Votes by Justices in Recent Landmark Supreme Court Decisions, 1989 to Present
Right to Bear Arms
Right to Bear Arms: District of Columbia v Heller (2008)

SCALIA

ROBERTS

ALITO

KENNEDY

THOMAS
5
TO
4

SOUTER

STEVENS

GINSBURG

BREYER
The Court ruled 5 to 4 that the Second Amendment is more than a right of states to maintain militias and does, in fact,  protect an individual's right to keep firearms in the home.  The Court struck down a District of Columbia firearms regulation without deciding precisely what types of gun regulations might be constitutional.  The Court has yet to decide whether the Second Amendment restricts state firearm regulations as well as regulations of the federal government.
Right of Privacy
Right to Abortion: Casey v Planned Parenthood of Pennsylvania (1992)

BLACKMUN

STEVENS

O'CONNOR

SOUTER

KENNEDY
5
TO
4


REHNQUIST

SCALIA

WHITE

THOMAS
The Court ruled 5 to 4 to affirm the central holding of Roe v Wade, that women have a right to have an abortion.  In so doing, three justices (Kennedy, O'Connor, and Souter) abandoned the rigid trimester framework of Roe and announced that states had a right to regulate in the field so long as the regulations placed no "undue burden" on the right of women to have an abortion.  Blackmun and Stevens would have affirmed Roe in its entirety.  The four dissenting justices would have overruled Roe.

"Partial-Birth" Abortion: Gonzales v Carhart (2007)

KENNEDY

ALITO

SCALIA

THOMAS

ROBERTS

5

TO
4

STEVENS

BREYER

GINSBURG

SOUTER
The Court, voting 5 to 4, upheld a federal law banning so-called "partial birth abortions" (which Congress declared where "never medically indicated") .    The Court, in an opinion by Justice Kennedy, did not rule out "as applied" challenges to the law.

Right to Die: Cruzan v Missouri Department of Health (1990)

REHNQUIST

O'CONNOR

WHITE

SCALIA

KENNEDY

5

TO
4

STEVENS

BLACKMUN

MARSHALL

BRENNAN
The Court upheld a Missouri law that disallowed the disconnection of a feeding tube to a patient in a persistent vegetative state unless the patient's preference for termination could be established by "clear and convincing evidence."  The four dissenters would not have allowed the state to set so high of standard for termination under the facts of the case.

Right to Intimate Relations: Lawrence v Texas (2003)

KENNEDY

STEVENS

SOUTER

GINSBURG

BREYER

5
TO
4

O'CONNOR

REHNQUIST

SCALIA

THOMAS
The Court, by a 5 to 4 vote, voted to overrule a 1986 decision and hold that the due process liberty clause protects the right of consenting adults to engage in sodomy.  The Court overturned the convictions of two gay men who violated a Texas statute criminalizing homosexual sodomy.  Justice O'Connor did not find a substantive due process violation, but would have found the ban on homosexual, but not heterosexual, sodomy to violate the equal protection clause.  The three dissenters (Rehnquist, Thomas, Scalia) would have upheld the Texas law.
Equal Protection
Gender Discrimination: United States v Virginia (VMI)(1996)

GINSBURG

STEVENS

KENNEDY

O'CONNOR

SOUTER

BREYER

REHNQUIST
7
TO
1


SCALIA
Justice Thomas recused himself
The Court, by a 7 to 1 vote, found that Virginia violated the equal protection clause by failing to provide to females an education substantially equal to that provided males at the Virginia Military Institute.  Virginia operated a military school for women, but the Court found that the curriculum and standards of the new school differed significantly from the program open to men at VMI.  The decision effectively opened VMI to women.  Justice Thomas, who had a son enrolled at VMI, did not participate in the case.

Affirmative Action: Grutter v Bollinger (2003)

O'CONNOR

STEVENS

SOUTER

GINSBURG

BREYER

5
TO
4

REHNQUIST

SCALIA

KENNEDY

THOMAS
The Court, by a 5 to 4 vote, upheld an affirmative action program used by the University of Michigan to determine admissions to its law school.  The Court held that it was permissible to give some preference to racial minorities as part of a larger program to enhance diversity in the student body.  The four dissenters believed that the program denied white applicants equal protection of the laws.

Vote Counting: Bush v Gore (2000)

REHNQUIST

O'CONNOR

SCALIA

KENNEDY

THOMAS

5
TO
4

BREYER

SOUTER

GINSBURG

STEVENS
The Court, on a 5 to 4 vote, decided to stop the recounting in 2000 presidential election in Florida, effectively giving Florida's electoral votes-- and with it, the election--to George W. Bush.  Five members of the Court found that the Florida Supreme Court's recount order, recounting only certain types of  ballots in only some of Florida's counties, violated the equal protection rights of Florida voters in other counties to have thier "overvotes" and "undervotes" treated the same way.  Two other justices, Breyer and Souter, also found the Florida Supreme Court's order to violate equal protection, but unlike the five justices in the majority, they would have allowed the recount to continue under new guidelines.
Religion Clauses
School Prayer: Lee v Weisman (1992)

KENNEDY

O'CONNOR

SOUTER

STEVENS

BLACKMUN

5
TO
4


SCALIA

REHNQUIST

WHITE

THOMAS
The Court, on a 5 to 4 vote, found that the decision of a public school principal to invite a member of the clergy to offer invocation and benediction prayers at a middle school graduated ceremony violated the clause of the Constitution that prohibits an "establishment" of religion.

10 Commandments on Public Ground: Van Order v Perry (2005)

REHNQUIST

SCALIA

KENNEDY

THOMAS

BREYER

5
TO
4


STEVENS

SOUTER

O'CONNOR

GINSBURG
The Court, on a 5 to 4 vote, held that the placement in front of the Texas State Capitol of a large stone monument engraved with the Ten Commandments did not constitute an "establishment of religion."  The Court noted that the monument, placed among a number of other monuments that did not have religious messages, had a primarily secular purpose of reminding people of the role religion played in shaping our national history.  The Court distinguished the Texas monument from a framed listing of the Ten Commandments in a county courthouse which the Court, on the same day and also by a 5 to 4 vote, said did constitute an establishment clause violation.  Justice Breyer was the swing vote in the two cases.

Free Exercise of Religion (Peyote Case): Employment Division v Smith (1990)

SCALIA

REHNQUIST

WHITE

STEVENS

KENNEDY

5
TO
4


O'CONNOR

BLACKMUN

MARSHALL

BRENNAN
The Court, on a 5 to 4 vote, overruled years of caselaw on the meaning of the free exercise clause and held that the enforcement of a neutral and generally applicable criminal law did not violate free exercise rights, even if someone's religious exercise was substantially burdened by the law.  In the three decades prior to this case, the Court had repeatedly said that the government must show a compelling state interest and narrowly tailored means when it substantially burdens religious exercise.  The case involved the question of whether unemployment benefits could be denied to a Native American who lost his job because he used peyote as part of a religious service.  Justice O'Connor concurred in the result, but disagreed that the Court should abandon its prior test.
Takings Clause
Taking Homes for a Private Developer: Kelo v City of New London (2005)

STEVENS

SOUTER

BREYER

GINSBURG

KENNEDY

5
TO
4


O'CONNOR

REHNQUIST

SCALIA

THOMAS
The Court, on a 5 to 4 vote, held that a city's plan to condemn homes in a residential neighborhood and give the acreage to a private developer for $1 for a 99-year lease to create an upscale development did not violate the Fifth Amendment's requirement that takings of property be for "a public use."  (Of course, as provided by the Fifth Amendment, the government had to provide "just compensation" for the taking.)
Cruel and Unusual Punishments Clause
Executing Minors: Roper v Simmons (2005)

KENNEDY

STEVENS

SOUTER

GINSBURG

BREYER
 
5
TO
4


REHNQUIST

O'CONNOR

SCALIA

THOMAS
The Court, on a 5 to 4, vote held that the execution of criminals for crimes commited when they were under 18 years of age offended "evolving standards of decency," and hence constituted "cruel and unusual punishment" in violation of the Eighth Amendment.

Beatings by Prison Guards: Hudson v McMillian (1992)

O'CONNOR

REHNQUIST

WHITE

STEVENS

BLACKMUN

KENNEDY

SOUTER

7
TO
2


SCALIA

THOMAS
The Court, on a 7 to 2 vote, reversed a Court of Appeals decision that held that beatings of prisoners by prison guards constitute cruel and unusual punishment only when the beating leaves the prisoner with a "significant injury," which had been defined as one leaving a permanent injury or requiring hospitalization.  The Court held that a beating of a Louisiana prisoner (which left loose teeth and a cracked dental plate) constituted cruel and unusual punishment, as would any "wanton and unnecessary infliction of pain."  The two dissenters thought beatings by guards are not covered by the Eighth Amendment protections.
Drug Searches
Drug Testing of Students: Board of Education v Earls (2002)

THOMAS

REHNQUIST

KENNEDY

SCALIA

BREYER

5
TO
4


GINSBURG

O'CONNOR

STEVENS

SOUTER
The Court, on a 5 to 4 vote, upheld a school district policy that required all students participating in extra-curricular programs to submit to urine testing for drugs.  The Court found the search to be reasonable within the meaning of the Fourth Amendment prohibition of "unreasonable searches."  In a concurring opinion, Justice Breyer suggested the policy might not be constitutional if it extended to all students, including those who did not participate in extra-curricular programs.

Using Heat Sensing Detectors on Private Homes: Kyllo v United States (2001)

SCALIA

THOMAS

GINSBURG

SOUTER

BREYER

5
TO
4


STEVENS

REHNQUIST

O'CONNOR

KENNEDY
The Court, on a 5 to 4 vote, ruled that the use of thermal-imaging equipment, without a warrant, on private homes to detect the possible presence of marijuana growing equipment constituted an unreasonable search and therefore violated the Fourth Amendment.
Free Speech Clause
Flag Burning: Texas v Johnson (1989)

BRENNAN

MARSHALL

SCALIA

BLACKMUN

KENNEDY

5
TO
4


REHNQUIST

WHITE

O'CONNOR

STEVENS
The Court, on a 5 to 4 vote, held that the burning of the American flag was protected expressive activity under the First Amendment, and reversed the conviction of a flag-burning demonstrator.

Nude Dancing: Barnes v Glen Theatre (1991)

REHNQUIST

O'CONNOR

KENNEDY

SCALIA

SOUTER

5
TO
4


WHITE

MARSHALL

BLACKMUN

STEVENS
The Court, on a 5 to 4 vote, held that the First Amendment does not protect the right to dance totally nude in a strip club and that a state law prohibiting indecent exposure (so long as it covered most forms of public nudity,  and wasn't aimed just at nude dancing) could be enforced against strippers.  Justice Souter, in a concurring opinion, suggested that he did not believe that indecent exposure laws could be enforced against actors or dancers participating in serious artistic performances where the "adverse secondary effects" in this case would be unlikely to exist.

State Ban on Discrimination Against Gays & Freedom Not to Associate: Boy Scouts of America v Dale (2000)

REHNQUIST

O'CONNOR

KENNEDY

SCALIA

THOMAS

5
TO
4


STEVENS

SOUTER

GINSBURG

BREYER
The Court, by a 5 to 4 vote, held that New Jersey violated the freedom of association rights (protected as an aspect of the free speech clause) of the Boy Scouts when it ordered the Boy Scouts to reinstate a scout leader the organization had dismissed because he was a homosexual.  The Court found that the Boy Scouts had the right not to associate with persons who the organization believed would undermine its expressive values.
Powers of Congress
Federal Regulation of Violence Against Women: United States v Morrison (2000)

REHNQUIST

KENNEDY

O'CONNOR

SCALIA

THOMAS

5

TO
4

STEVENS

GINSBURG

BREYER

SOUTER
The Court, by a 5 to 4 vote, held that Congress lacked authority either under the Commerce Clause or the Fourteenth Amendment to enact a law that created a federal remedy for gender-motivated violence.

Federal Regulation of Medical Marijuana: Gonzales v Raich (2005)

STEVENS

GINSBURG

BREYER

SOUTER

KENNEDY

SCALIA

6

TO
3

REHNQUIST

O'CONNOR

THOMAS
The Court, by a 6 to 3 vote, held that Congress had the power under the Commerce Clause to criminalize the private growing and consumption of marijuana, even if the consumption complied with California law allowing marijuana to be used for medical purposes.
Powers of President
Right of "Enemy Combatants" to Challenge Detention: Hamdi v Rumsfield (2004)

STEVENS

GINSBURG

BREYER

SOUTER

SCALIA

KENNEDY

O'CONNOR

REHNQUIST
8
TO
1

THOMAS
The Court, by an 8 to 1 vote, held that persons classified as "enemy combatants" and held at Guantanamo after the 9-11 terrorist action had a constitutional right to challenge their classification despite a presidential order to the contrary.  Justice Scalia contended that Hamdi had a right a criminal trial under the Sixth Amendment, while the other justices in the majority argued that the due process clause gave Hamdi a right to challenge his classification, but did not go so far as to hold that Hamdi had a right to a full-blown trial.

Military Commissions: Hamdan v Rumsfield (2006)

STEVENS

SOUTER

GINSBURG

BREYER

KENNEDY

5
TO
3


SCALIA

THOMAS

ALITO

C. J. Roberts recused himself

The Court, by a vote of 5 to 3, found that President Bush lacked the constitutional authority to authorize trial by military commission of prisoners held at Guantanamo.  The Court ruled that in the absence of congressional authorization, the President had no implied authority under Article II to authorize trials using the process proposed.  Three dissenters argued that Congress had "constitutionally eliminated jurisdiction over the case" and that therefore the case should be dismissed.  Chief Justice Roberts, who participated in the decision below that the Court reviewed, recused himself.  

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