at an Ohio public school received 10-day suspensions for disruptive behavior without due process protections. The Supreme Court ruled for the students, saying that once the state provides an education for all of its citizens, it cannot deprive them of it without ensuring due process protections.

Grutter v. Bollinger (2003) Holding:  Colleges and universities have a legitimate interest in promoting diversity.

Barbara Grutter alleged that her Equal Protection rights were violated when the University of Michigan Law School's attempt to gain a diverse student body resulted in the denial of her admission's application. The Supreme Court disagreed and held that institutions of higher education have a legitimate interest in promoting diversity.

Hazelwood v. Kuhlmeier (1988) Holding:  Administrators may edit the content of school newspapers.

The principal of Hazelwood East High School edited two articles in the school paper The Spectrum that he deemed inappropriate. The student authors argued that this violated their First Amendment right to freedom of speech. The Supreme Court disagreed, stating that administrators can edit materials that reflect school values.

*This case relates to students. Learn more about this case.

Mapp v. Ohio (1961) Holding:  Illegally obtained material cannot be used in a criminal trial.

While searching Dollree Mapp's house, police officers discovered obscene materials and arrested her. Because the police officers never produced a search warrant, she argued that the materials should be suppressed as the fruits of an illegal search and seizure. The Supreme Court agreed and applied to the states the exclusionary rule from Weeks v. United States(1914).

Marbury v. Madison (1803) Holding:  Established the doctrine of judicial review.

In the Judiciary Act of 1789, Congress gave the Supreme Court the authority to issue certain judicial writs. The Constitution did not give the Court this power. Because the Constitution is the Supreme Law of the Land, the Court held that any contradictory congressional Act is without force. The ability of federal courts to declare legislative and executive actions unconstitutional is known as judicial review.

Teach students the significance of Marbury v. Madison which establishes the concept of judicial review.

McCulloch v. Maryland (1819) Holding:  The Constitution gives the federal government certain implied powers.

Maryland imposed a tax on the Bank of the United States and questioned the federal government's ability to grant charters without explicit constitutional sanction. The Supreme Court held that the tax unconstitutionally interfered with federal supremacy and ruled that the Constitution gives the federal government certain implied powers.

Miranda v. Arizona (1966) Holding:  Police must inform suspects of their rights before questioning.

After hours of police interrogations, Ernesto Miranda confessed to rape and kidnapping. At trial, he sought to suppress his confession, stating that he was not advised of his rights to counsel and to remain silent. The Supreme Court agreed, holding that police must inform suspects of their rights before questioning.

New Jersey v. T.L.O. (1985) Holding : Students have a reduced expectation of privacy in school.

A teacher accused T.L.O. of smoking in the bathroom. When she denied the allegation, the principal searched her purse and found cigarettes and marijuana paraphernalia. A family court declared T.L.O. a delinquent. The Supreme Court ruled that her rights were not violated since students have reduced expectations of privacy in school.

New York Times v. Sullivan (1964) Holding : In order to prove libel, a public official must show that what was said against them was made with actual malice.

The New York Times was sued by the Montgomery, Alabama police commissioner, L.B. Sullivan, for printing an advertisement containing some false statements. The Supreme Court unanimously ruled in favor of the newspaper saying the right to publish all statements is protected under the First Amendment.

Roper v. Simmons (2005) Holding : It is cruel and unusual punishment to execute persons for crimes they committed before age 18. 

Matthew Simmons was sentenced to death for the murder of a woman when he was 17 years of age. In the 1988 caseThompson v. Oklahoma, the Supreme Court ruled that executing persons for crimes committed at age 15 or younger constitutes cruel and unusual punishment in violation of the Eighth Amendment. Roper argued that "evolving standards of decency" prevented the execution of an individual for crimes committed before the age of 18. A majority of the Supreme Court agreed with Roper, and held that to execute him for his crime would violate the Eighth Amendment.

Santa Fe Independent School District v. Doe (2000) Holding:  Students may not use a school's loudspeaker system to offer student-led, student-initiated prayer. 

Before football games, members of the student body of a Texas high school elected one of their classmates to address the players and spectators. These addresses were conducted over the school's loudspeakers and usually involved a prayer. Attendance at these events was voluntary. Three students sued the school arguing that the prayers violated the Establishment Clause of the First Amendment. A majority of the Court rejected the school's argument that since the prayer was student initiated and student led, as opposed to officially sponsored by the school, it did not violate the First Amendment. The Court held that this action did constitute school-sponsored prayer because the loudspeakers that the students used for their invocations were owned by the school.

Terry v. Ohio (1968) Holding:  Stop and frisks do not violate the Constitution under certain circumstances.

Observing Terry and others acting suspiciously in front of a store, a police officer concluded that they might rob it. The officer stopped and frisked the men. A weapon was found on Terry and he was convicted of carrying a concealed weapon. The Supreme Court ruled that this search was reasonable.

Texas v. Johnson (1989) Holding:  Even offensive speech such as flag burning is protected by the First Amendment.

To protest the policies of the Reagan administration, Gregory Lee Johnson burned an American flag outside of the Dallas City Hall. He was arrested for this act, but argued that it was symbolic speech. The Supreme Court agreed, ruling that symbolic speech is constitutionally protected even when it is offensive. Learn more about this case.

Tinker v. Des Moines (1969) Holding : Students do not leave their rights at the schoolhouse door.

To protest the Vietnam War, Mary Beth Tinker and her brother wore black armbands to school. Fearing a disruption, the administration prohibited wearing such armbands. The Tinkers were removed from school when they failed to comply, but the Supreme Court ruled that their actions were protected by the First Amendment.

Learn more about this case.  Teach students the significance of Tinker v. Des Moines which examines student's First Amendment rights. 

U.S. v. Nixon (1974) Holding:  The President is not above the law.

The special prosecutor in the Watergate affair subpoenaed audio tapes of Oval Office conversations. President Nixon refused to turn over the tapes, asserting executive privilege. The Supreme Court ruled that the defendants' right to potentially exculpating evidence outweighed the President's right to executive privilege if national security was not compromised.

Zelma v. Simmons-Harris (2002) Holding:  Certain school voucher programs are constitutional.

The Ohio Pilot Scholarship Program allowed certain Ohio families to receive tuition aid from the state. This would help offset the cost of tuition at private, including parochial (religiously affiliated), schools. The Supreme Court rejected First Amendment challenges to the program and stated that such aid does not violate the Establishment Clause.

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

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Criminal Trials & Prosecutions Supreme Court Cases

A defendant in a criminal prosecution faces the potential loss of their liberty. In addition to basic due process protections, defendants have certain rights under the Sixth Amendment to the U.S. Constitution, including:

• Speedy and public trial
• Trial by an impartial jury
• Assistance of counsel
• Confrontation of opposing witnesses

The right to confront opposing witnesses includes the right to cross-examine those witnesses. Under Crawford v. Washington , the modern standard for determining whether confrontation is required hinges on whether a statement is testimonial. Decisions following Crawford have sought to define testimonial statements. Confrontation Clause questions also may involve the meaning of “confrontation,” such as whether a confrontation must be face to face.

Beyond the Confrontation Clause, the Supreme Court has shaped constitutional rights related to lawyers and juries in criminal cases. For example, a defendant is entitled to the assistance of counsel regardless of whether they can afford a lawyer. This right even attaches before the start of a trial. The Supreme Court has interpreted the Sixth Amendment to require “effective” assistance of counsel. Meanwhile, a jury must be selected from a representative cross-section of the community. Jury pools and juries must be formed in a non-discriminatory way.

Below is a selection of Supreme Court cases involving criminal trials and prosecutions, arranged from newest to oldest.

Author: Elena Kagan

When an expert in a criminal trial conveys an absent analyst's statements in support of their opinion, and the statements provide that support only if true, the statements come into evidence for their truth. If those statements are also testimonial, the Confrontation Clause will bar their admission.

Author: Clarence Thomas

The Confrontation Clause does not bar the admission of a non-testifying co-defendant's confession when the confession has been modified to avoid directly identifying the non-confessing co-defendant, and the court offers a limiting instruction that jurors may consider the confession only with respect to the confessing co-defendant.

Author: Neil Gorsuch

The Sixth Amendment right to a jury trial, incorporated against the states by the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense.

Author: Ruth Bader Ginsburg

The Sixth Amendment's speedy trial guarantee does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges.

Author: Samuel A. Alito, Jr.

The Confrontation Clause does not necessarily bar the introduction of all out-of-court statements that support the prosecution's case. Instead, a court asks whether a statement was given with the primary purpose of creating an out-of-court substitute for trial testimony.

Out-of-court statements that are related by an expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause.

If an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable, and the accused has had a prior opportunity to confront that witness.

Author: Sonia Sotomayor

An identification and description of a shooter and the location of a shooting were not testimonial statements for Confrontation Clause purposes because they had a primary purpose to enable police assistance to meet an ongoing emergency.

Author: Antonin Scalia

Affidavits reporting the results of forensic analysis are testimonial, rendering the affiants “witnesses” subject to the defendant's right of confrontation under the Sixth Amendment.

Author: David Souter

A criminal defendant's initial appearance before a magistrate judge, where they learn the charge against them and their liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger the attachment of the Sixth Amendment right to counsel.

Author: Stephen Breyer

The Constitution does not forbid states from insisting on representation by counsel for people competent enough to stand trial but who suffer from severe mental illness to the point that they are not competent to conduct trial proceedings by themselves.

A trial court's erroneous deprivation of a criminal defendant's choice of counsel entitles them to reversal of their conviction.

Statements are testimonial for Confrontation Clause purposes when the circumstances objectively indicate that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

When testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation.

Author: Sandra Day O’Connor

The right to confront accusatory witnesses may be satisfied without a physical, face-to-face confrontation at trial only when the denial of such a confrontation is necessary to further an important public policy, and only when the testimony's reliability is otherwise assured.

A screen placed between the defendant and the complaining witnesses, which blocked the defendant from their sight, violated the defendant's Sixth Amendment right to confront the witnesses against him.

The Confrontation Clause guarantees an opportunity for effective cross-examination but not successful cross-examination. It is satisfied when the defendant has a full and fair opportunity to bring out the witness' bad memory and other facts tending to discredit their testimony.

The Confrontation Clause is not violated by the admission of a non-testifying co-defendant's confession with a proper limiting instruction when the confession is redacted to eliminate not only the defendant's name but also any reference to their existence.

Author: Lewis Powell

When the state obtains incriminating statements from the accused after the right to counsel has attached, a defendant does not make out a violation of the right to counsel simply by showing that an informant reported their incriminating statements to the police. Instead, the defendant must demonstrate that the police and their informant took some action beyond merely listening that was designed deliberately to elicit incriminating remarks.

While a defendant has no right to a jury composed in whole or in part of persons of their own race, the Equal Protection Clause guarantees the defendant that the state will not exclude members of their race from the jury venire on account of race, or on the false assumption that members of their race as a group are not qualified to serve as jurors. In addition, the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant.

Author: William Rehnquist

A criminal defendant states a violation of the Confrontation Clause by showing that they were prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness. However, the constitutionally improper denial of a defendant's opportunity to impeach a witness for bias is subject to harmless error analysis. Whether an error is harmless depends on factors such as the importance of the witness' testimony, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony on material points, the extent of cross-examination otherwise permitted, and the overall strength of the prosecution's case.

The Sixth Amendment becomes applicable only when the government's role shifts from investigation to accusation through the initiation of adversary judicial proceedings. Also, Miranda should not be extended to require the reversal of a conviction if the police are less than forthright in their dealings with an attorney or if they fail to tell a suspect of an attorney's unilateral efforts to contact them.

Author: Warren Burger

The Sixth Amendment right of a criminal defendant to assistance of counsel is not violated when an attorney refuses to cooperate with the defendant in presenting perjured testimony at their trial.

Author: William Brennan

The right to assistance of counsel attaches at critical stages in the criminal justice process, at which the results might well settle the accused's fate and reduce the trial itself to a formality.

The Sixth Amendment right to counsel is the right to the effective assistance of counsel, and the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or setting aside of a death sentence requires that the defendant show that counsel's performance was deficient and that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.

By intentionally creating a situation likely to induce the accused to make incriminating statements without the assistance of counsel, the government violated his Sixth Amendment right to counsel, and the resulting statements should not have been admitted at trial.

The Sixth and Fourteenth Amendments require that no indigent criminal defendant be sentenced to a term of imprisonment unless the state has provided them with the right to assistance of appointed counsel in their defense. However, these Amendments do not require a state trial court to appoint counsel for a criminal defendant who is charged with a statutory offense for which imprisonment on conviction is authorized but not imposed.

Author: Potter Stewart

The Sixth Amendment right to counsel means at least that a person is entitled to a lawyer's help at or after the time that judicial proceedings have been initiated against them. To show a waiver of the right to the assistance of counsel, the state must prove an intentional relinquishment or abandonment of a known right or privilege.

The Sixth Amendment guarantees that a defendant in a criminal trial has an independent constitutional right of self-representation. They may defend themselves without counsel when they voluntarily and intelligently elect to do so.

Author: Byron White

The requirement that a jury be selected from a representative cross-section of the community is fundamental to the jury trial guaranteed by the Sixth Amendment. This requirement is violated by the systematic exclusion of women from jury panels.

The right of confrontation is paramount to a state policy of protecting juvenile offenders, and any temporary embarrassment to a witness by the disclosure of their juvenile court record and probation status is outweighed by the defendant's right effectively to cross-examine a witness.

Author: Harry Blackmun

The Sixth Amendment does not grant an accused the right to have counsel present when the government conducts a post-indictment photographic display, containing a picture of the accused, for the purpose of allowing a witness to attempt an identification of the offender.

A defendant's constitutional right to a speedy trial cannot be established by any inflexible rule. It must be determined on an ad hoc balancing basis in which the conduct of the prosecution and the defendant are weighed. The court should assess factors such as the length of the delay, the reason for the delay, the defendant's assertion of their right, and prejudice to the defendant.

Author: William O. Douglas

The right of an indigent defendant in a criminal trial to the assistance of counsel is not governed by the classification of the offense or by whether a jury trial is required.

A showup after arrest, but before the initiation of any adversary criminal proceeding, is not a criminal prosecution at which the accused as a matter of absolute right is entitled to counsel.

The Confrontation Clause of the Sixth Amendment is not violated by admitting a declarant's out-of-court statements as long as they are testifying as a witness at trial and are subject to full cross-examination.

The conviction of a defendant at a joint trial should be set aside on Confrontation Clause grounds when a co-defendant's confession inculpating the defendant was introduced as evidence against the co-defendant during the trial, even though the jury was instructed that the confession should be disregarded in determining the defendant's guilt or innocence.

The Fourteenth Amendment guarantees a right to a jury trial in all criminal cases that would come within the Sixth Amendment guarantee of trial by jury if they were tried in a federal court. Crimes carrying possible penalties up to six months do not require a jury trial if they otherwise qualify as petty offenses.

The Sixth Amendment guarantees an accused the right to counsel at any critical confrontation by the prosecution at pre-trial proceedings at which the results might well determine their fate, and at which the absence of counsel might derogate from their right to a fair trial. A post-indictment lineup is a critical prosecutive stage at which an accused is entitled to the aid of counsel.

Author: Hugo Black

The right granted to a defendant by the Sixth Amendment to confront the witnesses against them, which includes the right of cross-examination, is a fundamental right essential to a fair trial and is made obligatory on the states by the Fourteenth Amendment.

Author: Arthur Goldberg

When a police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect in police custody who has been refused an opportunity to consult with their counsel and has not been warned of their constitutional right to keep silent, the accused has been denied the assistance of counsel, and no statement extracted by the police during the interrogation may be used against them at trial.

Incriminating statements deliberately elicited by federal agents from a defendant in the absence of their attorney deprived them of their right to counsel under the Sixth Amendment and could not be used as evidence against them at their trial.

Suppression by the prosecution of evidence favorable to an accused who has requested it violates due process when the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

The right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial.

Author: Felix Frankfurter

Involuntary verbal confessions are inadmissible in a criminal trial under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community's sense of fair play and decency.

Author: Owen Josephus Roberts

Under the circumstances, the refusal of a state court to appoint counsel to represent an indigent defendant at a trial in which he was convicted of robbery did not deny him due process of law in violation of the Fourteenth Amendment. (This decision was overruled by Gideon v. Wainwright below.)

Author: Frank Murphy

The right to have the assistance of counsel is too fundamental to be made to depend upon nice calculations by courts of the degree of prejudice arising from its denial.

The right to assistance of counsel may be waived, but the waiver must be intelligent. Whether there was a waiver must depend on the particular facts and circumstances, including the background, experience, and conduct of the accused.

Author: George Sutherland

The right of the accused, at least in a capital case, to have the aid of counsel for their defense is one of the fundamental rights guaranteed by the Due Process Clause of the Fourteenth Amendment. This includes the right to have sufficient time to advise with counsel and prepare a defense.

Author: Oliver Wendell Holmes, Jr.

A trial for murder in a state court in which the accused are hurried to conviction under mob domination without regard for their rights is without due process and void.

Author: William Howard Taft

The provisions of the Constitution guaranteeing a jury trial in all criminal prosecutions do not apply to a territory belonging to the U.S. that has not been incorporated into the Union, such as Puerto Rico.

Author: William Strong

When a state law secures to every white man the right of trial by a jury selected from and without discrimination against his race, and at the same time permits or requires such discrimination against the colored man because of his race, the latter is not equally protected by law with the former.

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Stanford University

Stanford Health Policy is a joint effort of the Freeman Spogli Institute for International Studies and the Stanford School of Medicine

A Look at the Supreme Court Ruling on Vaccination Mandates

• Michelle Mello ,
• William B. Gould

The Supreme Court on Thursday struck down a Biden administration mandate that large businesses require their employees to either be vaccinated or tested once a week for the coronavirus. In a 6-3 order, the justices blocked an Occupational Safety and Health Administration (OSHA) emergency rule for businesses with more than 100 employees — one that would have impacted more than 80 million workers.

The justices did, however, allow a vaccination mandate by the Centers for Medicare and Medicaid Services for health-care workers at some 76,000 federally funded facilities to stand.

“Today’s decision by the Supreme Court to uphold the requirement for health care workers will save lives: the lives of patients who weeks care in medical facilities, as well as the lives of doctors, nurses, and others who work there,” Biden said. “At the same time, I am disappointed that the Supreme Court has chosen to block common-sense, life-saving requirements for employees at large businesses that were grounded squarely in both science and law.”

OSHA had estimated that the ruling for large businesses would have saved more than 6,500 lives and prevented 250,000 hospitalizations in the next six months.

Michelle Mello , a professor of health policy in the School of Medicine’s Department of Health Policy and professor of law at Stanford Law, explains the legal and health implications of the two rulings. William B. Gould , a professor (emeritus) who specializes in labor law at Stanfor Law, takes a deep look at the OSHA regulations.

Though they struck down the mandate for large companies, they allowed the more limited one requiring health-care workers at federally funded facilities to be vaccinated. Don’t some of those large companies also receive federal funding or tax breaks and subsidies? Or is it that comparing apples to oranges?

Mello: These seem like similar situations: both cases involved agencies flexing their muscle to require the organizations they regulate to do something, and both turned on the Supreme Court’s reading of how broad a grant of power Congress intended to give the agencies. But legally, that’s where the similarity ends. The legal authorities marshaled to impose the mandates were quite different.

In the case involving the Center for Medicare and Medicaid Services’ (CMS’s) rule that workers in health-care facilities get vaccinated, the agency was acting through its authority to impose conditions on facilities’ participation in the Medicare and Medicaid programs.  If you’re a hospital and you want to bill these programs for services you provide to beneficiaries, you must do a lot of things to prove you’re set up to provide safe care. The description Congress gave of what CMS can require as a condition of participation is broad, and CMS has long required other things to prevent transmissions of communicable diseases and infections.

In the case involving the Occupational Health and Safety Administration’s (OSHA’s) rule that large employers ensure that their employees are either vaccinated or get tested regularly, the agency was using its authority under a statute called the Occupational Safety and Health Act of 1970 to regulate workplace safety.  The scope of OSHA’s authority under this law doesn’t have anything to do with whether the employer gets federal funding or not (the Biden Administration imposed a separate rule for employers, like Stanford University, that are federal contractors). And a majority of the Supreme Court justices read OSHA’s authority under that statute as really quite narrow.

So why didn’t the Court find that this was a workplace safety issue that OSHA could address with a vax-or-test requirement?

Mello: Basically, the majority said Congress only intended to give OSHA the power to address hazards that are confined to the workplace setting. They distinguished COVID as being in the category of “day-to-day dangers that all face,” likening it to risks like crime and air pollution. They were willing to acknowledge that some workplaces might have such an elevated risk of COVID transmission as to make COVID an occupational hazard (for example, labs working with the virus, or highly crowded, cramped environments), but said OSHA’s rule swept in nearly all workplaces — and so went much too far.

What’s driving the majority’s stance is concern that unelected officials are making decisions with sweeping implications — decisions that in our democratic system must rest with more accountable officials. In other words, if Congress wants to do something this big, it needs to do it directly or state very clearly that an agency is allowed to do it. 

The three dissenters in the case don’t disagree with that principle, but think the majority engaged in some contorted thinking to reach the conclusion that Congress didn’t give OSHA the authority to address COVID.  They point out that the statute makes no distinction between hazards that are confined to the workplace and those that also exist outside it. Fires and unsafe drinking water are also hazards workers may encounter off the job, for example, but that doesn’t mean they don’t still fall within OSHA’s purview. And, they note, OSHA’s rule does exempt workplaces where the risk of COVID transmission is low, so it’s not overbroad.

Has OSHA issued mandates like this before? 

Gould:  This is not the first time that OSHA has ventured into this realm. It has undertaken three major initiatives in the past. One was at the time of the HIV crisis when it provided for regulation of so-called blood pathogens, with regard to HIV, hepatitis B and hepatitis C. It also provided rules, which have, for example, imposed requirements for employers to allow workers to have their own drinking cups and drinking facility so that they don’t share with one another and don’t promote the possibility of infectious disease. That was done in construction. And in the area of agriculture, they also devised rules designed to protect workers against dust and heat.

What these rules all have in common, including the one that the Court just struck down, is that they deal with the problems of infectious diseases and they deal with problems that arise both out of the workplace and in the workplace. I mention that because in the discussion and the oral argument, and during the Trump administration that preceded the Biden administration, much of the attention was focused upon what is unique to the workplace—and that OSHA only had jurisdiction in that area.

“Underlying everything else in this dispute is a single, simple question: Who decides how much protection, and of what kind, American workers need from Covid-19?" the three justices who believed the mandate should have been upheld said in their dissent. "An agency with expertise in workplace health and safety, acting as Congress and the president authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?” 

Is this the crux of the case? Does OSHA have the right to mandate such regulations?

Mello: It’s right to say that the core issue here is: Who decides? Indeed, three of the conservative justices framed it in the same way: “The question before us is not how to respond to the pandemic, but who holds the power to do so. …[T]hat power rests with the States and Congress, not OSHA.” 

But I think it’s also fair to call out the justices in the majority for usurping the roles of both Congress and OSHA through their bizarre reading of the statute. Most people will find it surprising that (even as they don masks to hear oral arguments) these justices don’t consider COVID a workplace hazard. Most members of Congress will as well, I suspect! After all, Congress has already instructed OSHA to do other things to fight COVID in the workplace.

Gould:  I think that OSHA has the authority to do it. This is the first time, however, that OSHA has been presented with a problem quite like this. A wide variety of arguments have been put forward to say that OSHA does not have the authority. Chief Justice Roberts noted in oral argument that this problem didn’t exist in 1970 when the statute was passed. Well, of course, we know that all kinds of problems don’t exist at the time when statutes are passed. That’s why we have to have agencies and courts and lawyers and law professors to address changing circumstances—acknowledging that we have new problems that pose new challenges to statutory interpretation.

How much of a setback is this for the national efforts to get to the other side of this pandemic? If the court had ruled the other way, would the mandates/testing really have made a difference considering one-third of the country are adamantly opposed to vaccines?

Mello: It’s definitely a setback. We don’t yet have data on the effect of employer mandates from systematic studies, but reports have been accumulating from different companies showing high levels of compliance. There are certainly some people who will quit their jobs to seek employment in companies not subject to mandates. But many others, at the end of the day, are willing to go along if their jobs are at stake. A national poll conducted in November 2021 found that among the unvaccinated, a little over half said they would “definitely not” get the vaccine but the remainder were more open to it.

It’s important to note that the Court’s opinion doesn’t say employees can’t be required to take the vaccine. It just says OSHA can’t require it under this particular statute. Congress can require it, or states can require it for worksites within their borders. In many states, cities and counties could as well. And in most states, employers can choose it require it on their own. I would expect some of these actors will step in to fill the vacuum left by the Court’s decision. 

Aren’t big companies regulating for themselves anyway?

Gould: You know, Tyson has negotiated a collective bargaining agreement with United Food and Commercial Workers imposing vaccination, as has AT&T, Boeing, and a number of major companies. So large companies in the fortune 500 have gone ahead on their own to require vaccinations. The Houston Medical Hospital, where the first round of litigation took place, also imposed vaccination—and were exhibit number one in the argument for OSHA because very few people resigned because of the requirement of vaccination.

So that’s the big concern for employers—that staff will resign if forced to vaccinate? 

Gould: Oh yes. And that looms large, at least in the appendices and the exhibits that have been filed in these cases…that we’re not going to be able to function effectively because we’re going to lose our workers. But I don’t think many of the big companies filed amici. That’s the position of the states that are hostile to President Biden, and about half the states of the Union signed on to a brief challenging this rule.

So, one of the reasons the employers are so worried about vaccine mandates is that they are afraid of losing workers and that fits into a bigger trend going on during the pandemic, doesn’t it? With respect to what people are calling the great resignation, where people are reportedly leaving their jobs in large numbers. What do you make of that?

Gould: Well, I think that the great resignation, as it has come to be called, does fit into this. Workers are increasingly dissatisfied and increasingly hesitant about taking up particular kinds of work. And this hesitancy has been expressed on behalf of and by so called essential workers, workers who have been involved on the front lines of the pandemic. Here we’re speaking of workers in medical facilities for instance, who are part of the other Supreme Court case that involved the government’s authority to require vaccination amongst employees of medical facilities who have contact with patients.

But essential workers are now more widely understood to be a broad category—including employees who have a lot of contact with the public and also those who have been traditionally unorganized and unrepresented, so more vulnerable not only in terms of their exposure to the virus, but also more vulnerable in the workplace, generally, where they are so called marginalized workers who have had very little union representation. And we see now the unions are attempting, in some measure, to either organize such workers or to represent them more effectively, particularly here in California, where the food and commercial workers, for instance, have proposed legislation that provides for various protections for workers in groceries and supermarkets. So not only first protectors such as EMT, police, and fire, but also bus drivers and nursing home attendants and the like.

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