Studied by 41 people
according to O’Brien what is true of Brown 2’s mandate that schools desegregate w/ “all deliberate speed“
it was a recognition of the limits of judicial power
it was an apology for not setting a precise timeline to end segregation
for any particular ruling what factors increase the power of the SC (and lend legitimacy to its rulings)
where does the court get its power from
the reasoning in it opinions is considered to be persuasive
the public generally agrees with the outcome
Counter-majoritarian
coined by Alexander Bickel
means unelected judges can undermine the will of the majority by overruling laws
it flows from the American power of Judicial review
how many SC decisions have been expressly overturned by Constitutional amendments
6
cases when SC was ignored
Worcester v. Georgia (1832)
Brown v. Board of Edu (1954)
Ex Parte Merryman
why do pp follow authority
fear: punishment
hope: for a reward
agree: authority is just
time between brown 1 and brown 2 and why
a year
the justices knew there would be massive opposition, resistance
brown 2 was an apology for not setting precise guide and a recognition of limitation of judicial power (does not hold the sword), the court can not enforce it’s own decisions
brown 1
struck down the doctrine of “separate but equal“
brown 2
call for “all deliberate speed“
ending racial segregation in public education
de jure segregation
segregation enforced by laws prohibiting the integration of public schools
de facto segregation
segregation caused by socioeconomic conditions as housing patterns in the South and West
not explicitly written in law but enforced by social norms
Matthew Hall, when are SC hearings least likely to be respected
when the ruling is unpopular on a lateral issue requiring other institutions implementation
greater impacts when its decision bear on vertical issues that require lower court compliance and command wide spread public support
reactions to brown
President Eisenhower: obeyed
100 Southern politicians: “Southern Manifesto“
southern manifesto
what is it/ what case/ what did it do
Brown v. Board
Southern resistance to Brown, signed by southern representatives/ senators
they called for the reversal of Brown saying it was unconstitutional
This was a challenge of the Court’s authority
passing of laws that said if the schools integrated they would lose their state funding
Arkansas - Little Rock
passed law saying segregation was legal
Eisenhower sends federal troops to aid in integration
Cooper v. Aaron 1958
Cooper v. Aaron 1958
What is found/ reaction
found the delayed integration plan of little rock was not acceptable
Gov Faubus of Arkansas leased all public schools to a private corporation
closed all public schools for a year
Little Rock was not integrated fully for a decade
1964 Civil Rights Act
passed by congress
allowed for federal fund to be withheld if an institution practices racial discrimination
segregation official policy didn’t end until the 1970s
if the SC less illegitimate bc of Brown v. Board
seemed less legitimate
Worcester v. Georgia
struck down Georgia Cherokee law bc it conflicted with federal treaty
“denied state court jurisdiction over crimes committed on Indian lands, let enforcement problems to the lower courts and legislatures”
even though they lost, Georgia and the Pres Andrew Jackson does not mandate the SC decision
Worcester v. Georgia resistance leads to
Trail of Tears
1838 US army forced 12000 Cherokee to migrate
4000 died
Ex Parte Merryman
(Lincoln v. Chief Justice Taney)
timeline
Congress is out of session
1861- Lincoln suspended writ of habeas corpus
Union General arrested John Merryman, confined him in Fort McHenry
Taney is riding circuit and is the judge who received Merryman’s plea to
Taney ordered Merryman be release, but he was not
Taney writes to Lincoln, saying wtf thats not in your powers
writ of habeas corpus
“you have the body“
issued to inquire whether a person is lawfully imprisoned or detained
demands that a persons holding a prisoner justify they detention or release them
suspended writ of habeas corpus allowed for
Union army to arrest civilians w/out a warrant, probable cause, speed jury trail, or any process at all
who can suspend the habeas corpus
how did Lincoln justify his actions
Suspension Clause Art 1 Sec 9: writ of habeas corpus can be suspended only in case of rebellion, invasion, or matters of public safety
Article 1 is Legislative Powers, not executive
However Congress was out of session so Lincoln used the power to stop the nation from falling into the rebellion’s hands, he is Commander in Chief and never is out of session
Taney argued
that it was outside of his powers, his job was to make the laws are “faithfully executed“ and can not change laws even times of war
Congress’ reaction when back in session
retroactively approved Lincoln’s decision to suspend habeas corpus
Merryman remained in jail
How was rule of law respected in the Ex Parte Merryman case
dedication to principle and the people of the nation
how can Congress overturn SC rulings
passing laws
amending the constitution
passing laws to overturn SC interpretation of statue
not rare, 5 laws a year
Can Congress pass statue to override the SC interpretation of the Constitution?
NO
Is the SC more likely to follow stare decisis in statutory cases or constitutional cases
Statue, they have more authority in constitutional cases to rule
What does congress pass more of Statues or Amendments
statues bc they are faster than amendments
Amending the Constitution
Article 4
2/3 of both houses
ratified by 3/4 of states
Amendments that have overturned SC decisions
11th: lawsuits against states (chisolm v. Georgia)
13th: abolished slavery (dred scott v. sandford)
14: race and citizenship (dred scott v. sandford)
Dred Scott v. Sandford 1857
politicians want the SC to decided the issue of slavery
think back to De Tocqueville judicial review, any political question that is not resolved will end up in the court one day
Dred
claimed he was free based on Missouri “once free, always free“
dred scott failings
“Activist“ opinion that wanted to decided issues that were not necessary to solving the case
“Activist“ opinion that invented constitutional doctrine to invalidate the Missouri Compromise
ethical issues between Buchanan and justices
violated SC procedure bc written opinion differed from one read in conference
how was Marbury and Dred different
Marbury regarded original jurisdiction an issue the majority didn’t understand or care about
Dred was ruling on if slavery and the banning of slavery in territories by Congress was legal
a large and understood issue
tentative agreement that justices reached in conference about Dred Scott after oral argument
there was no need to decide if the Missouri Compromise was constitutional, only needed to decide if Missouri law made Dred a slave or free
however the justices later changed their opinion to vote on the constitutionality of the compromise and slavery
ethical breach Justice Catron engaged in w/ pres buchanan
catron wrote pres buchanan a letter urging him to write letter to Justice Grier to ask him to join the majority
reaction to dred
anger in the north, self inflicted wound of the court
Lincoln attacks in his inaugural address
Note 
Flashcard (20)