What happens if the US Supreme Court ties 4-4? What is the result of a 4-4 split in a US Supreme Court case?
Ties In the case of a 4-4 tie, the decision from the lower court is left as-is, and the opinion sets no precedent that would bind other circuits. The opinions in tied cases are generally very short, simply stating that the court was equally divided. For example, in Costco Wholesale Corp. v. Omega, S. A. 562 U.S. ___ (2010), Justice Kagan recused herself due to prior involvement with the case when she was with the Justice Department. The court split 4-4. This was the entirety of the per curiam opinion: Per Curiam. The judgment is affirmed by an equally divided Court. Justice Kagan took no part in the consideration or decision of this case. In another example, Reagan v. Abourezk, 484 U.S. 1 (1987), the court tied 3-3 (quorum is six). There was a vacancy due to the retirement of Justice Powell; Justices Blackmun and Scalia recused themselves. History and congressional support Edward A. Hartnett, in Ties in the Supreme Court of the United States, gives a historical account of this practice. This is a practice established by the court itself, not by direction of Congress, but Congress has "presupposed the existence of the rule of affirmance by an equally divided court". Hartnett points to 28 U.S. Code § 2109. That section relates to quorum, but notes that if the court fails to achieve quorum: [...] the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court. In cases of original jurisdication The situation is not so clear for Original Jurisdiction Deadlocks. In these cases, there is no lower court ruling to affirm. There have been only two original jurisdiction deadlocks. Michael Coenen summarizes: First, in the nineteenth century case of Virginia v. West Virginia, Chief Justice Chase announced that the Justices were “equally divided on the demurrer, and equally divided also upon the order which should be made in consequence of that division.” As a result, the matter stood unresolved for nearly three years. Second, in the twentieth-century disbarment action of In re Isserman, the Court split evenly on the question of disbarment but ordered disbarment anyway. One year later, the Court changed its mind and overruled its prior decision. Avoiding ties The court has a few internal things they can do to avoid ties. They could delay issuing an opinion on a case and ask for re-argument by the parties in front of the eventual nine-justice court. They could revisit the case in conference and get votes to shift around based on a more narrow or procedural ruling. In both of these situations, we wouldn't necessarily know that there was an internal deadlock.
Let's say that the mediation doesn't succeed to achieve voluntary compliance satisfactory to both sides. What happens next? Under Sec 706(e) it appears that the complainant has to litigate himself in a civil court, and potentially be exempt from any fees and have an appointed attorney. Not really. The EEOC at that point (within a certain time period) either decides to litigate the case itself, or if it chooses not to litigate itself, authorizes the employee to litigate the case at his or her own expense, and if the employee prevails, the remedy awarded by the Court includes what the court determines to be the employees reasonable attorneys' fees. The details of the process and the relevant deadlines are available at the EEOC's website. Basically, if the case isn't resolved in mediation, the employer makes a position statement, the employee responds, the EEOC investigates (using its subpoena power, if necessary) on average for ten months, and the EEOC either prosecutes the case itself, or it issues a "Notice-Of-Right-To-Sue" which allows the private employee to hire a lawyer and sue the employer. How often does it actually happen? The EEOC handles about 90,000 charges per year and wins about $525 million a year in judgments and settlement awards (parallel agencies at the state level handle additional cases in a similar manner). The vast majority of the cases are settled or result in a Notice of Right To Sue letter, with only 100 to 400 lawsuits per year actually filed by the agency resulting in $22 million to $168 million a year of awards in court cases. About 25% of these cases go to trial. The rest settle before trial or are resolved in motion practice before trial (including default judgments, when the employer simply doesn't respond to the lawsuit). Once the EEOC brings a lawsuit, settlement is the most common resolution. So, there are a lot of cases, although there is only about one EEOC claim per 1,000 employees in the workforce subject to EEOC jurisdiction per year. Whether this is a lot of complaints or not many, is really a matter of opinion. Only about one in twenty-five people will ever file an EEOC claim in his or her entire life, although this will vary considerably based upon a person's race, national origin, religion and sex. A non-Hispanic white Christian male of European descent is much less likely to file an EEOC claim during his lifetime than someone who does not fit that description. Realistically, a majority of cases that aren't abandoned by the employee in the administrative process (which is a significant share of the total) or found to have no factual basis (a small but significant percentage) are settled for fairly modest dollar amounts (an average of about $10,000 to $20,000 per claim). The bigger dollar cases for a single employee usually end up being brought in a private lawsuit rather than by the EEOC itself. About 14,000 of those charges each year result in a Notice of Right to Sue letter followed by a civil lawsuit filed by a lawyer for the employee. It isn't terribly easy to determine from official statistics what proportion of cases resulting in a Notice of Right to Sue letter rather than an EEOC lawsuit ultimately do not result in a lawsuit being filed by the employee. About 250 of these cases (not quite 2%) go to trial each year. The rest settled or are resolved in motion practice before trial (including default judgments, when the employer simply doesn't respond to the lawsuit). Once an employee brings a lawsuit, settlement is the most common resolution. Folk wisdom in the employment litigation field is that the average settlement of a case of ordinary strength on the merits that is settled fairly early on in the process is about six months of wages. An estimate that the employees in private lawsuits secured more than $200 million a year in settlements and money judgments is probably a gross underestimate. It could easily be $500 million to $1 billion per year. But, there are no good statistics available since settlement amounts are overwhelmingly confidential. The EEOC sues on behalf of the employee in cases it chooses to litigate itself on a weekly basis, and likewise declines to prosecute and certifies the case to allow the individual to prosecute the case with a private attorney all the time. Is there any relevant case law? Yes. Pretty much every relevant detail of the process has been litigated in case law that has produced reported decisions because there have been many thousands of employment discrimination cases litigated under the Act. There are probably at least two dozen to four dozen new published appellate decisions in the federal circuit courts each year on these kinds of cases, if not more, and those decisions have come at a pretty steady rate for the past half century. There are hundreds of published decisions interpreting these statutes in almost every one of the federal circuits. On quite a few issues, there are splits of authority between different circuits regarding how to interpret the law that will ultimately be resolved by the U.S. Supreme Court, or by Congress, or that may remain unresolved forever. How will the civil court try the case? Will the judge reference the Civil Rights Directly? It is a little unclear what you are asking here, but I will do my best. Regardless of whether the EEOC or the individual employee brings the case, it is filed as a Complaint in federal court like any other federal lawsuit, litigated according to the Federal Rules of Civil Procedure, and resolved in the vast majority of cases either by a judge in a pre-trial motion, by a settlement between the parties, or by a jury trial presided over by a judge. In a jury trial, the judge tells the jury what the applicable law says and the jury decides if the employee has proved a case against the employer when applying that law after hearing the evidence presented at trial and then decides what damages award to make, on a very short jury verdict form. In a bench trial (i.e before a judge without a jury), the judge makes those determinations in a lengthy written ruling setting forth the factual and legal basis for the judge's determination on the merits. Jury trials are much more common than bench trials in these kinds of cases, partially because plaintiffs want juries to make a damages determination, and partially out of a perception (not entirely inaccurate) that judges tend to be pro-employer on average. What is a likely punishment? Punishment is mostly the wrong term. It is a lawsuit for money damages to compensate the employee for harm actually suffered. The jury (or the judge if the case can be decided before trial in a motion for summary judgment or if a jury trial has been waived) determines the amount of compensation, if any, which should be awarded for lost wages, non-economic compensatory damages, etc. and the judge then awards attorneys' fees and court costs based upon the submissions of the parties after the trial is over based upon a determination of what is allowed by law and what is reasonable. To some extent, an employer's obligation to pay attorneys' fees and costs acts as a proportionate punishment for not immediately settling a case where the employer is found to be in the wrong. To some extent, non-economic damages can constitute a punishment. But, when an employer is found to have discriminated intentionally, which is most of the time, punitive damages can also be awarded, although they must be proportionate to the amount of actual compensatory damages awarded, typical one or two times the compensatory damage award unless that award is very small. Statutory liquidated damages are sometimes awarded in lieu of certain kinds of punitive and compensatory damages awards in age and sex discrimination cases under the Equal Pay Act. There are also dollar limits on awards based upon the size of the employer. Why is the process convoluted by adding an extra step in form of the commission? Mediation is allowed as a compromise to encourage negotiated resolutions that avoid litigation costs before everyone has spent a lot of money on lawyers. In practice, a surprisingly large number of cases result in pre-trial mediation resolutions, often in cases where an outcome if the case had gone forward to a trial would have been uncertain. The involvement of the Commission is a compromise between having a system where all cases are prosecuted at state expenses and one in which all cases are brought privately with an opportunity to win attorneys' fees if one prevails. The EEOC has usually used its authority to bring cases that are clearly cases of improper employer conduct where due to the small dollar amounts involved or the number of employees affected, an individual lawsuit would not provide an adequate remedy since private lawsuits would not be brought otherwise. It is very hard for a private attorney to justify bringing an employment discrimination lawsuit over a case where the damages are likely to be in the $5,000 to $25,000 range because the employee doesn't make much money unless liability is 100% clear (e.g. there is an admission on videotape from the employer), despite the fact that a prevailing party can get non-economic damages, punitive damages, attorneys' fees and costs. So, it is particularly hard to bring employment discrimination cases on behalf of employees who don't earn much even when they aren't discriminated against. The availability of EEOC enforcement prevents employers of low wage workers and workers in temporary employment whose damages are small from ignoring the Civil Rights laws with impunity. A private lawyer does something on the order of $30,000 to $150,000 of billable work to bring an employment discrimination case involving a single employee-client to trial, and a lawyer defending such a case for an employer will typically incur more legal fees for their employer client than the employee's lawyers do, while the employer's lawyer defends the case all of the way through a trial, even before considering any amounts actually awarded to a prevailing employee in a case where the employee wins. Each side's legal fees, individually, will usually exceed the amount of compensatory and punitive damages awarded combined in a fairly small dollar case for an employee who wasn't paid very much, or at least didn't lose a huge amount of money economically due to illegal discrimination (for example, because the employee wasn't promoted while a less qualified candidate was promoted). This is an important reason why lots of cases settle and why the EEOC is necessary. The EEOC process also provides a means by which arbitration agreements with individual employees can be circumvented because the EEOC is not a party to those agreements and is not bound by them. Why isn't discrimination simply prosecuted by the state's attorney? After all racial discrimination very much fits the definition of a public wrong. Government agency resources aren't unlimited, so the government can't prosecute every credible complaint, so the EEOC has to pick and choose how to get the most bang for its available resources. In practice, the EEOC can only afford to pursue about one in ten of the employment discrimination cases subject to its jurisdiction that go to trial with its own lawyers. The cases it can't afford to bring, it delegates to the private sector rather than simply leaving those cases unprosecuted as would happen in the criminal justice system. This also provides a way for an employee who has a lazy or unenthusiastic government lawyer assigned to their case at the EEOC who doesn't take what the employee sees as a strong case seriously a way to get relief for employment discrimination despite the fact that the EEOC isn't willing to back them up. Private lawsuits are a check and balance against bad EEOC decisions about how strong cases are as well as a way for the EEOC to avoid financing the legal fees of people who can afford to sue on their own. Is the enforcement any good? Lots of employees over the years have gotten lots of money, although probably not 100% of the amount of the economic harm they suffered (and, of course, employee and employer attorneys have gotten paid a lot of money in the process as well, which is good if you are a lawyer, but is dead weight loss from an economist's point of view). But, more importantly, the behavior of employers has changed greatly as a result. In practice, most lawsuits, and almost all lawsuits not brought by the EEOC itself, involve either wrongful termination or failure to promote someone, rather than discriminatory hiring, since it is hard to show an individual right to be hired for which an individual is entitled to compensation. Even in EEOC cases, most are brought for discriminatory advertising or openly admitted discrimination in hiring, rather than covert discrimination by an employer in hiring on a non-permitted basis. The EEOC brings a handful of cases alleging covert discrimination in hiring against medium or large employers each year, in part, just to provide a credible threat to anyone considering doing so, often with a combination of tips from insiders (particularly those from hiring officials who are fired in retaliation for not following a discriminatory hiring policy) and with undercover "test applicants" who submit functionally identical resumes for the same job when many job openings are available. But, this is usually a tiny share of the total volume of employment litigation brought under the Civil Rights Acts. There is a certain irony in this, because employers who are willing to hire someone who belongs to a "protected class" in the first place, who hence, are probably not the most discriminatory employers in the market, are more exposed to a realistic risk of a discrimination lawsuit, than employers who refuse to hire anyone in a "protected class" in the first place, so long as the employer keeps its mouth shut about this practice and is willing to lie and come up with false pretexts for its actions. Dishonest gross racists and clear misogynists are under punished, while less culpable employers who are more honest but still a little bit discriminatory in the cases of a few well paid employees are over punished relative to more culpable employers. Also, employment discrimination laws provide the most monetary compensation to the most competent and well paid employees who probably have the greatest capacity to mitigate their damages by seeking other employment from less discriminatory employers, while providing the least compensation to the marginal employees for whom discrimination in employment most impacts their quality of life. Indeed, often the most marginal employees aren't even willing to risk filing a complaint with the EEOC for fear of being blacklisted in the future in a manner that is impossible to prove. Still, at a minimum, by making it illegal to publicly state a discriminatory reason or to state a discriminatory reason to someone who could testify against you in court, the laws in question have changed the internal normative standards that managers of medium and large sized business apply on a day to day business such that at least lip service and public commitment is given to the requirements of the civil rights laws. This change in corporate culture has probably had more of a real world effect than actual suits for damages have in regard to discrimination in hiring. The benefits of the voluntarily discontinuation of discrimination in employment as employers internalized the norms established by the civil rights laws for the most part has provided far more benefit to employees who were previously discriminated against than litigation and settlements resulting from the EEOC process. For example, when Sandra Day O'Connor (future Supreme Court justice) was a young lawyer, fewer than 5% of attorneys were women and she was often mistaken for a secretary or receptionist by clients. Now, about half of all young associate lawyers (even at very large firms who graduated from very prestigious law schools) are women. Almost all of this change was due to a change in professional norms that were a direct result of the Civil Rights Act of 1964 (women had legally been allowed to be lawyers since the 1920s almost everywhere and earlier in some places), rather than through case by case litigation. The Civil Right Act opened up a huge new lucrative profession to women and minorities, and the experience of the legal profession was the norm and not the exception. Before the act, women were pretty much limited to school teaching, being librarians, nursing, secretary work, food service, day care, piece work sewing and laundry work. After the Civil Rights Act, their employment opportunities dramatically increased. The Civil Rights Act of 1964 is likewise, more or less single handedly, responsible for today's black middle class which would have been an order of magnitude smaller otherwise. There are economic arguments that discrimination laws do or do not do much good, but those arguments rarely consider the fact that the law, when it was first enacted, dramatically changed corporate culture and the moral viewpoints and norms of the middle and upper middle class who act as employers making hiring decisions across the nation. Until the Civil Rights Act was enacted, tradition and prejudice kept a huge share of the population out of most of the marketplace in a manner completely contrary to what a naive Economics 101 analysis would predict.
Short answer: Yes. There are some matters in the exclusive original jurisdiction of the U.S. Supreme Court, which consists of suits between U.S. states and/or foreign states with each other and suits involving diplomats. On average, one or two such suits are filed each year. The original jurisdiction in these cases is created by Article III of the United States Constitution (Section 2, Clause 2), and is exclusive in these cases by virtue of the 1789 Judiciary Act. The 11th Amendment also plays a role in this analysis. Long answer: The original jurisdiction of the U.S. Supreme Court is set forth in Article III, Section 2, Clause 2 of the United State Constitution, which states: In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. Basically, these are cases of a state against the United States and/or another state, often regarding boundary disputes, interpretations of interstate compacts, or water rights, or cases involving diplomats adjudicating the extent of diplomatic immunity. (Incidentally, almost all, but not all of the cases in the U.S. Supreme Court's appellate jurisdiction are discretionary, but appeals to the U.S. Supreme Court from three judge panels ruling in certain election law cases are of right.) How rare are these suit in the original jurisdiction of the U.S. Supreme Court? On average, the U.S. Supreme Court has considered about one per year on the merits since it came into existence. This has been between 0.5% and 2% of the U.S. Supreme Court's overall caseload of merits cases in modern times. (These days the U.S. Supreme Court typically decides about 70 case a year on the merits and evaluates about 5,000 certiorari petitions each year.) Between 1789 and 1959, the Court issued written opinions in only 123 original cases. Since 1960, the Court has received fewer than 140 motions for leave to file original cases, nearly half of which were denied a hearing. The majority of cases filed have been in disputes between two or more states. The Court has generally accepted state party cases dealing with boundary and water disputes, but it has been much less likely to field original cases dealing with contract disputes and other subjects not deemed sufficiently substantial for the Court's resources. In practice, when a case in the U.S. Supreme Court's original jurisdiction is filed, it is almost always assigned immediately to a "special master" who develops the case until it is ready for U.S. Supreme Court review. The U.S. Supreme Court briefly allowed non-residents of a state to sue state governments in its original jurisdiction, but this authority was quickly eliminated by the passage of the 11th Amendment (which has also been interpreted as codifying the principal of a state's sovereign immunity from suits by its own citizens outside its own courts without its consent). In the Judiciary Act of 1789, Congress made the Supreme Court's original jurisdiction exclusive in suits between two or more states, between a state and a foreign government, and in suits against ambassadors and other public ministers. The Supreme Court's jurisdiction over the remainder of suits to which a state was a party was to be concurrent, presumably with state courts since the statute did not expressly confer these cases upon the inferior federal courts. Notably, this exclusivity rule does not apply to suits between a state and the United States, or to suits brought by states against non-residents (whether or not they are U.S. persons), although such suits have been interpreted to be within the original jurisdiction of the U.S. Supreme Court: In the 1892 case of United States v. Texas , Justice John Marshall Harlan ruled that since the federal judicial power extended to "cases in which the United States was a party," and the Court was granted jurisdiction over cases to which a state was a party, the Court would take jurisdiction in a United States suit against a state. Such suits by the United States increased after the 1890s and usually involved disputes with states over land, though in the late twentieth century they also included a few suits to enforce provisions of the Federal Voting Rights Act. As a result of the 11th Amendment and the 1789 Judiciary Act, the U.S. District Courts only have jurisdiction over states when they consent to suit in the forum (usually for federal law cases involving bankruptcies), or when the United States is a party and no private individuals are parties (as in the federal district court case Arizona v. United States mentioned in the comments) since U.S. District Courts have jurisdiction over all suits to which the United States is a party. U.S. District Court jurisdiction is limited, however, by doctrines of state sovereign immunity, to cases seeking only injunctive relief that seek to enforce the 14th Amendment to the United States Constitution (although this is circumvented, in part, by bringing suits against state officials as opposed to state governments themselves). So basically, states themselves can only be sued in U.S. District Courts by the United States for injunctive relief under the 14th Amendment. (For this purpose, unlike many other purposes under the U.S. Constitution, the term "state" does not include local governments which can be sued in federal court, and often are sued there for civil rights violations.) Also, despite the seemingly mandatory nature of the U.S. Supreme Court's original jurisdiction, it declines to hear about half of the cases presented to it in that capacity. The Supreme Court further limited its original docket by declaring that it would exercise discretion over whether to hear cases even if they were legitimately within the Court's jurisdiction. In a series of cases in 1971, including Ohio v. Wyandotte Chemicals Corp ., the Court declined to hear environmental pollution claims brought by states against corporations that dealt with complex and technical factual questions. The justices ruled that the states had other available forums to bring their claims and that the cases were not "appropriate" for the Court in light of its primary function as the nation's highest appellate tribunal. The Court resolved to examine the "seriousness and dignity" of claims so as to preserve its resources for consideration of appeals involving federal questions. The Supreme Court soon expanded its appropriateness doctrine to decline to hear some cases between two states, even where the Court's jurisdiction was exclusive. The U.S. Supreme Court also has the statutory authority (almost never used) under the All Writs Act (28 U.S.C. § 1651) to issue writs of habeas corpus filed directly in the U.S. Supreme Court rather than a lower court, although strictly speaking it doesn't add to the U.S. Supreme Court's jurisdiction. About 60 habeas corpus cases are filed directly in the U.S. Supreme Court in its original jurisdiction each year, although very few are granted. The text of the All Writs Act is as follows: (a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. (b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction. According to Wikipedia (with appropriate citation to authority): Application of the All Writs Act requires the fulfillment of four conditions: The absence of alternative remedies—the act is only applicable when other judicial tools are not available. An independent basis for jurisdiction—the act authorizes writs in aid of jurisdiction, but does not in itself create any federal subject-matter jurisdiction. Necessary or appropriate in aid of jurisdiction—the writ must be necessary or appropriate to the particular case. Usages and principles of law—the statute requires courts to issue writs "agreeable to the usages and principles of law".
In case there is no way of knowing, thus no way to sue, would this seem like a loophole that practically abolishes the 4th amendment ? The 4th amendment only means that the officer needs a probable cause/reasonable suspicion to detain you. It absolutely does not mean that he has to tell you what that is. In fact, not telling you what the probable cause is is often a part of the officer's job because, if you are indeed a perpetrator, letting you know what the suspicions are could make you do things that would allow you to escape justice. There is certainly always a way to sue i.e. file a lawsuit, for which you do not need to know what the probable cause was. Instead, you contend that there was not any. And from this point the officer has to tell the court what it was, if any. If he fails to provide one, you win and get redressed for harassment — this is how your 4th amendment rights work. If he does provide a good probable cause, you lose because in this case you either: actually did something suspicious and knew there was a probable cause; OR jumped to the conclusion that the officer harassed you when he was simply doing his job.
Does the Supreme Court simply rubberstamp the prevailing social consensus? No. Structurally, The Supreme Court Is Designed To Lag Behind Social Consensus U.S. Supreme Court justices are political appointees with discretion over how laws are interpreted and enforced in the U.S. that cannot be reviewed by any other body, in the case of constitutional law, and can only be second guess by Congress and the President acting together, in the case of statutory law. Since U.S. Supreme Court justices serve for life, they tend to be lagging indicators of the political preferences of past Presidents. Plessy v. Ferguson was influenced by post-Reconstruction judicial appointments trying to salvage what it could from the end of the slavery regime for former slave states, although Congress could have overruled it with new legislation if Senators from Southern states hadn't filibustered that kind of legislation in the U.S. Senate. Still, while the law changes slowly, and the U.S. Supreme Court is often a lagging indicator of the prevailing social consensus, it is not frozen in time either, both because legal norms change over time, however slowly, because statutes and constitutional amendments change the environment in which the U.S. Supreme Court operates, and because sometimes the law commands them to do so. For example, in 8th Amendment jurisprudence (the prohibition against cruel and unusual punishments), the &quot;unusual&quot; part of &quot;cruel and unusual&quot; has always incorporated prevailing social consensus, by design and by virtue of the express constitutional text. Precedent Still Matter Precedents also matter, however. U.S. Supreme Court Justices, while they may be influenced by a political ideology that had a lot to do with why they were nominated in the first place, are not simply legislators in robes. While the U.S. Supreme Court is well known for its partisan split votes on close political issues, there are many areas of law where the U.S. Supreme Court is still far less partisan than elected officials, and often, split decisions in the U.S. Supreme Court on less politically charged issues are not along partisan lines. U.S. Supreme Court Justices cross partisan lines far more often than elected officials do, and the amount of partisan line crossing that takes place in courts below the Supreme Court that have a legal duty to follow the precedents of courts superior to them is even greater. At the time of Dred Scott and until the 13th Amendment was passed in the wake of the U.S. Civil War, slavery was legal and its legality had never been seriously doubted in U.S. legal precedents. Precedents at the time, including a series of highly sensitive legislative and constitutional compromises already agreed to by other parts of the government, supported this ruling, whether or not it was good policy. Obergefell v. Hodges, followed a nearly unanimous groundswell of support for the position that the U.S. Supreme Court ultimately took from state courts and lower federal courts, applying a variety of precedents already in place going back to Griswold v. Connecticut, 381 U.S. 479 (1965), which affirmed that the fundamental rights found in the Fourteenth Amendment's Due Process Clause &quot;extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs,&quot; but the &quot;identification and protection&quot; of these fundamental rights &quot;has not been reduced to any formula,&quot; and Loving v. Virginia, 388 U.S. 1 (1967), invalidating laws prohibiting interracial marriage. The lesser known cases of Zablocki v. Redhail, 434 U.S. 374 (1978) (invalidating a Wisconsin law limiting the right of non-custodial parents to remarry), and Turner v. Safley, 482 U.S. 78 (1987) (allowing prison inmates to marry without state permission) had also established a constitutional right to marry. In Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court struck down a Colorado law that barred local governments from protecting gay rights. In 2003, the Supreme Court in Lawrence v. Texas struck down Texas’ sodomy law - and in turn invalidated sodomy laws in 13 other states - making private, consensual, adult sexual activity between same-sex couples legal across the U.S. In United States v. Windsor (2013), the Supreme Court held that a same sex couple legally married in Canada could not be denied the federal estate tax spousal deduction invalidating Section 3 of the Defense of Marriage Act as unconstitutional. The same day, in Hollingsworth v. Perry (2013), the Supreme Court held that California Proposition 8 (note that a majority of voters in this very liberal state passed this measure in 2012 suggesting that allowing same sex marriage was not the prevailing social consensus) which prohibited California from recognizing same sex marriages lawfully entered into after a couple prevailed in a 2009 court fight to secure same sex marriage rights under prior California law was unconstitutional. In 2015, SCOTUS responded not to a public opinion social consensus, but to a legal consensus among U.S. appellate judges driven by its own precedents. Many states in which judges struck down same sex marriage bans before the U.S. Supreme Court took up the issue did so in states where same sex marriage was not popular, because fifty years of accumulated precedents from 1965 to the present strongly pointed in that direction. As a result, on the eve of the Obergefell decision, 37 states and the District of Columbia already recognized same-sex marriage, and only 13 states had bans. Those bans were mostly struck down as a result of lower courts interpreting existing U.S. Supreme Court precedents like the ones mentioned above, and as a result of legislators seeing the writing on the wall and wanting to take credit for the inevitable. The act of nationalizing the right to same-sex marriage also reflected the reality that even though the constitution allocated regulation of marriage to the states rather than the federal government, as a general matter, that allowing a particular couple's marriage to be recognized in some U.S. states and not others, was basically unworkable in a country with freedom of travel between states. SCOTUS Often Establishes The Prevailing Social Consensus Also, while sometimes the U.S. Supreme Court does give official recognition to the prevailing social consensus (which is closely related to what becomes law by one means or another anyway), perhaps more often, a U.S. Supreme Court ruling establishes and changes the prevailing social consensus. Support for interracial marriage in opinion polls, which wasn't terribly high when Loving v. Virginia was decided in 1967, soared after the U.S. Supreme Court declared it to be a matter of constitutional law. A question from a 1968 international Gallup poll underscores the extent of U.S. opposition to interracial marriage during this period. This question, which asked Americans and those in 12 other nations whether they personally approved or disapproved of marriage between whites and nonwhites, found even broader U.S. opposition than the 1965 question. More than seven in 10 Americans (72%) disapproved of white-nonwhite marriages, in contrast with only 21% of residents in Sweden, 23% in the Netherlands, 25% in France, 34% in Finland, 35% in Switzerland and 36% in Greece. Opposition outweighed support in Austria, Canada, West Germany, Norway, Uruguay and Great Britain, but to a far lesser extent than in the U.S. The 1965 and 1968 U.S. reactions to interracial marriage appear contradictory, but this is because each question measures a different dimension of public opinion. The 1965 question asks for people's views on the legality of interracial marriage -- whether it should be a crime -- whereas the 1968 question merely asks Americans whether they personally approve. Americans' personal views on interracial marriage eventually changed, but it took decades for majority support to emerge. In 1978, more than a decade after the Loving case, only 36% of Americans approved, while 54% still disapproved. Not until the 1990s did public approval cross the 50% threshold, registering 64% in 1997. Gallup's latest update, in 2013, shows 87% approving. (Source) Support for same sex marriage has followed a similar pattern after Obergefell v. Hodges was decided. Roe v. Wade (creating a constitutional right to medical abortion) and Griswold before it (creating a constitutional right to contraception and clearly establishing the concept of substantive due process rights to privacy), likewise dramatically changed public opinion on these issues. So, while the U.S. Supreme Court is sometimes a lagging indicator of a social consensus that is already prevailing, its moral authority and the inability of any other political actors to overcome the legal force of its rulings has also caused it to be a major driver of social consensus going forward. For example, until Brown v. Board of Education (1954), Plessy v. Ferguson was widely accepted as a legally fair standard and the support really only entirely collapsed when the U.S. Supreme Court said otherwise. Indeed, Brown v. Board of Education probably was pivotal in shifting public opinion in a manner that led to the adoption of the Civil Rights Acts of 1964 that finally put teeth into the political resolve to end racial discrimination that had begun in earnest in the Reconstruction era.
If a law is struck-down as unconstitutional, but all the precedent used to find it unconstitutional gets reversed; what becomes of the law? In U.S. law, the law has effect again, unless it has been amended or repealed in the meantime. Is it totally dead, needing be passed anew? In the U.S., no. It is not totally dead. It is merely dormant. It stays on the books and legislators may decide not to repeal it as a political statement. It also might be considered for interpretive purposes when construing another part of the same law. For example, the meaning given to a phrase in an unconstitutional part of the law might be applied to a different part of the law that is constitutional. Can the judiciary be asked to reinstated, after which point it can be used again? In the U.S., any court can determine that a law is unconstitutional, but the extent to which that ruling is binding precedent on other courts or other parties than those to the case before it depends upon the court in question and upon the doctrine of collateral estoppel (a.k.a. issue preclusion). For example, the legal fight in the U.S. to hold bans on same sex marriage to be unconstitutional was fought in and resulted in ruling in dozens of courts at the trial court and state appellate court, and federal intermediate appellate court level before a uniform ruling was established by the U.S. Supreme Court. Further, even if the issue arises in another case where there is a controlling precedent, attorney ethics permit an attorney to make a good faith argument for a change in the law to any court, so if there is some good faith argument for doing so, the attorney can push that the issue be reconsidered. Of course, usually the answer from the court will be "no." Or can it just be enforced again without any formal process; so long as nobody sues and gets it killed again by a lower court? Sometimes government officials enforce laws that have been held unconstitutional, either because they aren't aware of the relevant court decisions, or because they think that their facts are distinguishable from those under which the law was held unconstitutional (which sometimes happens on an "as applied" basis rather than on a "facial" basis that applies to all cases), or because they think the judge before them might rule differently despite the precedent. Also, would the answer differ according to country? If so, could you please give me some examples of countries handling this differently. Yes. Many countries with legal systems based upon the legal system of countries of continental Europe like France and Germany and Spain, which are called "civil law" countries have a very different process of handling unconstitutional laws, as does the European Court of Human Rights and the highest court of the European Union. In Germany, for example, questions of the constitutionality of a law may be raised only in the Constitutional Court and not in other courts. This ruling is usually final. And, unlike U.S. courts, the Constitutional Court can rule a law unconstitutional during the legislative process, rather than in connection with an actual case or controversy relating to the law taking effect (in which case the law never gets on the books in the first place). I don't know what happens when the Constitutional Court declares a law unconstitutional. I do know, however, that in the case of the European Court of Human Rights and the highest courts of the E.U. that one of the usual remedies will be an order directed at a member state to amend its statutes to remove the offending law, with sanctions imposed if the member state fails to do so. Obviously, once such a law is repealed in this fashion, it would have to be re-enacted to take effect even if the precedent holding that the law was unconstitutional was undermined.
Usually, an order would specify what happens. There is no hard and fast rule in this situation.
Was/is it permissible for judges in the US to talk ex-parte like that? No. Ex parte interactions of that sort are not allowed. See, for instance, Disciplinary Counsel v. Bachman, 2020-Ohio-732 (Dec. 18, 2020) and Maze v. Judicial Conduct Commission, 2019-SC-0691-RR (Dec. 17, 2020). An example of less recent decision but with a reporter citation number is Comm'n on Judicial Performance v. Bozeman, 302 So.3d 1217 (2020). For situations of imminent risk of irreparable harm, procedural law provides for ex parte motions and ex parte petitions, such as this granted petition for Personal Protection Order. See M[ichigan]CR 3.7003(G). But the scenarios you depict fall short of the necessity for which ex parte provisions are intended. do the above scenes in the movies essentially portray judicial misconduct? Yes. A judge's house is inappropriate for communicating, let alone ex parte, his ruling (I am not knowledgeable of the films but my understanding of your description is that that judge made the ruling on the application). As for The Untouchables, any evidence of jurors' &amp; judges' conflict of interest and likely bias has to be filed in court and comply with procedural law so that all parties have an opportunity to litigate the matter.