The Federal Judiciary and Civil Rights (Liberties)

The Federal Court System

• Role(s) of the Court in making policy• Continuous constitutional convention (judicial

review)– Interpretation– Extension of laws– Designing remedies (busing, quotas, etc…)

Judicial Review

• Power to decide constitutionality• Main judicial power in checks and balances• Marbury v. Madision

Two views on application of judicial review

• “strict constructionists” conservatives – Limited role of the Court in policy-making– Don’t like “interpretation” of Constitution

• “activists” “legislativists” liberals– Courts role is to interpret the Constitution – Use their own experiences to make policy

Selection of Judges/Justices

• Appointment by President• Confirmation by Senate• “Senatorial Courtesy”• “Litmus Test”

Jurisdiction of Federal Courts

• Dual Court System (State and Federal)• Federal jurisdiction is in Article 3 and 11th

Amendment• Supreme Court of the US:– Original Jurisdiction:

• Diversity Cases (2+ States)• US v. State(s)• Reps of Foreign Gov’t v. US• States v. Citizen of other State

– Appellate Jurisdiction: any case may be appealed from lower federal Court or State Supreme Court

US Courts of Appeals

• Only appellate jurisdiction• Hears cases from:– District Courts– Regulatory Agencies (OSHA, EPA, etc…)– Courts Martial– Etc…

US District Courts

• Only original jurisdiction• Federal crimes• Civil suits under federal law• Diversity of Citizenship cases (50,000+ per year)• Admiralty and Maritime Cases• Bankruptcy Cases• Actions of Administrative Agencies (IRS, Social

Security, etc…)

State cases that can be appealed to Federal Courts

• Constitutional Questions• Death Penalty• Law Suits • Etc…

Getting your case to the Supreme Court of the US

• Court rejects 90-95% of applications for Writ of Certiorari

• Costs of Appeal is high– In forma Pauperis– ACLU– Fee Shifting– Interest Group assistance (NRA, LULAC, NAACP,

etc…)

Standing

• To have standing; must have real controversy with real adversaries

• Must demonstrate actual harm/damages• Being a taxpayer is not enough to being a suit• Government has “sovereign immunity”

Class Action Suits

• Brought on behalf of all those who have same issue – Silicone breast implants– Firestone Tires– Nova– Etc…

• Financially attractive to lawyers (million of “winners” rather than just one)

• Every member of the “class” must be notified so they can participate in the suit if they wish

The Supreme Court in Action

• Most cases come of writs of cert• Rule of Four• Briefs submitted and studied• Oral Arguments: 30 minutes per side; 10 minutes for rebuttal• Judicial Conference; chief Justice polls members of the

Court; case decided• Chief Justice assigns one of the Majority to write the Opinion

of the Court– Majority Opinion (per curium– no author)– Concurring Opinion– Dissenting Opinion

Checks on the Judiciary

• Public Opinion (limited)• President: nomination of judges/justices• No power to enforce rulings• Congress – Confirmation– Impeachment– Changing # on the Court(S)– Revising legislation declared unconstitutional– Changing jurisdiction of a Court (not Supremes)– Proposing Constitutional Amendment

Protecting the Liberties of the Individual

• Purpose of the Bill of Rights was to protect the individual by limiting the power of the federal government

• Original constitution has few protections:– Habeas Corpus– No Bill of Attainder or Ex Post Facto Laws– Privileges and Immunities Clause– Full Faith and Credit Cause– Definition of Treason

Bill of Rights Protects:

• Personal Liberties: 1st Amendment• Personal Security: Amendments 2-4 • Rights of the Accused: Amendment 5-8

• Was not intended to restrict States• Incorporation to the States (except 2nd $7th

amendments) through 14th Amendment’s Due Process Clause

Why do civil liberties cause conflict?

• Rights often come into conflict with one another

• Policy entrepreneurs get involved and stimulate debate (and controversy)

• Cultural and religious conflicts/diversity

Freedom of ExpressionSpeech, Press, Assembly, and Petition

• Written, spoken, and symbolic• Purpose of 1st amendment is to protect unpopular

speech/expression• Blackstone: no prior restraint, but can arrest for any

“unpleasant” or “seditious” expression• 1917-1919: Congress outlaws any “expression advocating

treason, insurrection, or forcible resistance to federal law”.• 1919 : US v. Schenck: “Clear and Present Danger” Rule

used to balance freedom and national security. “Cry fire in a crowded theater”

Expression

• 1925: Gitlow v. NY: 14th amendment’s due process clause makes free speech apply to the States

• 1957: “Calculated to Incite” violence Test• 1969: Brandenburg v. Hayes: “Imminent Unlawful

Act” Test• 1977: Nazi’s plan march in Skokie, IL. State

outlaws. Nazi’s win in Court. Can’t prevent expression because you don’t like their political views

Court Standards on Expression

• Preferred Position: speech always most important• Prior Restraint: illegal• Imminent Danger: going to happen NOW!• Neutrality: all laws must treat all groups equally;

can’t discriminate• Clarity: all laws must be understandable by the

average person• Least Restrictive Means: gov’t regulation has to be as

limited as possible in its interference with expression

Not all expressions are legal:

• Libel: false and damaging written expression• Slander: false and damaging verbal expression• Obscenity: Miller v. California; 3 part test!• False Advertising• Some symbolic expressions• Hate speech?• Etc…

Freedom of Religion

• Establishment Clause: “Congress shall make no law respecting an establishment of religion”

• 1789: no national religion• Jefferson: “created a wall of separation

between Church and State”• Supreme Court has generally ruled in favor of

the “wall”

Supreme Court and Free Exercise

• School Prayer : Unconstitutional!• Engle v. Vitale• Murray v. Curlette• Wallace v. Jaffree• Santa Fe v. Doe

Legal School Prayer Guidelines

• Must be student –initiated • Must be student –led• Must be open to all faiths• Must be non-disruptive of the educational

process• Cannot be school sponsored• No adults may participate vocally!

Creationism and Evolution

• Epperson v. Arkansas• Edwards v. Aguilard

• Students are entitled to have all the information regarding evolution/creation

Released Time

• Zorach v. Clauson• Students may be excused from class to attend

required religious instruction or services• Religious instruction/services may not be held

on campus• Students may not be punished for religious

requirements

State Aid to Religious Schools

• Lemon v. Kurtzman “Lemon Test” or Child Benefit Test

• States may provide aid to private schools as long as the aid neither promotes nor inhibits the religion and is of benefit to the child– Free lunch– School buses– Textbooks– Tax credits for tuition, uniforms, etc…

Lemon Test

• Secular Purpose• Neutral purpose (neither advances nor inhibits

the religion)• No excessive entanglement

The Court has allowed:

• Nativity Scenes • House/Senate prayers• Military Chaplains• “In God We Trust” on $• God in Pledge• God in Oath of Office• God in Oath in Court• Etc…

Free Exercise Clause

• “Congress shall make no law… prohibiting the free exercise of religion”

• Meaning: You can believe anything you want!• No government interference in beliefs• Government may make reasonable restrictions

on religious action to protect the health, safety, morals, and welfare of the community

Free Exercise Clause• Religion is not an excuse for violating the laws of the US or of the States• Cases:

– Conscientious Objection for Draft– Refusal to work on Sabbath– Unemployment Compensation– Compulsory Education Laws– Pledge of Allegiance– Snake Handling– Drug Use in Religious Ceremony– Medical Care– Blue Laws– Animal Sacrifice– Nudity– Etc…

Right to Keep and Bear Arms

• Two schools of thought:– Guarantee of individual right to own/possess– Guarantee that each State will have an armed

militia for defense

– Supreme Court has generally agreed w/ 2nd

Right to Keep and Bear Arms

• Texas and other States can prohibit, regulate, and restrict individual rights to ownership and possession of weapons (guns)– 2nd amendment applies/restricts only the National

government (has not been incorporated)– States have the “police powers” from the 5th

Amendment reserved to them to protect public safety

– The Amendment refers to muskets, not handguns

Texas Handgun Law

• Possession of a handgun on or about your person in public is illegal

• Ownership of a handgun is restricted• Permit to Carry a Concealed Weapon

requirements• Game Wardens and Law Enforcement Officers

are exempt from THGL

4th Amendment

A legal search usually requires:1. Probable Cause (reasonable suspicion)2. Warrant (court order)

Requirements for a Warrant

• Probable Cause• Affidavit• Judge’s Signature• List of what is to be searched/seized (specific

in scope)• Served in valid manner

The Exclusionary Rule

• Prohibits the use of illegally obtained evidence in criminal court

• Weeks v. US (federal)• Mapp v. Ohio (States- incorporation case)• Exceptions:– Good Faith– Inevitable Discovery– Honest Mistake– Police questioning of juveniles– Over-riding considerations of public safety (terrorism!)

Legal Warrantless Searches• Hot Pursuit• Plain View• Moveable Crime Scene• Emergency Search• Garbage• Inventory• Sobriety/Insurance Checkpoint• Airport Searches• Border Crossings• Student Searches• Nervousness/run from police• Consent• ETC…

Due Process of Law (5th/14th Amendments)

• Government may only take one’s life,, liberty, or property after following the correct rules, laws, and procedures

• Procedural• Substantive• 5th: Federal• 14th: States (incorporation)

Privacy: 5th and 9th Amendments

• Issues of Importance:– Birth Control– Abortion– Medical Treatment/Information– Employee/Student Drug Testing– Wiretaps– Trespass– Invasion of Privacy/sale of personal information– Photography without consent (publication)– Etc…

Rights of the Accused

• Grand Jury Indictment for major felonies is required

• Right to be informed of the charges• Plead the 5th: don’t have to self-incriminate– Miranda v. Arizona– Miranda Rights– Applies only to verbal testimony and confession

Miranda Rights

Rights of the Accused• Right to Counsel

– Gideon v. Wainwright– Escobedo v. Illinois

• Right to Compel Witnesses to Testify• Right to Confront Witnesses• Due Process of Law• Speedy Trial• Public Trial• Impartial Jury of Peers• No Excessive Bail• No Cruel and Unusual Punishments• Right to Appeal

Death Penalty

• Not considered cruel and unusual punishment as long as State follow guideline

• Can only be given if convicted of Capital Murder• Two step trial• Immediate Appeal to States’ highest court required• Cannot be given death penalty if:

– Were under 18 when crime was committed– Are currently insane– Were insane when the crime was committed – Are mentally retarded or incapacitated