Review Session #6 Judicial Branch The Courts Civil Liberties Civil Rights.

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

Brown v. Board of Education (1954)

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)