review session #6 judicial branch the courts civil liberties civil rights
TRANSCRIPT
Review Session #6Judicial Branch
The Courts
Civil Liberties
Civil Rights
• What are the perspectives that shape court rulings?• What are the processes and politics involved in a
case before the Supreme Court?• How do civil liberties and civil rights connect with
the Constitution?• What are significant cases that shape our present
view of CL/CR?
• Describe the role and influence of the judicial branch, relating it to important concepts and cases involving civil liberties and civil rights
Marbury vs. Madison
• Established the principle of judicial review
• Impact makes the Supreme Court an equal player with Congress and the president
= =
Judicial Points of View
Liberals Conservatives
Judicial ActivismLoose ConstructionistMake policy decisions
Correct injustices (that other don’t)
Judicial RestraintStrict Constructionist
Minimal policy-making roleLeave (defer) to other 2
The Hail to the Chiefs….Justices, That Is
1801 - 1835
John Marshall
Federalist extraordinaire!!!Marbury vs. Madison
McCulloch vs. MarylandGibbons vs. Ogden
Earl Warren
1953 - 1969
Superchief or Impeach?Brown vs. Board of EdGideon vs. Wainwright
Miranda vs. Arizona
Warren Burger
1969 - 1986
Keep the activist rulings?!Roe vs. WadeUS vs. Nixon
WilliamRehnquist
1986 - 2005
Federalism ReturnsBush vs. GoreUS vs. Lopez
US vs. MorrisonClinton impeachment
John Roberts
2005 - ??
A slow move rightDC v. Heller
Citizens United v FECMcDonald v Chicago
Federal Judicial Numbers
3
4
5
9
13
94
Article with info on Judicial Branch
# of justices needed to puta case on the docket
Majority vote on the Supreme Court
# of justices on the SCOTUS (determined by Congress)
# of federal appellate courts
# of federal district courts
Appointment
• All Federal judges!!• Presidential nomination• Senate confirmation:
– Majority vote needed– A political process;
from committee
hearings to the floor
vote
Chance for legacy!!
Appointment – Denied!!Being “Borked”
• Reagan nominates Robert Bork in 1987
• Ted Kennedy goes public w/outrage
• Longest Senate confirmation hearings ever!
• IG’s mobilized as never before to urge a “No”– ACLU, NOW, NAACP, and Planned Parenthood
– Example of IG’s working as a coalition!
• “Borked” = coordinated attack against a nominee to prevent his or her Senate approval
Hyperpolitical
Selection Criteria
• Political ideology
• Party and personal loyalties
• Acceptability to the Senate
• Judicial experience
• Race and gender
• Litmus test
Roev.
Wade
Removal
• Removal (Impeachment)
• Retire
• Resign
• Because of their life tenure, they are suppose to be above the political games in which elected officials engage, along with being less affected by public opinion
Layers of the Court System
• Federal level
• State level
Each level has 3 tiers:
District
Appellate
Supreme Court
Arrival to the Court
• On appeal from the a state Supreme Court• On appeal from a state Federal Court of Appeals (#1)• A conflict between 2 states needing a federal solution• Most common caseload sourceappellate jurisdiction
• Petition the court for a writ of certiorari • Rule of four grants the writ• Placed on the docket briefs filed (IG input…)• Oral arguments • Conference factors in decision (ex.- stare decisis) vote• Opinions written
Let me continue…Briefly…
• Amicus Curiae briefs are submitted– Means for interest groups to lobby the courtLobby,
lobby,
lobby
Inte
rest
gro
up acc
ess
Remember: IG’s never
represent public opinion!!
IG’s can fund cases IG’s can file lawsuits/use litigation
My Opinion on Decisions
• Majority contains what the court orders, its decision!
• Concurring supports the majority opinion, but for a different reason
• Dissenting opposes majority decision, tells why
• Per Curiam “by the court”; the court acting as a whole; unsigned
Standing for the Sitting
• You must have connection to or suffer harm from…..the party involved….to have the legal right to bring the suit
Powerful? Powerless?
• “Least Dangerous Branch” – Alexander Hamilton (Fed #78)– No power of the purse (Congress)– No power of the sword (President)
• “Most feared group of 9 in the country” – – Unelected– Not easily removable– Activists “make” laws
from the bench- Hard to check!!
Civil Liberties
• Protections from the abuse of government; power enjoyed by all
• Fundamental rights that protect citizens from government intrusions
• The Bill of Rights = Civil Liberties
Establishment Clause• Prohibits government from establishing one
religion as the official religion in our country
• Cannot take action to show preference to one religion over another
• 1st Amendment • Key cases: Engel v. Vitale (1962)
Lemon v. Kurtzman (1971)
Free Exercise Clause
• Prohibits the government from hindering the free exercise of one’s religion
• 1st Amendment
• Cases and Topics:Oregon v. Smith (drug use in religious ceremonies - no)
Reynolds v. U.S. (polygamy - no)
1st Amendment
• Speech Clause
Symbolic Speech• Non-Verbal expression of belief
• It is protected as a form of speech
(especially if political speech)
• Tinker v. DesMoines (1969)
• Texas v. Johnson (1989)
Rights: School v. Real World
• Students do not lose their rights, but they noticeably limited in the school context
• Tinker v. DesMoines (1969)
• Bethel v. Frasier (1986)
• Hazelwood v. Kuhlmeier (1988)
• Morse v. Frederick (2007)– Bong Hits 4 Jesus
• Safford USD#1 v. Redding (2009)
1st Amendment
• Press Clause
• Allows for Interest Groups and Political Parties to publish their views/opinions
Prior Restraint• When government stops expression before it
is made (censorship!)• Ex: when gov’t prohibits a demonstration by a
radical group b/c it is likely to be violentPresumed to be unconstitutional
• Good case examples:
Not an absolute right (think Near v. Minnesota)
NY Times v. U.S. (1971) – with the Pentagon Papers
4th Amendment
• No unreasonable searches and seizures
• Authorities must follow these established procedures!!
• Probable Cause A warrant is issue when a demonstration of the facts permits a reasonable belief that a crime was committed
Exclusionary Rule
• Evidence illegally seized can be withheld as evidence in the criminal prosecution of the accused
• Mapp v. Ohio (1961)
• Incorporation occurs here b/c state law of Ohio is held to the federal exclusionary standard!
5th Amendment• Grand jury – determines whether to bring
criminal charges
• No double jeopardy
• Plead the 5th (no need to self-incriminate)
• Due Process Clause (restrains Fed govt)
• Eminent Domain (Takings Clause)– Kelo v. New London (2005)
6th Amendment
• Speedy and public trial
• Impartial jury
• Know the charge against you
• Confronted with witnesses (question them)
• Call witness
• Right to counsel– Key case: Gideon v. Wainwright (1966)
8th Amendment
• No excessive Bail or Fines
• No Cruel and Unusual Punishment
• Death penalty okay in 38 states and w/FedsFurman v. Georgia (1972) – DP; noGregg v. Georgia (1976) – DP; yesBaze v. Rees (2008) – one approach; yes
Due Process Clause (14th A)
• The door through which the Bill of Rights is applied to the states
• The idea that the Bill of Rights is applied to the states in a gradual manner, on a case by case basis, via the due process clause of the 14th Amendment……
• = SELECTIVE INCORPORATION
Incorporation Theory
• Begins with Gitlow v. New York (1925)• Begins to undo Barron v. Baltimore (1833)• SC applied the Bill of Rights to the states
through the application of the 14th A’s due process clause
• Each liberty in the B of R is applied one at a time, case by case “selectively”
• Not all features of the B of R are incorporated!
ACLU
• American Civil Liberties Union
• Interest Group!! Uses litigation!!
Right to Privacy & Abortion
• Griswold v. Connecticut (1965)
• Roe v. Wade (1973)
• Lawrence v. Texas (2003)– Gov’t cannot have a law prohibiting
consentual sex between people of the same sex (no legitimate interest in regulating this)
Civil Rights
• Protections from discrimination based on race, gender, or other minority status
• Can’t treat people w/unreasonable/ unconstitutional differences
• Involve constitutional rights that are afforded to people as individuals
• Think EPC of the 14th Amendment
Civil War Amendments
• 13
• 14
• 15
Equal Protection Clause (14th A)
• Clause that prohibits states from denied its citizens equal protection under the law
• Used to combat various types of discrimination!!
• The door through which some Civil Rights legislation occurs– CRA (1964)– VRA (1965)
Types of Segregation• DeFacto segregation “by fact”, based
on past conditions (economic, social, residential); often results from housing patterns rather than law
• DeJure segregation “by law” or agency action; this is segregation required by the government
Other Methods of Disenfranchisement/Discrimination
• White-only PrimariesEnded in the Texas case Smith v. Allwright (1994)
• Poll Taxes
• Literacy Tests
• Physical Intimidation
Poll Taxes and the 24th Amendment
Plessy vs. Ferguson (1896)
Busing and Swann (1971)
• Charlotte-Mecklenburg Board of Education
• Court rules that it’s okay to remedy past wrongs with broad and flexible actions
• Desegregation regarding busing and personnel
Civil Rights Act of 1964
• Prohibited discrimination in hiring• Prohibited discrimination in places of public
accommodations• Outlawed bias in federally funded programs• Created and enforced by the EEOC
(Equal Employment Opportunity Commission)• Key case:
EEOC
• Created by JFK through an Executive Order
• The primary U.S. Agency for enforcing civil rights and equal opportunity in Federal and private sector workplaces
Equal Employment Opportunity Commission
Voting Rights Act of 1965• Suspends literacy tests
• Empowered federal officials to register and protect voters
• Empowered federal officials to count ballots
• Prohibits states from changing voting procedures w/o federal permission
19th Amendment (1920)• Women voting!! Doubles the electorate!!• Part of a series of Progressive reforms
– Australian ballots– Direct election of Senators– Direct primaries– Civil service exams– Initiative/Referendum/Recall procedures
• All meant to: weaken power of partiesenhance power of people
Title IX
Equal Rights Amendment
Passes out of Congress in 1972
Fails to reach the ¾ of states needed for ratification
(7 year window informal amendment idea!!)
Only received 35 of 38 states needed
(even after a 3 year “extension” granted by Congress and the President)
Bakke case (1978)
Korematsu Case
ADA (1990)
• Equal access for those with physical and mental disabilities
• Reasonable accommodations must be made
Reed vs. Reed (1971)
• Males were > females in the appointment as administrators of estates
• Court rules this unconstitutional b/c it violates the EPC
Dred Scott (1857)