FDR TRIES TO "PACK" THE SUPREME COURT

We are under the Constitution, but the Constitution is what the judges say it is. . . .

—Charles Evans Hughes (Chief Justice of the United States, 1930–1941) Unlike Congress or the presidency, the Supreme Court is not supposed to be a "political" institution. It must remain neutral in order to settle legal issues, interpret laws, and decide the meaning of the Constitution. Supreme Court justices should not allow their personal or political views to color their decisions. Neither should they permit themselves to be influenced by presidents, other politicians, or popular public opinion. To help assure the justices' independence, the Constitution provides that they serve life terms unless they resign, retire, or are removed for misbehavior.

Between the creation of the Supreme Court in 1789 and the Civil War, the court found only two acts of Congress to be unconstitutional. During the next 50 years, the court challenged laws passed by Congress only a half-dozen times. But then, following the election of President Franklin D. Roosevelt in 1932, the Supreme Court seemed to take aim at his New Deal program, which had been designed to combat the effects of the Great Depression.

In 1935, the "nine old men" (as the Supreme Court justices were then sometimes called) unanimously ruled three times against FDR and his New Deal. One of the decisions declared that the National Industrial Recovery Act, a major New Deal effort to lift the country out of the Depression, was unconstitutional. The following year, the court held that several more of FDR's economic recovery laws violated the Constitution. In addition, the court overturned some state reforms, like New York's minimum-wage law for women. Some of these Supreme Court rulings were decided by a 5–4 vote. In these cases, the opinion of only one justice sealed the fate of laws and programs affecting millions of Americans.

The series of anti-New Deal decisions by the Supreme Court angered President Roosevelt and prompted him to attempt to reform the federal court system itself. This included a so-called "court-packing" proposal that would have enabled FDR to appoint an additional six justices to the Supreme Court. Suddenly, the non-political branch of the federal government was caught up in an intense and bitter national political debate. The Supreme Court would never be the same again.

"Nine Old Men"

When the three unanimous Supreme Court rulings against New Deal programs were announced on May 27, 1935, New Dealers called it "Black Monday." Speaking with reporters, Roosevelt lashed out against the court, complaining of its "horse-and-buggy" mentality. Clearly, he believed that the justices were locked into a view of the Constitution that did not take into account the economic crisis then facing the nation. In the months that followed, FDR's fears grew that the Supreme Court would totally gut the New Deal, including such landmark legislation as the Social Security Act and the National Labor Relations Act.

At this time, the nine justices on the Supreme Court were actually divided into roughly three groups. Justices Van Devanter, McReynolds, Sutherland, and Butler made up the conservative wing. These men viewed the Constitution as the guardian of property and the capitalist system. Justice Sutherland once commented that, "the meaning of the Constitution does not change with the ebb and flow of economic events." On the other hand, the three liberals on the Court, Justices Brandeis, Cardozo, and Stone, saw the need to interpret the Constitution in the light of new realities and problems. In between these two groups were two moderates: Justice Owen Roberts and Chief Justice Charles Evans Hughes.

Although appointed by a Republican (Hoover), Chief Justice Hughes tended to vote with the liberals in cases concerning New Deal legislation. This left a divided court with Justice Roberts providing the "swing vote." In 1935 and 1936, Roberts sided with the four conservatives to make up the five-vote majority that struck down a number of New Deal laws.

President Roosevelt and his supporters were also critical of the advanced ages of many justices. Six of the "nine old men" were 70 or older. Justice Brandeis (who happened to be one of the liberals) turned 80 in 1936. Many New Dealers resented the ability of a small group of conservative-minded men, all born before 1880, to block the will of the Roosevelt administration, Congress and the majority of the U.S. electorate.

The Court Reform Bill

In fact, previous conservative Republican presidents had appointed a large majority of all federal court judges (who also served life terms). In 1936, only 28 percent of the 266 federal judges were Democrats. Moreover, during his four years in office, FDR had yet to name one Supreme Court justice.

Shortly after "Black Monday," Roosevelt began talking privately with his advisers about how to curb the power of the Supreme Court. He asked his attorney general, Homer Cummings, to study the matter. Cummings and others first concentrated their efforts on a possible constitutional amendment. In November 1936, Roosevelt won re-election by carrying all but two states. Although FDR did not make the Supreme Court an issue in his campaign, he nevertheless considered his landslide election as a mandate for federal court reform. He knew he had to act quickly since many New Deal laws passed during his first term were headed for the Supreme Court.

Working quietly, Attorney General Cummings drafted a bill that, on the surface, appeared to streamline the entire federal court system. But the real target was the Supreme Court. Cummings proposed that Congress pass a law granting the president the power to nominate an additional judge for every federal judge who, having served a minimum of 10 years, did not resign or retire within six months after reaching age 70. In effect, this would enable FDR to add up to six more justices to the Supreme Court as well as nearly 50 more lower-court federal judges. Of course, the Senate would still have to approve his nominations.

FDR sent his court-reform bill to Congress on February 5, 1937. In his accompanying message, Roosevelt stated that the judiciary should be reorganized "in order that it also may function in accord with modern necessities." He pointed out that the number of justices on the Supreme Court had been changed by Congress six previous times. The president argued that the federal courts were crowded with pending cases causing costly delays. He also addressed the issue of "aged or infirm judges" and the need for "younger blood": A lowered mental or physical vigor leads men to avoid an examination of complicated and changed conditions. Little by little, new facts become blurred through old glasses filled, as it were, for the needs of another generation . . .

The "Court-Packing" Fight

Much to the surprise of President Roosevelt, his court-reform plan came under serious attack. The press soon began to refer to it as FDR's "court-packing" scheme. The president was compared with Hitler in seeking dictatorial powers. Even some liberal New Deal Democrats in Congress voiced their reservations.

Supporters of the bill decided to concentrate their efforts in the Senate. Appearing before the Senate Judiciary Committee, Attorney General Cummings presented the administration's case. "The proposed increase in the number of judges is not for the purpose of enslaving the judiciary," he said. "The purpose is to rejuvenate the judicial machinery, to speed justice, and to give to the courts men of fresh outlook who will refrain from infringing upon the powers of Congress."

But most of those testifying before the Judiciary Committee rejected FDR's plan as little more than a cover to pack the Supreme Court with liberal justices. The plan, they claimed, would make the court more political, thus undermining its independence.

Critics argued that since there were no age regulations placed on the president or members of Congress, there should be none on federal judges either. Others claimed that it was not the Supreme Court justices who were overturning Roosevelt's New Deal laws, but the Constitution itself.

Perhaps the most persuasive witness before the Senate Judiciary Committee never appeared in person. This was Chief Justice Hughes who entered the political fray by submitting a letter that was read to the committee by Senator Burton K. Wheeler (D-Mont.). Hughes stated in his letter that the Supreme Court "is fully abreast of its work." He rejected the notion that more justices would make the court more efficient. The chief justice argued, "There would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide."

"The Switch in Time"

In the midst of the "court-packing" fight, a series of unexpected events occurred that finally sank FDR's court-reform bill. On March 29, 1937, the Supreme Court reversed itself and upheld a state minimum-wage law very similar to laws that the court had previously struck down. This case was decided by another 5–4 vote. But this time the four conservative justices were in the minority. Shortly afterward, the Supreme Court ruled as constitutional both the Social Security Act and the National Labor Relations Act, two key pieces of New Deal legislation. These cases, too, were decided by slim 5–4 majorities.

For some reason, Justice Owen Roberts decided to switch sides in these cases, thus providing the three liberals along with Chief Justice Hughes a bare one-vote majority. These decisions weakened the argument that younger, more liberal justices were needed on the Supreme Court. The press quickly called the sudden shift by Justice Roberts "the switch in time that saved nine." In the meantime, one of the conservative justices announced his intention to retire, thus giving FDR his first opportunity to make a Supreme Court appointment.

Despite these developments, Roosevelt refused to withdraw his court-reform bill. While he did agree to compromise, FDR's chances of getting the bill through Congress began to look poor. The Senate Judiciary Committee, although dominated by Democrats, issued a report that recommended against the president's proposal. "This bill," the report declared, "is an invasion of judicial power such as has never before been attempted in this Country."

The last hope of the bill's supporters rested with the persuasive powers of the Senate Democratic Majority Leader, Joe Robinson. When he died suddenly before the full Senate voted, the court-reform bill was doomed. By late July 1937, Roosevelt gave in and agreed to drop the bill. As it turned out in the years that followed, the Supreme Court upheld virtually all of FDR's New Deal reforms. Over the span of his remaining three terms in office, Roosevelt got to name a total of eight new justices to the Supreme Court. In the end, he did get to "pack" the court with men of his choosing.

This "Roosevelt Court" took a more liberal direction in interpreting the Constitution, at least for a while. But the question remains, even today, whether the Supreme Court can truly be an independent body completely separated from political influences.

For Discussion and Writing

1.) How is decision making by the Supreme Court supposed to be different from that exercised by Congress and the president?

2.) Why do you think Justice Roberts switched to the liberal side of the Supreme Court in 1937?

3.) Who do you think won the "court-packing" fight? Explain.

For Further Information

Constitutional Issues: Separation of Powers: This web page explores the issue of separation of powers through the story of FDR’s "court-packing" scheme. FDR: A PBS biography covering FDR’s early years as president, including an account of his "court-packing" scheme.

Reforming the Supreme Court

During the "court-packing" episode, a number of different Supreme Court reforms were discussed. This activity will enable the class to decide if any of these reforms should be adopted today. In small groups, students should discuss each proposal and then vote whether it should be adopted today. Every group should prepare as many arguments as possible to support its decision on each of the proposed reforms. When all the groups are finished, the class should meet to discuss, in turn, each Supreme Court reform with each group reporting its decision and supporting arguments. Students taking a minority position within a group should also have a chance to speak. After all the Supreme Court reforms have been discussed, the class should vote on them.

Reform Proposals

1.) An act of Congress putting into effect the court-reform plan proposed in 1937 by President Roosevelt

2.) A constitutional amendment taking away entirely the power of the Supreme Court to declare acts of Congress unconstitutional

3.) A constitutional amendment requiring a unanimous vote by the nine justices of the Supreme Court to declare acts of Congress unconstitutional

4.) A constitutional amendment limiting the length of Supreme Court justice terms to 10 years

5.) A constitutional amendment requiring the retirement of Supreme Court justices at age 70.

SHOULD NATIONS HAVE THE RIGHT TO KIDNAP CRIMINAL SUSPECTS?

In 1960, Israeli Secret Service agents found ex-Nazi leader Adolf Eichmann hiding in Argentina and took him captive. Eichmann has been responsible for organizing the deportation of European Jews to Nazi death camps where millions died during World War II. The Israeli agents transported Eichmann to Jerusalem where he was put on trial. Eichmann challenged the right of the Israeli court to try him because he had been kidnapped and illegally taken to Israel. But the Israeli prosecutor pointed to a number of American and British cases to argue that it does not matter if a defendant is kidnapped from a foreign country. The Israeli court agreed, and Eichmann's trial proceeded. Later, found guilty by an Israeli court in 1962, he was executed by hanging. Thirty years later, the U.S. Supreme Court faced a similar situation involving a criminal suspect, a Mexican citizen, who had been seized by U.S. and forced to stand trial in this country. Like Eichmann, the Mexican defendant challenged the right of the court to try him. The Supreme Court had to decide this issue. But in doing so, it touched on the broader question of whether nations should have the right to seize criminal suspects in foreign countries.

A Murder and a Kidnapping

Special Agent Enrique Camarena was a member of the U.S. Drug Enforcement Agency (DEA) operating in Guadalajara, Mexico. Camarena was working in a cooperative project with the Mexican government to capture top drug traffickers. On February 7, 1985, members of the Guadalajara drug cartel kidnapped him. Taking him to a house in the city, they brutally tortured him to death while questioning him about DEA activities.

Back in the United States, DEA and other U.S. government officials demanded to participate in the murder investigation. U.S. officials had little faith in the Mexican police, believing that they had been bribed by the drug cartel.

American DEA leaders began investigating the involvement of Dr. Humberto Alvarez-Machain. Alvarez reportedly had been hired by the Guadalajara drug traffickers to provide medical services as needed. The DEA claimed it had evidence that Alvarez injected Camarena with a stimulant to keep him conscious during the torture. On January 31, 1990, a Los Angeles federal grand jury indicted Alvarez for his alleged part in the Camarena killing. But Alvarez was in Mexico.

DEA agents in charge of the Camarena offered their Mexican a $50,000 reward for delivering Alvarez to the United States. A group of about a half-dozen former and current Mexican police officers agreed to arrange the abduction. This team of Mexican kidnappers, as determined later by a U.S. federal court, had actually became paid agents of the U.S. government.

On April 2, 1990, members of the team kidnapped Alvarez at gunpoint from his Guadalajara medical office.

They took him to a house where he claimed he was tortured and injected with some substance. The next day, they flew him in a private plane to the El Paso, Texas, airport where DEA agents arrested him.

Mexico protested the kidnapping as a violation of its territory and laws. Mexican police, however, continued investigating Camarena's murder and eventually made a number of other arrests. In the meantime, Alvarez was brought before a federal district court in Los Angeles. The judge, however, ruled that the kidnapping of Alvarez violated the U.S. extradition treaty with Mexico and, therefore, he should be returned home. An extradition treaty is an agreement between nations to follow certain procedures when one country is seeking a criminal suspect in the other's territory. The U.S. government appealed this ruling all the way to the Supreme Court. Strongly opposed to the DEA actions, the Mexican government filed an amicus curiae ("friend of the court") brief that argued the kidnapping was a violation of international law.

Before the Supreme Court

On June 15, 1992, the U.S. Supreme Court decided by a 6–3 majority that the kidnapping of Dr. Alvarez from Mexico did not prohibit his trial in a U.S. court. Writing for the majority, Chief Justice William H. Rehnquist cited an 1886 Supreme Court decision that the authority of a court is not weakened if a defendant is brought before it as a result of "forcible abduction." [Ker v. Illinois, 119 U.S. 436 (1886)] Rehnquist went on to hold that the U.S. extradition treaty with Mexico was not a factor in the case because it "says nothing about the obligations of the United States and Mexico to refrain from forcible abductions. . . ." [United States v. Humberto Alvarez-Machain, 112 S.Ct. 2188 (1992)]

Writing in dissent, Justice John Paul Stevens pointed out that the 1886 case used by Chief Justice Rehnquist to justify his opinion actually involved a private bounty hunter, not U.S. government agents. Justice Stevens found this difference to be important. In the Alvarez's kidnapping, it was agents of the U.S. government, not a private citizen without government support who illegally violated Mexican territory. By being involved in the kidnapping Stevens concluded, the United States violated the extradition treaty with Mexico. The treaty, he said, "would serve little purpose if the requesting country could simply kidnap the person."

Justice Stevens called the majority opinion a "monstrous decision" that disregards the rule of law and sets a poor example for other countries to follow.

Negative Reactions

Many countries, especially in Latin America, condemned the Supreme Court's ruling. Mexico announced that it was suspending a major part of its role in cooperating with the United States to stop drug traffickers.

Argentine President Carlos Menem called the decision "a horror." Canada declared that it would not tolerate similar abductions from its soil. In August 1992, a special committee of the Organization of American States (of which the United States is a member) criticized the Alvarez-Machain decision as ignoring "the fundamental principle of international law, namely, respect for the territorial sovereignty of states."

A spokesman for the U.S. Department of State replied that the Alvarez-Machain decision did not "represent a `green light' for the United States to conduct operations on foreign territory." But the spokesman went on to say, "At the same time we are not prepared categorically to rule out unilateral action." He explained that in "extreme cases," like when another country protects a terrorist who has attacked Americans, a kidnapping may be justified as a matter of "self-defense."

In December 1992, Alvarez was finally put on trial in Los Angeles. But, in a final twist, the judge threw out the case after ruling that the prosecution's evidence was based on "the wildest speculation." Dr. Alvarez was then returned to Mexico.

For Discussion and Writing

Why do you think neither Israel nor the United States followed normal diplomatic procedures and, instead, resorted to kidnapping Adolf Eichmann and Humberto Alvarez-Machain? Do you agree or disagree with the kidnapping in each case? In the Alvarez-Machain Supreme Court decision, Chief Justice Rehnquist argued that since the extradition treaty with Mexico did not specifically prohibit the abduction of criminal suspects, the United States did not violate the treaty. Do you agree or disagree with his reasoning? Explain. Explain what your reaction would be to the following situation: Mexico decides to hire kidnappers in the United States to abduct DEA agents accused of setting up the kidnapping of Dr. Alvarez.

Should Nations Have the Right to Kidnap Criminal Suspects?

In this activity, the class will debate the question above from four viewpoints.

A. Divide the class into the following five role groups:

U.S. Drug Enforcement Agency (DEA), which will argue the "yes" side.

U.S. Department of State, which will also argue the "yes" side.

Attorneys Representing Humberto Alvarez-Machain, who will argue the "no" side.

Government of Mexico, which will also argue the "no" side.

Judges Representing World Opinion, who will listen to the debate, ask questions, and decide the question by majority vote.

B. Preparation: Each group should re-read the article carefully and meet in debating groups. Debating groups should find reasons and arguments supporting their viewpoints and try to anticipate the arguments of the other side. Judges should prepare questions to ask each debating group.

C. Debate:

Select one judge to act as chief judge to recognize speakers, watch the time, and announce the final decision on the debate question.

Give each debating group an equal amount of time to make an opening presentation.

After each group has made its opening presentation, each judge should have one or more questions prepared to ask the group.

After the judges have finished asking their questions, members of other groups may be recognized to ask questions or refute arguments.

At the end of the debate, each group should have one minute to make a closing argument.

D. Judgment:

The judges will meet to discuss and then vote on the debate question.

The chief judge will announce the judges' decision and all judges will then give reasons for their individual votes.

UPDATE ON THE SUPREME COURT

This article presents three cases decided during the Supreme Court's 1993–1994 term. An activity follows that lets students make their own decisions on these cases. Madsen et al. v. Women's Health Center In September 1992, a Florida judge issued an injunction (court order) forbidding anti-abortion protesters from trespassing on, blocking, or physically abusing persons attempting to use any abortion clinic in Brevard or Seminole County. Members of Operation Rescue and others to “close down abortion mills” issued this injunction in response to threats.

After the injunction was issued, several hundred people demonstrated outside an abortion clinic. Demonstrators attempted to speak and hand literature to people in cars entering the clinic's parking lot. Individual protesters shouted such things as, "Mommy! Don't Kill Me!" Protesters sang, chanted, played music from boom boxes, made speeches, and carried signs like, "Abortion Kills Children." The protest upset clinic clients, causing some to drive away and miss their appointments. Those who did enter the clinic for abortions were bothered by the noise outside and sometimes had to be heavily sedated to relieve their anxiety. In addition, employees of the clinic complained that they were harassed.

In response to a complaint from the clinic, the Florida judge issued an "amended injunction" that placed restrictions on the "pro-life" demonstrators. Among these restrictions, protesters could not: Demonstrate in a "buffer zone" extending 36 feet from the front of the clinic. This included the Public Street and sidewalks. Within a 300-foot zone, approach anyone seeking the services of the clinic unless that person indicated a desire to communicate. Sing, chant, whistle, shout, or use a horn or sound equipment on specified times when operations were taking place. Carry or show any signs observable from within the clinic during the same specified times.

Demonstrate, block entrances, or use sound equipment within 300 feet of the residences of clinic employees. QUESTION: DO ANY PARTS OF THE AMENDED INJUNCTION PLACE AN UNNECESSARY BURDEN ON THE "PRO-LIFE" PROTESTERS' FIRST AMENDMENT RIGHT OF FREE SPEECH?

ARGUMENTS

Judy Madsen and other anti-abortion protesters argued that the amended injunction was not aimed at their actions but at suppressing their beliefs and freedom of speech in violation of the First Amendment. The clinic's owners responded that the injunction did not place an "unnecessary burden" on the First Amendment, but it did serve a "significant state interest," which includes maintaining public safety. Board of Education of Kiryas Joel Village School District v. Grumet, et al. Satmar Hasidic Jews are a conservative religious group. They speak Yiddish, follow strict customs, and try to isolate themselves from the surrounding world. In the 1970s, some Satmars moved to Monroe, New York, set up a religious community, and formed the Village of Kiryas Joel. The boundaries of the village were drawn to include only property owned by Satmar families.

Most of the 5,000 or so children of the village attend yeshivas, private Jewish schools that teach religious as well as regular academic subjects. But special-education programs for deaf, blind, and other learning-disabled Satmar students are too expensive for the yeshivas. For a while, the learning-disabled students from Kiryas Joel attended special-education classes in nearby Monroe public schools. But public school students often ridiculed and harassed the Satmar children. Moreover, the public school exposed Kiryas Joel students to cultural influences that Satmars wanted to avoid.In 1989, Kiryas Joel parents petitioned the New York state legislature to pass a special law establishing a separate public school district to serve the Satmar learning-disabled children. The resulting Kiryas Joel Village School District consisted of one school with about 40 full-time and another 100 part-time special-education students.

The new district's boundaries fell entirely inside the village boundaries of Kiryas Joel. Only Satmar students attended this public school district, which was governed by a school board made up solely of Satmar Hasidic Jews from the village. Nevertheless, neither the district superintendent nor any of the teachers were members of the Satmar religion (which forbids college education).

Furthermore, none of the district's special-education classes included any religious instruction. QUESTION: DOES THE NEW YORK LAW SETTING UP A PUBLIC SCHOOL DISTRICT WITHIN THE VILLAGE OF KIRYAS JOEL VIOLATE THE FIRST AMENDMENT'S PROHIBITION ON LAWS "RESPECTING AN ESTABLISHMENT OF RELIGION"?

The New York State School Boards Association claimed that the special public school district created within the village of Kiryas Joel violated the Supreme Court's long-held "test of neutrality." This interprets the establishment clause of the First Amendment to mean that governments may not aid religion or favor one religion over another. The Kiryas Joel school district argued that the special law's only purpose was to provide for the special-education needs of a group of children who all happened to belong to the same religion; its purpose was not to aid or advance the Satmar religion. J.E.B. v. Alabama ex rel. T.B. During jury selection, each side in a case is given a certain number of "peremptory challenges." These challenges enable an attorney to excuse some of the prospective jurors without having to give a reason. All other potential jurors can only be excused for cause (a reason acceptable to the judge). J.E.B. v. Alabama ex rel. T.B. was a paternity case deciding whether James E. Bowman (J.E.B.) was the father of a child born to Teresa Bible (T.B.). During jury selection, the state used its peremptory challenges to excuse men. As a result, the state managed to secure an all-female jury. This jury found Bowman to be the father, and he was ordered to pay child support. QUESTION: DOES THE INTENTIONAL USE OF PEREMPTORY CHALLENGES TO EXCUSE PROSPECTIVE JURORS SOLELY ON THE BASIS OF GENDER VIOLATE THE EQUAL PROTECTION CLAUSE OF THE 14TH AMENDMENT?

Bowman argued that rejecting jurors solely on the basis of their gender violates the 14th Amendment's equal protection clause. Bowman referred to a 1986 Supreme Court case, which ruled that peremptory challenges violate the 14th Amendment when they are used to try to eliminate prospective jurors solely on the basis of their race. [Batson v. Kentucky, 476 U.S. 79 (1986)] Alabama responded that the purpose of the time-honored peremptory challenge is to give to lawyers the widest flexibility in excusing prospective jurors who may be biased. It is not unreasonable, the state argued, to assume that men would tend to be more sympathetic (and thus more biased) toward the alleged father in a paternity case.

For Discussion

Judy Madsen and the other anti-abortion protesters claimed that the amended injunction was not justified because they never violated the judge's first injunction. Based on the facts presented in the article, do you agree or disagree? Why? What made the Kiryas Joel Village School District different from other public school districts? What made it similar? Why do you think the state of Alabama wanted to eliminate men from the jury in James E. Bowman's paternity trial?

A C T I V I T Y

You Make the Decision

Divide the class into groups of about nine students. Each group will play the role of the U.S. Supreme Court. Each court will decide one of the cases presented in the article. (Note: The same case may be assigned to two courts.) After reading their assigned case, the justices discuss the case's question, vote on the question, and then write individual opinions. In their written opinions, the justices should refer to information from the case, the Constitution, and possibly other sources such as Supreme Court precedents. Each court will present its decision to the rest of the class. A chief justice should be selected by each court to summarize the facts of its case, state the question, and announce the vote of the justices. Each justice should then give reasons for his or her decision. Justices on the other courts may then ask questions or challenge the decision. [The actual results of the three Supreme Court cases may be found below.]

DECISIONS OF THE SUPREME COURT

Madsen et al. v. Women's Health Center, 62 U.S.L.W. 4686 (1994)

Delivering the opinion of the 6–3 majority, Chief Justice Rehnquist upheld parts 1 and 3 of the amended injunction while finding parts 2, 4, and 5 to be an "unnecessary burden" on the freedom of speech of the anti-abortion protesters. He stated that the two constitutional parts "imposed restrictions on petitioners incidental to their antiabortion message because they repeatedly violated the court's original order." Writing in dissent, Justice Scalia remarked that the abortion issue had claimed "its latest, greatest, and most surprising victim: the First Amendment." Board of Education of Kiryas Joel Village School District v. Grumet et al., 62 U.S.L.W. 4665 (1994)

Deciding 6–3 that the New York law violated the establishment clause of the First Amendment, the court (in an opinion by Justice Souter) agreed that the First Amendment allows the state to accommodate religion in certain situations (e.g. allowing release time for public school students to receive religious instruction). But in this case, it said, the government went over the line of neutrality. Justice Souter suggested several alternatives for providing for the special-education needs of the Satmar children, including a school operated by the nearby Monroe school system that might be located near one of the village yeshivas. In dissent, Justice Scalia found no evidence that the law favored the Satmar religion "as opposed to meeting distinctive secular [non-religious] needs or desires of citizens who happened to be Satmars."

J.E.B. v. Alabama ex rel. T.B., 114 S.Ct. 1419 (1994) the court decided 6–3 in favor of James E. Bowman. Justice Blackmun wrote that, as in the case of race, "the Equal Protection Clause prohibits discrimination in jury selection on the basis of gender, or on the assumption that an individual will be biased in a particular case for no reason other than the fact that the person happens to be a woman or happens to be a man." Dissenting, Chief Justice Rehnquist remarked that men and women differ biologically and in life experiences. Therefore, using peremptory challenges to dismiss all men or all women from juries in certain cases may be justified. [Note: James E. Bowman will now get a new paternity trial.]

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