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Supreme Court Roundup 
 

Jesse Chen* 
 

GLOSSIP V. GROSS 
 

Docket Number   14-7955 
Date Argued        April 29, 2015 
Date Decided      June 29, 2015 
Vote                     5-4, for Gross 
Issues                  Eighth Amendment; cruel and unusual punishment 
 
 
 In this case, the Court ruled upon whether or not Oklahoma's three-drug protocol for 
lethal injection violated the Eighth Amendment. This protocol involved the use of sodium 
thiopental to induce unconsciousness, a paralytic agent to inhibit involuntary movements, and 
potassium chloride to induce cardiac arrest1. Due to circumstances resulting in an inability to 
obtain sodium thiopental, Oklahoma decided to substitute 500 milligrams of the sedative 
midazolam as the first drug in their three-drug protocol. Charles Warner and 20 other Death row 
inmates in filed a 42 U. S. C. §1983 action against the state on grounds of cruel and unusual 
punishment, stating that the dosage of midazolam would be insufficient in preventing the pain 
experienced after the administration of the second and third drugs2. Furthermore, four inmates 
also filed for a preliminary injunction to prevent Oklahoma from carrying out any executions. A 
federal district court denied the motion, citing that the prisoners were unable to establish a 
likelihood that the use of midazolam would result in unusual pain, as well as not being able to 
offer an alternative drug that would substantially cause less pain3. This decision was affirmed by 
the Tenth Circuit U.S. Court of Appeals. 
 The Court ruled 5-4 in favor of Gross. The opinion was delivered by Justice Samuel A. 
Alito, Jr., in which the court held that there was insufficient evidence that the use of midazolam 
in Oklahoma's three-drug protocol presented a great enough risk of severe pain to violate the 
Eighth Amendment. The Court concurred with the District Court that the prisoners failed to 
identify an acceptable alternative method of execution which would yield less pain than the use 
of midazolam. Furthermore, executions have always been viewed as a constitutional punishment 
in the United States, and the risk of pain is inherent in the nature of an execution. Thus, the 
Eighth Amendment's protection against cruel and unusual punishment does not extend to protect 
against any and all pain that may occur during capital punishment. Because of the plaintiff's 
failure to provide factual evidence that midazolam has a higher than acceptable risk of pain, nor 
identified other available alternative execution methods, the Court chose to affirm the decision 
made by the Tenth Circuit Court of Appeals4 This is in line with the standards established by the 
Court in Baze v. Rees, 553 U.S. 25 (2008). 
 Justice Scalia, joined by Justice Clarence Thomas, wrote a concurring opinion, in which 

																																																													
*Undergraduate, Brandeis University, Class of 2017 
1Glossip v. Gross, 576 U.S. ___ (2015) 1 
2Id. at 1 
3Id. at 1 
4Id. at 14 



 

  

he stated that the death penalty cannot be held as unconstitutional by its very nature, as it is a 
punishment that the Constitution itself contemplates. He states that the argument presented 
against the death penalty, that it is arbitrary and open to mistake, is more so a criticism of the 
jury system. Scalia states that “[But] when a punishment is authorized by law—if you kill you 
are subject to death— the fact that some defendants receive mercy from their jury no more 
renders the underlying punishment “cruel” than does the fact that some guilty individuals are 
never apprehended, are never tried, are acquitted, or are pardoned5”. Here he argues that the 
moral question of whether or not the death penalty is cruel and unusual rests in the hands of the 
jury's conviction, and that the State carrying out its function of administering justice has no need 
of moral consideration6. 
 A dissenting opinion was written by Justice Stephen G. Breyer and joined by Justice Ruth 
Bader Ginsburg, who argued that the death penalty should be ruled unconstitutional. He states 
that the social and legal standards have changed since the implementation of the death penalty, 
and that its constitutionality has long since been brought into question7. Breyer writes that 
“Today’s administration of the death penalty involves three fundamental constitutional defects: 
(1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that 
undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within 
the United States have abandoned its use8.”   
 A second dissenting opinion was written by Justice Sonia Sotomayor, who wrote that 
scientific evidence has shown that midazolam does not adequately sedate prior the reaching its 
drug ceiling, and often fails to keep the subject fully unconscious the “face of [more] noxious 
stimuli9”. She also argued that the Court's interpretation of Baze v. Rees as a precedent was 
incorrect, and that there is no requirement for petitioners for relief under the Eighth Amendment 
to provide an acceptable and available alternative. Sotomayor also points out that just because an 
alternative cannot be found does not automatically result in an execution method becoming 
constitutional10. She was joined by Justice Stephen G. Breyer, Justice Ruth Bader Ginsburg, and 
Justice Elena Kagan. 
 
 

OBERGEFELL V. HODGES 
 

Docket Number           14-556 
Date Argued                 April 28, 2015 
Date Decided               June 26, 2015 
Vote                              5-4, for Obergefell 
Issues                           Fourteenth Amendment; Equal Protection Clause 
 
 
 The Supreme Court ruled in this case whether or not the Fourteenth Amendment of the 
U.S. Constitution guaranteed the right for same sex couples to obtain a marriage license and have 

																																																													
5Id. at 4 (Scalia, J., concurring) 
6Id. at 3-4 
7Id. at 2 (Breyer, J., dissenting) 
8Id. at 2 
9Id. at 6 (Sotomayor, J., dissenting) 
10Id. at 24-25 



 

  

their marriage recognized by the State. The petitioners of the original case were 14 same-sex 
couples and two other homosexual men who filed suits in the Federal District Courts in 
Michigan, Kentucky, Ohio, and Tennessee. 11 These suits attacked the definition of marriage used 
by said states, a union between a man and a woman, as well as their subsequent failure to 
recognize or perform marriages for same-sex couples as a violation of the Fourteenth 
Amendment's Equal Protection Clause. The trial courts ruled in favor of the plaintiffs. The 
decision was appealed and later reached the U.S. Sixth Circuit Court of Appeals, who reversed 
the decision and held that the states refusal to recognize same-sex marriages did not violate the 
Fourteenth Amendment. 
 The Supreme Court ruled in favor of Obergefell in a 5-4 decision, with the opinion 
delivered by Justice Kennedy, who was joined by Justice Ginsberg, Justice Sotomayor, and 
Justice Kagan. The Court's opinion stated that “No union is more profound than marriage, for it 
embodies the highest ideals of love, fidelity, devotion, sacrifice, and family...It would 
misunderstand these men and women to say that they disrespect the idea of marriage. Their plea 
is that they do respect it, respect it so deeply that they seek to find its fulfillment for 
themselves.12” The Court also went on to list four reasons for their decision: (1) “the right to 
personal choice regarding marriage is inherent in the concept of individual autonomy” 13 and that 
such autonomy is a liberty guaranteed by the Due Process Clause of the Fourteenth Amendment. 
(2) “the right to marry is fundamental because it supports a two-person union unlike any other in 
its importance to the committed individuals.” 14 (3) the right to marry “safeguards children and 
families and thus draws meaning from related rights of childrearing, procreation, and 
education15.” And (4) “marriage is the keystone of the Nation's social order16”. The consequence 
of denying same-sex couples from marriage would thus deny them these benefits, reduce social 
order, and unfairly diminish the legitimacy of their relationships. The Court also cited precedent 
rulings, such as Turner v. Safley, in which they held that prisoners could not be denied the right 
to marriage because it was a fundamental right17. Thus, the Court overturned the Sixth Circuit 
Court's decision and held that the four State's ban on same-sex marriages violated the Equal 
Protection Clause of the Fourteenth Amendment. 
 Dissenting opinions were written by all four of the dissenting Justices. Justice Roberts 
argued that using Due Process to cover the legalization of same-sex marriage is not inherent in 
the interpretation of the Fourteenth Amendment, but rather an expansion of its coverage. To 
bolster this argument, Roberts cited that no court decision had ever before challenged the 
definition of marriage as “between a man and a woman”. Justice Roberts states that the Court's 
decision is based upon using a moral argument to override the spirit of the law in his statement: 
“[But]this Court is not a legislature. Whether same-sex marriage is a good idea should be of no 
concern to us. Under the Constitution, judges have power to say what the law is, not what it 
should be.18” 
 Justice Scalia viewed the decision as a “threat to American democracy”, in that it was 

																																																													
11Obergefell Et Al. v. Hodges, Director, Ohio Department of Health, Et Al., 576 U.S. ___ (2015) 1 
12Id. at 28 
13Id. at 3 
14Id. at 13 
15Id. at 14 
16Id. at 4 
17Id. at 14, citing Turner v. Safley, 482 U.S. 78 (1987) 
18Id. at 2 (Roberts, J., Dissenting) 



 

  

used to “create 'liberties' that the Constitution and its Amendments neglect to mention19”. In his 
opinion, the Court mandating that all States must accept same-sex marriages was an unfair 
imposition of will upon the American populous that removed democratic debate from the table.  
Scalia also addressed the claim that the Fourteenth Amendment had been violated by the four 
states in question with his standard originalist interpretation, stating that a ban on same-sex 
marriage was not considered unconstitutional when the amendment was ratified in 1868, and 
thus there is “no basis for striking down a practice that is not expressly prohibited by the 
Fourteenth Amendment's text20”. 
 Justice Thomas rejected the idea that same-sex marriage could be guaranteed by the 
Constitution, stating that “liberty has been understood as freedom from government action, not 
entitlement to government benefits21”. Nowhere in the Constitution does it declare that 
individuals have an expectation to receive a government service, such as a marriage license. 
Furthermore, Thomas also criticized the Court for interpreting the Constitution “guided only by 
their personal views as to the 'fundamental rights' protected by that document”. 22 
 Justice Alito took a similar stance as the former two Justices on this issue, stating that 
“'liberty' under the Due Process Clause should be understood to protect only those rights that are 
'deeply rooted' in this Nation's history and tradition'”. 23 Same-sex marriage cannot be considered 
“deeply rooted” in history or tradition, and thus should not be protected under Due Process. Alito 
also feared the decision would contribute to a “tyranny of the majority”, and that those who hold 
views against it would risk being labeled as bigots and be discriminated against by society. 24 
 
 

 
WALKER V. TEXAS DIVISION, SONS OF CONFEDERATE VETERANS 

 
Docket Number     14-144 
Date Argued          March 23, 2015 
Date Decided         June 18, 2015 
Vote                       5-4, for Walker 
Issues                     First Amendment, Freedom of Speech 
 
 
 This case covered the Supreme Court's ruling on a controversial use of the Confederate 
Flag on government-issued property. The Texas Division of the Sons of Confederate Veterans 
and its officers (the SCV) applied for the issuing of a specialty license place to be issued by the 
Texas Department of Motor Vehicles (the TDMV). This specialty plate would feature a 
confederate flag both in the organization's logo and one faintly printed on the background25. The 
TDMV refused to create the license plate after multiple complaints from the public, which 
prompted the SCV to sue on the grounds of a violation of their First Amendment rights. The 
district court ruled in favor of Walker, stating that license plates were government property and 
																																																													
19Id. at 1 (Scalia, J., Dissenting) 
20Id. at 4 (Scalia, J., Dissenting) 
21Id. at 1 (Thomas, J., Dissenting) 
22Id. at 2 (Thomas J., Dissenting) 
23Id. at 2 (Alito J., Dissenting) 
24Id. at 7 (Alito J., Dissenting) 
25Walker v. Texas Division, Sons of Confederate Veterans, 576 US ___ (2015) 3-4 



 

  

could be reasonably regulated as they were not considered a public forum. The United States 
Court of Appeals for the Fifth Circuit reversed this decision, arguing that the denial was a form 
of discrimination against the symbology of the Confederate Flag. 
 The Court ruled 5-4 in favor of Walker, with the opinion written by Justice Breyer stating 
that “government statements (and government actions and programs that take the form of 
speech) do not normally trigger the First Amendment rules designed to protect the marketplace 
of ideas.26” The Court based their decision upon the precedents set in Pleasant Grove City v. 
Summum, in which the Court upheld the city's refusal to allow the Summum church to erect a 
monument of the Seven Aphorisms on grounds that it would be a government establishment of 
religion. In that case, the Court found that the “display of a permanent monument in a public 
park” would be perceived by an ordinary and reasonable observer to reflect the values of the 
government27. This was in direct contrast to protests and demonstrations, which were finite in 
time. Like a monument, the Court considered a license plate to be similar as a permanent fixture. 
The Court also found that license plates are reasonably associated with the government, stating 
that “drivers displaying license plates 'use their private property as a ‘mobile billboard’ for the 
State’s ideological message.'28” Thus, the TDMV did not violate the First Amendment in refusing 
to produce the SCV's license plates, as government property is held to a lower standard of free 
speech, as they are required to uphold viewpoint neutrality. 
 A dissenting opinion was written by Justice Alito, with Chief Justice Roberts, Justice 
Scalia, and Justice Kennedy joining. Alito argued against the Court's decision to find license 
plates government property. Alito cited that over 350 varieties of specialty Texas license plates 
were available, and that many plates honor private institutions and corporations as well29 (some 
examples given were high schools, the Masons, soft drinks, and NASCAR drivers). Many plates 
also feature tongue-in-cheek slogans such as “Rather Be Golfing”. Alito states that, by the logic 
used behind the Court's decision, all of the previous license plates can be seen as examples of 
government speech (which he considers ludicrous). Instead, Alito asserts that “while all license 
plates unquestionably contain some government speech (e.g., the name of the State and the 
numbers and/or letters identifying the vehicle), the State of Texas has converted the remaining 
space on its specialty plates into little mobile billboards on which motorists can display their own 
messages.30” Thus these plates should be considered an expression of personal speech, and its 
limitation would indeed be a violation of the First Amendment. 
 
 

ELONIS V. UNITED STATES 
 

Docket Number         13-983 
Date Argued              December 1, 2014 
Date Decided             June 1, 2015 
Vote                           8-1, for Elonis 
Issues                        First Amendment, 18 U. S. C. §875(c) 
 

																																																													
26Id. at 5 
27Pleasant Grove City v. Summum, 555 U.S. 460 (2009) 
28Walker v. Texas Division, Sons of Confederate Veterans, 576 US ___ (2015) 17 
29Id. at 2 (Alito, J. Dissenting) 
30Id. at 3 



 

  

 With the increasing assimilation of social media in society, the definitions of “protected 
speech” must also be examined. In this case, the Supreme Court ruled on whether or not Anthony 
Douglas Elonis' posting of violent rap lyrics to Facebook constituted as “threatening language”. 
Elonis posted his rap lyrics to Facebook after a recent divorce under the pseudonym “Tone 
Dougie”. The lyrics contained several instances of graphically violent language and imagery 
pertaining to his former wife, select co-workers, a kindergarten class, and state and federal law 
enforcement. They were interspersed with disclaimers that stated the lyrics to be “fictitious” and 
not depicting real persons31. Despite this, he was indicted by a grand jury on five counts of 
threats relayed through interstate communication, a violation of Federal Law 18 U. S. C. 
§875(c). He appealed to a district court stating that the government must prove that he intended 
to communicate a “true threat”, but was dismissed on the grounds that a “reasonable person 
would foresee that his statements would be interpreted as a threat32. Elonis was convicted on four 
of the five counts and served 44 months in prison. He appealed to the United States Court of 
Appeals for the Third Circuit, who affirmed the district court's decision. 
 With no luck on those fronts, Elonis appealed to the Supreme Court, who ruled 8-1 that 
Elonis' actions did not meet the requirements of a “reasonable person's” expectation of 
threatening speech. The Court's opinion was written by Chief Justice Roberts, and joined by 
seven other Justices. Roberts offered in his opinion that the “reasonable person” standard that 
Elonis was convicted on is acceptable for tort law, it is inconsistent with conventional 
requirements for establishing criminal conduct: mens rea, or an awareness that one's actions are 
wrong33. While ignorance of the law is not usually considered a defense for breaking it, sufficient 
mens rea is required to prove the comission of a crime under Federal Law §875(c)34. Roberts 
argued that, at best, Elonis was negligent and reckless in his posting of speech that could 
potentially be seen as threatening. However, because Elonis obviously did not post the lyrics 
with the intent to threaten, as evidenced by his disclaimers and taking up of a persona, the Court 
found insufficient reason for Elonis' indictment. 
  Justice Alito wrote a concurring opinion in which he agreed that mens rea was required 
to convict under §875(c), but also argued that the Court's ruling left the definition of the terms 
necessary to prove a crime needlessly vague (how do you know if someone is purposeful or 
simply negligent or reckless?). Alito stated that “this will have regrettable consequences. While 
the Court has the luxury of choosing its docket, lower courts and juries are not so fortunate. They 
must actually decide cases, and this means applying a standard35.” Alito also addressed the First 
Amendment issue brought up by Elonis, stating that song lyrics are generally performed in 
public or sold in recorded form, whereas statements made on social media “pointedly directed at 
their victims” and thus are much easier to be taken seriously36. To allow this would be to allow 
anyone to post threats on social media under the guise of “lyrics” or other similar artistic 
expressions. 
 Justice Thomas, as the sole dissenter, argued that the Court's ruling “casts aside the 
approach used in nine Circuits and leaves nothing in its place37”, in essence removing a general 
standard used by the justice system without replacing it. Thomas also cites precedent, such as 
																																																													
31Elonis v. United States, 575 US ___ (2015) 1 
32Id. at 1 
33Id. at 13 
34Id. at 2-3 
35Id. at 1-2 (Alito, J. Concurring) 
36Id. at 6 
37Id. at 1 (Thomas, J. Dissenting) 



 

  

Rosen v. United States, in which the Court ruled against the petitioner even though he did not 
show purposeful intent38. 
 
 
 
Dedication to Justice Scalia: 
 
 We at the Brandeis Law Journal would like to dedicate this year's Supreme Court 
Roundup in memoriam of Justice Antonin Gregory Scalia, who passed away on February 13, 
2016, after nearly thirty years of service on the Supreme Court. A strong supporter of the 
originalist and textualist Constitutional interpretations, Scalia proved himself numerous times to 
hold strong conviction in his beliefs, even when they proved controversial with the American 
populous. Regardless of our personal views on his political beliefs, we greatly respect him for his 
service to this country. 
 
 
 
 
 
 
 
 
 

 

																																																													
38Id. at 4 



 

  

 




