Possible Effects of The Supreme Court Composition

This paper will discuss the effects of a change in the Supreme Court composition on two constitutional issues in controversial case law. These issues are equal protection and First Amendment speech cases The paper will attempt to deduce patterns in the cases described in order to predict how the cases would be decided in the future. The paper will look at certain cases involving the Equal Protection Clause, federal preemption of state laws, and free speech. The last section of the paper will discuss the issues facing the federal district court in the case challenging the constitutionality of Proposition 209.

The subissue in this area which will be examined is that of racial districting. Two important cases were decided in the 1990s concerning the constitutionality of racial districting: Shaw v. Reno and Miller v. Johnson. In Shaw, the Court held that white plaintiffs could bring a suit under the Equal Protection Clause challenging a reapportionment plan as "racial gerrymandering." The plan had been adopted with the intention of bolstering black voting strength by drawing unusually-shaped districts, including one which was 160 miles long and no wider than the interstate corridor which it followed for much of its length. Writing for the majority, Justice O'Connor said that where "redistricting legislation ... is so bizarre on its face that it is 'unexplainable on grounds other than race,'

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The political leanings of the justices are not necessarily determinative of any particular outcome, since some of the conservative justices have sided with free speech proponents. The justices have tended to base their votes upon the particular type of speech involved. With regard to low value speech, such as commercial speech, the Court has applied less than strict scrutiny. For commercial speech, for instance, the Court adopted a four-part test: (1) it must be determined whether the expression is protected by the First Amendment, meaning that it must concern lawful activity and not be misleading; (2) it must be determined whether the governmental interest is substantial; (3) if both the first and second requirements are met, it must be determined whether the regulation directly advances the governmental interest; and (4) it must be determined whether the regulation is the least restrictive alternative. In a 1995 decision, a 5-4 majority of the Court upheld a Florida Bar rule prohibiting lawyers from sending written communications to prospective clients for the purpose of obtaining professional employment when the communication concerns a personal injury action. Justice O'Connor, writing for the majority, said that the
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Approximate Word count = 2371
Approximate Pages = 9 (250 words per page)

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