The Missouri Bar Constitution Day Program

THE THIRD BRANCH OF GOVERNMENT—THE JUDICIARY

A Joint Project of the Missouri Bar and HEC-TV Live

September 17, 2010

STUDY GUIDE (Prepared by Millie Aulbur, Director of Citizenship Education, The Missouri Bar)

Introduction

The Missouri Bar and HEC-TV are proud to host The Missouri Bar Constitution Day Program 2010 for the third consecutive year. This year we are pleased to announce that the United States District Court of Eastern Missouri and the Supreme Court of Missouri will provide program support. The 2010 program will focus on both the federal and state judiciaries. The nominations and confirmations of Supreme Court Justices Sonia Sotomayor and Elena Kagan have highlighted the constitutional roles of the executive and legislative branches in the federal judicial selection process. Likewise, recent criticisms of the Missouri Non Partisan Court Plan have drawn attention to Missouri’s judicial selection process. The 2010 program will consist of two different live events. The 10:00 a.m. broadcast will focus on the judicial selection process and the 1:00 p.m. broadcast will focus on how judges make their decisions and the debate about the various philosophies that arguably affect judicial interpretation. Constitution Day participants will have the opportunity to listen to a panel of experts on these topics and to submit their own questions and comments to the panel.

Objectives: Students will be able to:

1. Describe how both federal and Missouri judges are selected to serve in the courts.2. Evaluate and defend what the student believes is the best process for selecting judges

who can be fair and impartial.3. Explain how the process for choosing judges impacts the court’s constitutional role in

a system of separation of powers and checks and balances.4. Compare and contrast the federal and state methods of selecting judges.5. Explain the various methods or philosophical foundations of constitutional

interpretation.

Purpose of the study guideThis study guide is intended as a resource for classroom teachers to prepare students for the Constitution Day broadcasts and to provide follow-up reflection questions. The study guide has background materials, classroom activities, enrichment suggestions and links to outstanding Internet sites.

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HOW ARE JUDGES CHOSEN?10:00 Constitution Day Program

Judges should do what the law requires in all instances. That's why the members of the judiciary are not elected. We have a basically democratic form of government, but the judiciary is not elected so that they don't do anything under fire. The legitimacy of the court would be undermined in any case if the court made a decision based on its perception of public opinion. It should make its decisions based on the Constitution & the law. It should not sway in the wind of public opinion at any time.

---Justice Samuel Alito at his confirmation hearing in January 2010

IntroductionThe two core concepts found in the United States Constitution for creating a government are separation of powers and a system of check and balances. How judges are selected for the federal courts is a perfect example of how the Framers of the Constitution incorporated these concepts into our government. While the judiciary is a separate and distinct but equal branch of government with the executive and legislative branches, both of these branches are involved with choosing judges. Article II, Section 2 provides that the president shall nominate and by and with the Advice and Consent of the Senate, shall appoint . . . judges of the Supreme Court . . . and other officials of the United States. For most of our nation’s history, the process of the president nominating someone to become a judge and the Senate confirming that nomination was fairly quick and non-controversial. However, beginning with some of President Ronald Reagan’s nominees in the 1980s and with the debut of 24 hour news media, the process has become highly visible and, at times, contentious.

Missouri’s original constitution modeled the federal selection process with the governor nominating someone for judge and the Missouri Senate either rejecting or confirming the nomination. However, in the 1850s, Missourians began electing all of their judges. When it became clear that “dirty” politics were involved in electing judges, Missourians adopted the Missouri Non Partisan Court Plan where all appellate level judges are selected through a combination of actions by the judiciary and executive branches, followed by a retention vote by the people. (For more information on the “dirty”politics and other historical information about the Missouri plan, go to www.mobar.org where there is a link to information about the Missouri plan.) Some of Missouri’s larger counties also have adopted the plan for selection of trial level judge. In recent years, some critics of the Missouri Plan have campaigned for various changes to how Missouri judges are selected. Some suggest election of all judges and some suggest going back to the system Missouri had when it first became a state.

Both the federal selection process and Missouri’s Non Partisan Court Plan reflect the Framers of the United States Constitution belief that the judiciary needed to be as independent as possible from political influences. The 10:00 a.m. Constitution Day program and this study guide explore this idea.

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Teaching about the federal and state selection of judges:

1. Before talking about the selection of judges, some discussion is needed as to the role of the courts in a system of separation of powers and checks and balances. There are several excellent resources to aid in this discussion:

Go to The Missouri Bar website, www.mobar.org to the Educators section to lesson plans where a series of lesson plans on the judiciary are located, including the role of the courts in our system of government.

Go to the Our Courts website and its interactive section, www.icivics.org, to the lesson plans on the judicial branch.

See the handout included with this study guide called Judges—Umpires of the Law.

2. Distribute the student handout—Federal Judicial Selection. (Most of this material was reprinted from the Constitutional Rights Foundation website at www.crf-usa.org with edits and additions by The Missouri Bar. This lesson plan may also be found at www.mobar.org in the Educators section under lesson plans. )

3. Distribute the student handout—Missouri’s Non-Partisan Court Plan. (Most of this material was reprinted from www.courts.mo.gov with additions and edits by The Missouri Bar.) Have the students read it silently or read it together as a class.

An outstanding additional resource for learning about Missouri’s Non Partisan Court Plan is HEC-TV’s Legally Speaking program that talked about the plan. Go to http://www.hectv.org/programs/ser/legallyspeaking/ep171.php .

4. After reading both handouts, distribute student handout—Comparing and Contrasting Missouri’s Non Partisan Court Plan and Federal Selection of Judges. Do it as a class project or in groups of 3-4.

5. After completing the comparison and contrast charts, discuss the questions.Possible answers are on a chart on the next page.

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Missouri United StatesRole of the Executive Appoints the judge from

three chosen by the non partisan panel.

Nominates a candidate.

Role of the Legislature None. Can call for impeachment of a judge.

Has hearings and rejects or approves the nominee. Can call for impeachment of a judge.

How are politics minimized?

No direct elections. The non partisan panel has members of both parties. The candidates must apply to be considered.

No direct elections of the judges.

Role of the people Retention elections. Elects the governor who makes the appointment.

Elects the president and the Senators who make the selection.

Term limits? Retention elections are 12 years for appellate judges and 6 for circuit judges. Mandatory retirement at age 70.

Serve for life as long as they have good behavior.

Enrichment and extension:1. Discuss how the selection of judges is related to the constitutional role of the

courts.

2. Show a clip from the Miracle on 34th Street movie and discuss the role of politics in the court room proceedings.

3. Discuss how campaign contributions for an elected judge might play a role in judicial decisions.

4. Discuss landmark Supreme Court cases where the decision might have been different if the judges were elected and had to run for re-election.

5. For in-depth lesson plans on the rule of law, the role of the courts and judicial review, go to www.mobar.org, Educators’ section, then to lesson plans.

6. General Information about the Constitution Constitution Day provides an excellent opportunity to consider the philosophical foundations of the Constitutional Convention of 1787 and the constitutional ratification process. The following websites are excellent and provide a lot interactive exercises:

The National Archives site at http://www.archives.gov A newly designed National Archives site on all of the founding

documents at http://www.archives.gov/exhibits/charters/charters.html

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The National Constitution Center at www.constitutioncenter.org The Constitutional Sources Project at http://consource.org The United States Courts at www.uscourts.gov. Our Courts (Justice Sandra Day O’Connor’s project) at

www.uscourts.gov

How Do Judges Decide Cases?1:00 Constitution Day Program

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IntroductionThe role of judges in a system of separation of powers and checks and balances is to interpret the law. The only guide that judges in both the federal and state courts have for how they interpret the law is the oath they take. Federal judges swear to uphold the United States Constitution and the laws of the United States. Article VII, Section 11 of the Missouri Constitution provides that “Before taking office, all civil and military officers in this state shall take and subscribe an oath or affirmation to support the Constitution of the United States and of this state, and to demean themselves faithfully in office.” Given the general nature of these oaths, it is not surprising that there are varying, and, sometimes seemingly conflicting, ways that judges view how they should interpret the law.

Supreme Court watchers and critics of the court have coined several terms in an attempt to describe a particular philosophy that a judge may follow in interpreting the law while trying to decide a case. Some of these terms are judicial restraint, judicial activism, original intent, living document, literalism, textualism and strict constructionism. In recent years, United States Supreme Court Justices Stephen Breyer and Anton Scalia have appeared on C-Span and talked about how they go about deciding a case. (A clip from one of their programs will be shown on Constitution Day.) Judge Scalia rejects the idea that the Constitution is a living document; he contends the Constitution is a legal document and, as a judge, he is bound by the words in that document. Justice Breyer opines that the Constitution is a “living” document to the extent that it can be found applicable to situations the Framers of the Constitution could not envision. (Go to http://www.c-span.org/Series/America-and-the-Courts.aspx for programs about the court. See also http://fora.tv/2006/12/05/Justices_Stephen_Breyer_and_Antonin_Scalia )

For academics, Supreme Court watchers and constitutional scholars, the debate about the philosophical learning of the judges is one sure to be around for a long time. Furthermore, with every presidential election, one of the issues has become what kind of judge that president will nominate and what kind refers to a nominee’s perceived philosophy.

Perhaps the most often cited quote regarding the role of court is an alleged conversation between Supreme Court Just Oliver Wendell Holmes and the esteemed federal judge, Learned Hand:

Justice Holmes and Judge Learned Hand had lunch together and afterward, as Holmes began to drive off in his carriage. Hand, in a sudden onset of enthusiasm, ran after him, crying, “Do justice, sir, do justice.” Holmes stopped the carriage and reproved Hand: “That is not my job. It is my job to apply the law.”

Teaching about how judges decide cases:

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1. Before talking about how judges decide cases, some discussion is needed as to the role of the courts in a system of separation of powers and checks and balances. There are several excellent resources to aid in this discussion:

Go to The Missouri Bar website, www.mobar.org to the Educators section to lesson plans where a series of lesson plans on the judiciary are located, including the role of the courts in our system of government.

Go to the Our Courts website and its interactive section, www.icivics.org, to the lesson plans on the judicial branch.

See the handout included with this study guide called Judges—Umpires of the Law.

2. Distribute the handout entitled Four Methods of Constitutional Interpretation. Discuss with the students that these are not the terms most often used by critics of the courts who instead use terms like judicial restraint or judicial activism. As a class, using an Internet search engine, look up how various websites define these terms and then determine if any of the textbook definitions are close in meaning to these terms.

3. Distribute the student handout for the 1:00 program entitled How Do Judges Decide Cases? As a class, discuss what these quotes might mean.

4. Some court commentators have opined a particular judge’s philosophy depends upon how someone feels about how the judge rules in a particular case. If someone agrees with the Court’s opinion, then the judge has exercised judicial restraint. However, if someone disagrees with the judge, then the judge is a judicial activist. Have students comment on this view.

Enrichment and extension:

1. Have students decide an actual Supreme Court case. Distribute the hand out entitled Hazelwood School District v. Kuhlmeier. After going over that handout, have the students analyze the case using the handout entitled Analyze the Case. After the students have made their decisions, distribute the handout on the decision.

2. After the students have viewed the Breyer/Scalia C-span clips and read some of their quotes about how they decide cases, distribute the handout entitled How Would They Rule? Each of the scenarios represents an actual Supreme Court case and, as a class, students should discuss each case and first decide how they would rule and then discuss how they think Justices Breyer and Scalia might decide these cases. (Some of the cases do involve one or both justices.) For information on the actual cases and further enrichment, go to:

a. Scenario 1—Go to http://www.streetlaw.org/en/landmark.aspx to the Tinker case.

b. Scenario 2--Go to http://www.streetlaw.org/en/landmark.aspx to the Johnson case. Note: Scalia participated in this decision.

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c. Scenario 3-- http://www.oyez.org/cases/2000-2009/2006/2006_06_278/ (Morse v. Frederick). Justices Breyer and Scalia participated.

d. Scenario 4-- http://www.oyez.org/cases/2000-2009/2009/2009_08_1521 (McDonald v. Chicago) Justices Breyer and Scalia participated.

e. Scenario 5-- http://www.oyez.org/cases/1990-1999/1994/1994_94_590 (Vernonia v. Acton) Justices Breyer and Scalia participated.

f. Scenario 6—Westboro Baptist Church v. Missouri. A federal judge in Missouri has ruled in favor of the church. This may be a case the Supreme Court will take.

7. General Information about the Constitution Constitution Day provides an excellent opportunity to consider the philosophical foundations of the Constitutional Convention of 1787 and the constitutional ratification process. The following websites are excellent and provide a lot interactive exercises:

The National Archives site at http://www.archives.gov A newly designed National Archives site on all of the founding

documents at http://www.archives.gov/exhibits/charters/charters.html The National Constitution Center at www.constitutioncenter.org The Constitutional Sources Project at http://consource.org The United States Courts at www.uscourts.gov.

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Alignment with Missouri’s Social Studies Standards for both programs

Constitution Day Show Me Performance Course level expectations/ Objectives Knowledge/Content Process depth of knowledge

Describe how both federal and Missouri judges are selected to serve in the courts.

Social Studies 3 Principles and processes of governance systems.

1.1 Develop questions and ideas to initiate and refine research.

1-A 1

Evaluate and defend what the student believes is the best process for selecting judges who can be fair and impartial.

Social Studies 3 Principles and processes of governance systems.

1.2 Conduct research to answer questions and evaluate information and ideas.

2-C 4

Explain how the process for choosing judges impacts the court’s constitutional role in a system of separation of powers and checks and balances.

Social Studies 3 Principles and processes of governance systems.

1.2 Conduct research to answer questions and evaluate information and ideas.

1-A/7-E 3

Compare and contrast the federal and state methods of selecting judges.

Social Studies 3 Principles and processes of governance systems.

3.6 Examine problems and proposed solutions from multiple perspectives.

1-A/B 3

Explain the various methods or philosophical foundations of constitutional interpretation.

Social Studies 3 Principles and processes of governance systems.

3.1 Identify problems and define their scope and elements.

1-A/B 3

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Student Handout for both the 10:00 and 1:00 programs

Judges—Umpires of the Law

(Prepared by Millie Aulbur, Director of Citizenship Education for The Missouri Bar, for the Missouri Press Association Newspapers in Education program.)

Many people agree that the baseball is a great American tradition. Most of us know that a baseball game has nine players from each team, managers and coaches and, of course, the men in black—the umpires. Even though the umpires may make us mad at times, we all know that it is necessary to have them for the game to be played in a fair manner.

We also have umpires in our federal and state government—they are the judges in our courts. Both our federal and state governments are based on three separate but equal branches—executive, legislative and judicial. The legislative branch, which is Congress at the federal level and the General Assembly at the state level, makes the laws. The executive branch, which is the president at the federal level and the governor at the state level, makes sure that these laws are carried out. The judicial branch, which is made of our courts, makes sure that the laws and how they are carried out are fair to everyone.

In baseball, the umpire does not make the rules for the game of baseball. He does not get to bat, pitch or field. He cannot like one team better than another; he has to be fair to both sides. He does not get to pick which game he umpires—he is assigned to a game by Major League Baseball. His only job is to decide if a pitch is a strike or ball and if a runner is safe or out. A judge’s job is exactly the same way. Judges do not get to make laws or decide how they will be enforced. They do not get to choose which cases come to their courts. They must be fair to all the people who come to the courts seeking justice. The judges must not favor one side or another. Their only job is to listen to the people who bring them their cases and then look at the laws the legislature has passed as well as the constitution and decide who is right or wrong. Our judges are the ones who make sure our government is fair to everyone, not just the majority or the richest or the most powerful.

Suggested activities:

1. Discuss what would happen in a baseball game without umpires. Why do we need umpires in government? Why might it sometimes be difficult for the legislative and executive branches to write and enforce laws that are not fair to everyone?

2. Research some historical examples of when the courts have decided that legislatures or executives have not been fair or exceeded their power: Marbury v. Madison, Brown v. Board of Education, Clinton v. City of New York, Youngstown Sheet & Tube Co. v. Sawyer.

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Student Handout for 10:00 program

Federal Selection of Judges

(Most of this material was reprinted from www.crf-usa.org with edits and additions by The Missouri Bar.)

The president “shall nominate and by and with the Advice and Consent of the Senate, shall appoint . . . judges of the Supreme Court . . . and other officials of the United States.

— U.S. Constitution, Article II, Section 2

This is all that the United States Constitution says about the selection of United States Supreme Court justices as well as federal judges at all levels—both appellate and trial judges. Realizing the importance of an effective judiciary, the framers of the Constitution gave both the president and the Senate a role in selecting judges. This was done to assure that the best people would be picked and that neither the executive nor the legislative branch could control the judiciary. But the Constitution did not define how the Senate should give its “advice and consent” on judicial appointments.

The Constitution also says nothing about the qualifications of federal judges. Over the years, presidents have looked for different qualities in their court nominees. One of the most important has been the nominee’s legal training and experience. Presidents have also made nominations so that the justices do not all come from one part of the country. A candidate’s religion—and more recently race and sex—have been additional factors considered by presidents trying to achieve a balanced court. Finally, most presidents want to put people on the court who share their philosophy about government, the law, and the Constitution. But it is not easy to predict how a person will decide cases once he or she gets on the bench.

The president may nominate a person for the court for many different reasons. But what about the other side of the Constitutional equation? For what reasons may the Senate reject a judicial nominee? Again, the Constitution is silent.

Shortly after the Constitutional Convention, Alexander Hamilton wrote in No. 76 of The Federalist Papers that there had to be “special and strong reasons for the refusal” of any presidential nominee. On the other hand, Hamilton recognized that the “advice and consent” requirement “would be an excellent check upon a spirit of favoritism in the President.”

Since 1789, when George Washington made his first Supreme Court appointments, the Senate has rejected 36 out of 160 nominations. Most of these rejections came about because the nominee lacked legal ability, was inexperienced, or had committed some unethical act. Some argue that these should be the only reasons for rejecting a Supreme Court nominee. Others, however, reason that senators should also have the freedom to vote against a nominee because of his or her ideas. Gaining insight into what a nominee’s

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particular judicial philosophy might be used to require long and tedious research into past opinions or writings and the nominee’s responses to the senator confirmation hearing panel. However, with current technology, a nominee’s paper trail is available almost simultaneously with the president’s announcement of his nominee.

The process of selecting a Supreme Court judge begins after the president is notified of a vacancy on the Court. The president then nominates someone to fill that vacancy. In recent years, presidents have turned to their advisors for recommendations before making a nomination. The process for selecting all other federal judges usually begins when the president receives recommendations from senators for candidates from their states. The president then makes nominations, which are forwarded to the Senate.

There is nothing in the Constitution about what the confirmation process should look like so the Senate makes it own rules about the process. After the Senate Judiciary Committee was created in 1816 and until 1868, the Senate decided by a motion whether to take up the nomination as entire body or whether to send it the committee. Beginning in 1868, all nominations were routinely sent to the committee. The committee held no hearings until the Supreme Court nomination of Louis D. Brandeis who did not testify at his own confirmation hearing. The first judge to testify at his confirmation hearing was Harlan Stone in 1925. The hearings attracted very little attention until the 1980s and now the confirmation hearings for Supreme Court judges are considered prime news events. After the Senate Judiciary Committee has completed the hearings, it makes its recommendations to the full Senate, which votes on the appointment.

All federal judges are appointed by the president, confirmed by the U.S. Senate, and serve for life. There is only one way under the Constitution that federal judges can be removed: The U.S. House of Representatives can vote to impeach any federal judge for “treason, bribery or other high crimes or misdemeanors.” The judge is then tried by the Senate. To remove the judge, two-thirds of the Senate must vote to convict. Only 13 federal judges in our history have been impeached by the House and just seven convicted by the Senate. All have been convicted for alleged criminal behavior. None has ever been convicted for making unpopular decisions or for holding an unpopular judicial philosophy.

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Student Handout for 10:00 program

Missouri Non Partisan Court Plan(Most of this material was reprinted from www.courts.mo.gov with additions and edits by The Missouri Bar.)

Missouri’s method for selecting some circuit court judges and all appellate judges is known as the Missouri Non Partisan Court Plan and has been called A Model for the Nation. The evolution of this plan is an interesting history lesson.

Partisan ElectionsIn the first 30 years of Missouri's statehood, the governor appointed the judges of the Supreme Court and circuit courts with the advice and consent of the senate. After much public discussion, voters amended the Missouri Constitution in 1850 to provide for the popular election of judges. This system continues in effect for most Missouri courts today. In most areas of Missouri, voters elect judges in partisan elections.

During the 1930s, the public became increasingly dissatisfied with the increasing role of politics in judicial selection and judicial decision-making. Judges were plagued by outside influences due to the political aspects of the election process, and dockets were congested due to time the judges spent campaigning.

Then, in November 1940, voters amended the Missouri Constitution by adopting the "Non Partisan Selection of Judges Court Plan," which was placed on the ballot by initiative petition. The adoption of the plan by initiative referendum resulted from a public backlash against the widespread abuses of the judicial system by the Pendergast political machine in Kansas City and by the political control exhibited by ward bosses in St. Louis.

The non partisan plan provides for the selection of judges based on merit rather than on political affiliation. Initially, the non partisan plan applied to judges of the Supreme Court; the court of appeals; the circuit, criminal corrections and probate courts of St. Louis city; and the circuit and probate courts of Jackson County. (The reasoning for not having circuit judges in all of Missouri’s counties chosen under the plan was that in smaller counties, it was easier for people to know who was running for judge and, therefore, easier for the electorate to decide if a candidate would make a good judge.) In 1970, voters extended the non partisan plan to judges in St. Louis County, and three years later, voters extended the non partisan plan to judges in Clay and Platte counties. These changes are reflected in the Missouri Constitution, as amended in 1976. In 2008, Green County voted to have their circuit judges chosen through the non partisan plan. The Kansas City Charter extends the non partisan selection plan to Kansas City municipal court judges as well. Under the constitution, other judicial circuits may adopt the plan upon approval by a majority of voters in the circuit.

A Supreme Court judge must be at least 30 years of age, licensed to practice law in Missouri, a United States citizen for at least 15 years, and a qualified voter of the state for nine years preceding selection. Judges may serve until the age of 70.

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Operation of the PlanUnder the Missouri non partisan court plan, a non partisan judicial commission reviews applications, interviews candidates and selects a judicial panel. For the Supreme Court and court of appeals, the appellate judicial commission is composed of the chief justice of the Supreme Court, three lawyers elected by The Missouri Bar (the organization of all lawyers licensed in this state) and three citizens selected by the governor. Each of the circuit courts in Clay, Jackson, Platte and St. Louis counties and St. Louis city has its own circuit judicial commission. These commissions are composed of the chief judge of the court of appeals district in which the circuit is located, plus two lawyers elected by the bar and two citizens selected by the governor. All of the lawyers and citizens must live within the circuit for which they serve the judicial commission.

Once the judicial commission meets, it selects a panel of the three most qualified applicants and submits that three-person panel to the governor. The governor has 60 days in which to appoint one of these three panelists to fill the vacancy. If the governor does not select one of these three panelists within the 60-day timeline, then the selection of the new judge goes back to the judicial commission.

The non partisan plan also gives the voters a chance to have a say in the retention of judges selected under the plan. Once a judge has served in office for at least one year, that judge must stand for a retention election at the next general election. The judge's name is placed on a separate judicial ballot, without political party designation, and voters decide whether to retain the judge based on his or her judicial record.

To inform voters about the performance of non partisan judges, lawyers and jurors participate in a judicial evaluation survey in which they rate those judges about whom they have personal and direct knowledge. They evaluate judges on important characteristics such as fairness, legal analysis skills, diligence and decisiveness. The results of this judicial evaluation survey then are distributed to the public via the media and the League of Women Voters.

How effective has the non partisan plan been in preserving judicial independence?Since adoption of the Missouri non partisan court plan in 1940, no appellate judge has been voted out of office, and only two circuit judges have been voted out of office. Thus, judges being voted out of office for a way he/she decided a case has been practically non-existent

Student Handout for 10:00 program

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Comparing and Contrasting Missouri’s Non Partisan Court Plan and Federal Selection of Judges

Fill in the chart below:Missouri United States

Role of the Executive

Role of the Legislature

How are politics minimized?

Role of the people

Term limits?

For discussion:1. Which plan—Missouri or the United States allows for a more independent

judiciary? Why?

2. What aspects, if any, of Missouri’s Non Partisan Court Plan would you like to see the federal government adopt? Why?

3. What aspects, if any, of the federal selection plan would you like to see Missouri adopt? Why?

4. Do you think appellate judges at either level should be elected by the people? Why or why not?

5. How do the ways both Missouri and the federal government currently select judges protect the rights of the minority?

6. How do both systems promote an impartial judiciary?

7. Do you think all of Missouri’s judges should be chosen through the non partisan plan? Why or why not?

8. Do you agree or disagree with Justice Alito’s comment about why judges are not elected? Why or why not?

Student Handout for 1:00 program

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Four Methods of Constitutional Interpretation

(From We the People and the Constitution, Level III, Lesson 25)

Textualism, literalism or strict construction. This method involves looking at the meaning of the words in the Constitution and giving each word, phrase or clause its ordinary meaning. Advocates of this method argue that interpreting the Constitution according to its plain meaning keeps the Supreme Court neutral and helps justices avoid imposing their values on the Constitution. Relying on the plain meaning of words also makes the law certain and predictable.

Original intent or original history. This method is related to the method described above, but it addresses the question how to interpret words, phrases, or clauses that are not clear. Advocates of this method seek to understand what the Founders meant when they wrote the words of the Constitution. They argue that the Founders debated and chose these words carefully with the goal of producing an enduring constitutional framework. They argue that seeking and applying the original intent of the Founders help to maintain stability and neutrality in the law.

Fundamental principles. This method looks to principles such as natural rights, republicanism and limited government to interpret words, phrases, or clauses that are not clear. Advocates of this method argue that identifying the fundamental principles of the Constitution is the best way to determine the meaning of the Constitution.

Modernism or instrumentalism. This method starts from the premise that the Constitution should be interpreted in such way to adapt to changing circumstances and contemporary society. Advocates of this method argue that unless these adaptations are made to interpreting the Constitution, there will be a need for numerous amendments and perhaps even new constitutional conventions.

Student Handout for 1:00 program

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How Do Judges Decide Cases?

Below are quotes from various judges about how they view their role of interpreting the law:

1. The Constitution is intended to endure for ages to come, and consequently, to be adapted to the various crisis of human affairs.” -Chief Justice John Marshall

2. “We are under the Constitution, but the Constitution is what the judges say it is.” - Chief Justice Charles Evans Hughes.

3. “As a member of this court I am not justified in writing my opinions into the Constitution, no matter how deeply I cherish them.” Justice Felix Frankfurter

4. “The case before us must be considered in light of our whole experience and not merely in that of what was said a hundred years ago.” -Justice Oliver Wendell Holmes

5. Do what you think is right and let the law catch up.” - Justice Thurgood Marshall.

6. “In a constitutional democracy, the moral content of the law must be given by the morality of the framer or the legislator, never by the morality of the judge.” -Judge Robert H. Bork

7. “The Constitution is not an instrument of change. For change, all you need is a legislature and a ballot box. The Constitution is to impede change. You don’t need five out of nine justices to tell you if people don’t like the idea. Once something is declared unconstitutional, it is off the stage of democracy.” The Constitution is not flexible, it produces rigidity. People come to ask for new rights to exist forever (or change our minds) without a vote. - Justice Anton Scalia in re living constitution

8. “As Justices, Scalia and I agree on lots of things, but the Supreme Court patrols the boundaries of the Constitution. It was intended to create a workable government, and our job is to apply its words to circumstances. These circumstances are at the difficult boundaries of the Constitution, or else, why would they be before this court. People disagree, and we both agree that the Constitution governs now and forever. How we get there is different. In any difficult case, we (1) look at the words of the text (2) look at the history (3) look at traditions behind it (4) check the precedents (5) the values behind it (6) consequences through the value lens. Scalia is more comfortable with 1-4 while I am happier with 5 and 6. I feel that it does a better job.” - Justice Stephen Breyer in re living constitution

9. “Let me put it this way; there are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the

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original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.” -Justice Clarence Thomas

10. “I've learned a lot during my years on the 3rd Circuit, particularly, I think, about the way in which a judge should go about the work of judging. I've learned by doing, by sitting on all of these cases. When I became a judge, I stopped being a practicing attorney. And that was a big change in role. The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can't think that way. A judge can't have any agenda, a judge can't have any preferred outcome in any particular case and a judge certainly doesn't have a client. The judge's only obligation -- and it's a solemn obligation -- is to the rule of law. And what that means is that in every single case, the judge has to do what the law requires.” -Justice Samuel Alito

11. “And, yes, there will be times when either the executive branch or the legislative branch exceeds the limits of their powers under the Constitution or transgresses one of provisions of the Bill of Rights. Then it is emphatically the obligation of the courts to step up and say what the Constitution provides, and to strike down either unconstitutional legislation or unconstitutional executive action. But the court has to appreciate that the reason they have that authority is because they are interpreting the law. They are not making policy. And to the extent they go beyond their confined limits and make policy or execute the law, they lose their legitimacy. And I think that calls into question the authority they will need when it's necessary to act in the face of unconstitutional action.”

--Chief Justice John Roberts

12. “In the past month, many Senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make the law – it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress’s intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court.” - Justice Sonia Sotomayor

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Student Handout for 1:00 program

Hazelwood School District v. Kuhlmeier

Facts of the CaseThe student newspaper at Hazelwood East High School in St. Louis County was published by the members of the Journalism II class. The students acted as editors with some oversight by the teacher. The principal of the school would read the typeset copy before it went to press. School Board policy said, "school-sponsored student publications will not restrict free expression of diverse viewpoints within the rule of responsible journalism."

For one particular issue, the students had written two articles that met with the disapproval of the principal: (1) an article on teenage pregnancy which had quotes from unnamed students about sexual activity and birth control methods. The principal thought the pregnant students could be identified by the text of the article and thought the article was inappropriate for younger students; and (2) an article about divorce that quoted, by name, a student who said her father did not spend enough time with the family before the divorce and was always out of town on business. The principal thought that the quoted student's parents should have had the opportunity to comment on the article or to consent to it before publication. Due to the principal's claim that there was not enough time left in the school year to carry out major revisions or reviews of the articles, he did not give the editors the opportunity to revise the articles. The principal ordered that the two articles be deleted from the newspaper.

What Happened in the Lower Federal CourtsThe student editors sued the school district in federal court, alleging that their First Amendment freedom of the press right had been violated. The Federal District Court held that no First Amendment violation occurred when the principal ordered that the articles be deleted. The United States Court of Appeals for the Eighth Circuit, however, reversed the district court, finding that there had been a violation.

Appellant’s (Hazelwood School District) argument: The student newspaper was not a public forum and was part of a journalism class. The articles that the students wanted to print did not meet the standards of the journalism class. Schools have a duty to screen materials for appropriateness for its students.

Respondent’s (Journalism students) argument: In the case of Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d. 731(1969), the Supreme Court held that a student's First Amendment right to free speech does not end at the school door. The articles were about issues that are important to teenagers. The privacy of everyone concerned had been protected.

Food for thought: If a school newspaper is not part of a journalism class, would thatmake a difference? If the school newspaper allowed advertisements from outside businesses, would the newspaper then be a "public forum?"

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Student Handout for 1:00 program

Analyze the Case

1. Summarizing the facts of case:a. Who are the parties?b. What are the most significant facts?c. What does the party who initiated the lawsuit want to happen in

this case?d. How did the lower courts rule?

2. Framing the issue— this is the legal issue presented in the case. These are the questions to consider:

a. What is the legal issue in this case?b. What sections of the Constitution, Bill of Rights, Civil Rights laws

or other laws apply to this case?c. Why should the law or action taken in this case be considered

constitutional? d. Why should the law or action taken in this case be considered

constitutional?

3. Making a decision and explaining the reasoning behind the decision:a. What are the arguments for both parties?b. What kind of impact will the decision have on the law? On society?c. How would you rule?

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Student Handout for 1:00 program

How the Court Held in Kuhlmeier

Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988).

The United States Supreme Court held that the principal’s

decision to disallow two articles in the school newspaper did not

violate the First Amendment. The court held that "a school need not

tolerate student speech that is inconsistent with its basic educational

mission, even though the government could not censor similar speech

outside the school." The United States Supreme Court further held that

school facilities may be deemed to be public forums only if the school

has opened its facilities for "indiscriminate use by the general public”

Since the Hazelwood School District did not open its facilities to the

public at large, its student newspaper was not considered a public

forum, and, therefore was not entitled to the same First Amendment

protection as a public newspaper.

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Student Handout for 1:00 program

How Would They Rule?(“They” being Justice Stephen Breyer and Justice Anton Scalia)

1. Three students at Springfield Public Schools decided to protest the United States military operation in Afghanistan. They wore buttons on their shirts saying, “Bring ALL the Troops Home Now!” Some of the students who have family members serving in the military complained to the principal and said they were upset by this message. The three students were asked to remove the buttons or face suspension. They refused to remove the buttons on the grounds that they were exercising their First Amendment right to free speech. Their parents sued the school for violating their children’s constitutional rights.

2. The state of Texas has a state law against burning a United States flag. Outside the 1984 Republican convention hall in Dallas, Gregory Johnson burned a flag to protest the policies of President Reagan’s administration. He was arrested and charged with a crime. Johnson argued that the Texas law violated his First Amendment rights and he sued the state of Texas.

3. The Olympic Torch was passing through Columbia, MO. High school students were allowed to attend during the school day as part of a school field trip. Just as the torch was passing two students, they unfurled a banner saying, “Bongs Hits 4 Jesus.” The boys were suspended for displaying material that promoted illegal drug use. Their parents sued the school for violating the boys’ First Amendment rights.

4. Brad Pitt and Angelina Jolie wanted to be able to protect their beautiful home, their children and their many cars so they bought several pistols. Bel Air, where they lived, prohibited private ownership of firearms, except for those used for hunting. Brad and Angelina sued the city officials, claiming that they were violating their Second Amendment right to bear arms.

5. The Vernonia, Oregon school board decided they had to do something about the prevalence of illegal drug use among the school athletes so they instituted a policy of drug testing student athletes. When James Acton refused to submit to the test, he was not allowed to played football. His parents sued the school alleging that school officials had violated their son’s Fourth Amendment right to be free from unreasonable searches and seizures.

6. Missouri passed laws banning protests at military funerals. Westboro Church routinely protests at these funerals and after being banned at a funeral, sued the state of Missouri for violating their First Amendment right to free speech.

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