POS lesson 12

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

1. not rare, 5 laws a year

2. Can Congress pass statue to override the SC interpretation of the Constitution?

   1. NO

3. Is the SC more likely to follow stare decisis in statutory cases or constitutional cases

   1. 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

1. “Activist“ opinion that wanted to decided issues that were not necessary to solving the case

2. “Activist“ opinion that invented constitutional doctrine to invalidate the Missouri Compromise

3. ethical issues between Buchanan and justices

4. 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