Constitutional Law Civil Liberties Test #1

What does separation of powers mean?

The legislative branch creates laws (Congress), the executive branch enforces laws (the president), and judicial (Supreme Court) interprets

Who was Montesquieu and what was important about him?

A French philosopher who argued for puissance de juger (the power of judging) in the Spirit of laws. The legislature writes the rules, the executive carries them out, and the judiciary determines how the law applies when there is a dispute. He was for the separation of it in these three ways. He said that judges must be no more than the mouth that pronounces the law

What was Federalist No. 78?

One of Alexander Hamilton’s federalist papers that explained the purpose of the federal judiciary. Judicial independence versus accountability, the judiciary is the least dangerous branch, judges should follow rules and precedents not personal preference, and judges interpret the law and constitution.

Who was de tocqueville?

wrote democracy In America (1835) he came to the US to study the American Penal system but spends most of his time studying the judiciary in and of itself. he explores the power given to them and says that they alone have the right to interpret the contention

What is article 3 of the constitution?

Article 3 establishes the federal judiciary. it provides for one Supreme Court and allows congress to establish inferior federal courts. It also provides for judicial tenure during good behavior and protects judicial compensation from being diminished during a judge’s continuance in office. It is the starting point but congress has substantial authority over the structure and jurisdiction of the lower fed court. It is not very clear about the qualifications of a justice

What are the three tiers of the federal court system?

US District Courts (94 federal trial courts that hear civil and criminal cases and determine facts at trial), the US Courts of Appeals (13 appellate courts that review decisions from lower courts and establish binding precent within their circuits, and the U.S. Supreme Court which is the highest court in the land and only one of them.

What are district courts?

The lowest level of the federal system that hears civil and criminal cases. They are generally the first federal courts to hear a case. Arkansas has 2 federal districts: Eastern and Western.

What is the courts of appeals?

They are intermediate appellate courts. They review decisions from district courts and certain admin agencies. They sit in panels of three to five judges or the full court will hear the case.

What circuit is Arkansas in?

The Eighth Circuit, and the court is in St. Louis Missouri.

What is the Supreme Court?

the highest federal court and the court of last resort. There are nine justices right now one chief justice and eight associate justices. There’s not a limit to how many justices there can be

What does jurisdiction mean?

The authority of a court to hear and decide legal disputes and enforce its rulings. Does the court have the power to hear this case?

What are the three types of jurisdiction

Personal jurisdiction, subject matter jurisdiction, and jurisdiction to render the judgement.

Explain personal jurisdiction

Personal jurisdiction is whether a court can hear a case involving a particular defendant. The court must establish sufficient minimum contact with the forum where it sits. In personam means jurisdiction over a person and in rem means jurisdiction concerning a thing, such as property, in a particular case.

Explain subject matter jurisdiction

The power to adjudicate a particular type of legal matter. for example bankruptcy courts as an example of a court with jurisdiction over bankruptcy cases

What does jurisdiction to render the judgement mean?

Does the Court have the authority to provide the remedy being requested of it?

What is the difference between original and appellate jurisdiction?

original jurisdiction is the authority to hear a case in the first instance, such as a trial court hearing a case for the first time and appellate jurisdiction is the authority of a higher court to review a lower court’s decision

What is discretionary versus mandatory jurisdiction?

Discretionary jurisdiction means that the court has the authority to decide whether to hear a certain case and mandatory jurisdiction is that the court must hear a case when the legal requirements are met.

How do cases typically reach the supreme court?

Petition for certiorari (a party asks the Supreme Court to review a lower court’s decision, cert pool and discuss list (law clerks review petitions and selected cases are placed on the discuss lists for the justices, rule of four (at least four justices must vote to hear the case), brief and oral arguments (attorneys submit written arguments, including possible amicus briefs, and present oral arguments, conference and opinion writing (justices deliberate, vote, and prepare opinions), and then the decision and final opinions are announced and published

What is a writ of cerioari?

a petition asking for a higher court to review a lower court’s decision on its merits

what is an amicus curiae?

a friend of the court. an outside party submits a brief to support a position or provide information relevant to the case

what is a circuit split?

a disagreement between federal appellate courts about the law. Lower court disparity can influence the Supreme Court to grant certiorari

What is a per curiam opinion?

an opinion issued by the Court without identifying a single author

What is a plurality opinion?

An opinion that does not receive a majority of the justices’ signature and has no precedent value

What is the distinction between jurisdiction and justifiability?

Jurisdiction is whether or not the court has the legal authority to hear this kind of case and Justiciability is the ability of the court to determine whether a case is fit for resolution

What are the major barriers to justiciability?

Advisory opinions, mootness, ripeness, collusion, political questions, and standing

What did ex parte mccardle (1869) illustrate?

The Court upheld congress’s withdrawal of jurisdiction under the exceptions clause of article III section 2 and this illustrates congress’s power over the supreme court’s apellate jurisdiction

What was established in United States v Klein

Congress can not remove jurisdiction as a means to force a particular outcome of a case.

What was the holding of Flast v Cohen 1968

Judges are not required to issue advisory opinions and taxpayers have standing to sue the government when it has violated its constitutional limits on taxing and spending

What was the holding of Ljan v defenders of wildlife (1992)

The question was whether or not he plaintiffs have the ability to challenge government actions involving endangered species. The court found no standing because the plaintiffs lacked a direct, definable, tangible, and non speculative injury

What was established in Baker v Carr

courts can review drawing lines around state electoral districts and it does not count as a political question. 

What was established in Ashwander v TVA?

presented rules of judicial self restraint including avoiding constitutional questions when a case can be resolved on another basis

What does standing mean?

The party bringing suit must have suffered, or be immediately about to suffer, a direct and significant injury that is traceable to the challenged action and can be resolved by a court.

What are the three elements of standing?

Injury in fact (the plaintiff has suffered a real injury), causation (the injury is traceable to the challenged action, and redressability (a favorable judicial decision can remedy the injury)

What is mootness?

a case becomes moot when changes in circumstances mean the court can no longer provide the requested relief. In DeFunis v Odegaard, a law school applicant's affirmative-action challenge was dismissed as moot because he was already in his third year of law school

What is ripeness?

whether a dispute is sufficiently immediate and developed for the court to decide. a threatened injury must be real, immediate, and highly likely to occur. Uses poe v Ullman as an example involving an unenforced law banning contraceptives.

What is the political question doctrine?

Courts can not answer questions that are inherently political. This was decided in Baker v Carr. For example, would deciding it show a lack of respect for another branch?

What is originalism?

what did the framers mean or intend?

What is original meaning?

What did the constitutional text mean when enacted?

What is textualism?

What does the constitution’s text say?

What is structural analysis?

How do different constitutional provisions fit together?

What is pragmatism?

What are the consequences of adopting a particular interpretation?

What is the difference between judicial activism and judicial restraint?

Judicial activism is rulings influenced by judges’ policy views of other characteristics and often associated with a living constitution. Judicial restraint is the reluctance to reinterpret the law with respect for precedent. It highlights approaches to originalism, textualism, and historical tradition.

What was important about the ashwander case?

The doctrine of constitutional avoidance means courts should avoid deciding a constitutional question when a case can be resolved without reaching it.

What is a case that was used to determine standing?

Hollingsworth v. Perry

How many cases does the court receive and how many do they hear?

7,000 cases but hears about 80-150

What are the studies surrounding gender and interruptions of oral arguments?

More women are interrupted than men. This was seen in Whole Woman’s health v hellerstedt.

what is United Public Workers v. Mitchell an example of

a challenge to possible future conduct.

what is the act of state doctorine?

prevents courts from judging the official acts of another country.

What did ex parole McCardle establish?

Congress can withdraw Supreme Court appellate jurisdiction

What was established in United States v Klein?

Congress cannot manipulate jurisdiction to dictate a particular result

what was established in flast v Cohen?

Limited taxpayer standing under the two-part nexus test

Frothingham v. Mellon

Taxpayer status alone is insufficient for standing

United States v Richardson

Injury was too remote for government spending

What was established in Lujan v Defenders of Wildlife

No standing without direct, concrete, nonspeculative injury

Hollingsworth v. Perry

Generalized/third-party standing problem

DeFunis v. Odegaard

Mootness

poe v. Ullman

ripeness

United Public Workers v. Mitchell

Challenge based on possible future conduct was not ripe

INS v. Chadha

Collusion/lack of genuinely adverse parties

Carter v. Carter Coal

Collusion/lack of genuine adversaries

Baker v. Carr

Legislative apportionment was justiciable

Ashwander v. TVA

Judicial self-restraint and constitutional avoidance

what was the judiciary act of 1789?

It set the number of justices on the Supreme Court as a chief justice and 5 associate justices. It also set 13 judicial districts within the 11 states that ratified. it created the office of the attorney general as well as the United States attorney and United States Marshall

What is a writ of mandamus?

A  type of judicial remedy that consists of an order from the body of the court to a government official or entity to perform a task or duty that they are legally required to do or to refrain from doing.

what did riding circuit mean

historical judicial practice where judges traveled along a regular, predetermined geographic route (called a "circuit") to hold court and hear cases in different towns or remote districts. but then it ended because justices got sick and some died

What is the appointment process for a justice?

1.The President and his staff vet nominees. This helps narrow the field until finally a nominee is chosen.

2.The name is sent to the Senate Judiciary Committee. They perform their own background checks and vetting procedures.

3.A public hearing is held with the nominee to address any problems/questions/testimony about his/her background.

4.The Judiciary Committee votes on whether they will recommend the nominee to the full Senate.

5.If he/she gets the recommendation, the full Senate debates the nomination.

6.When debate ends, a vote on the nominee is called, and a simple majority is required for confirmation.

What is senatorial courtesy?

the custom of the president or his proxies  to ask for nominees from the Senator’s state

what is a blue slip?

an opinion written by the “home state” Senators about the quality of a nominee that is sent to the Senate Judiciary Committee

what does getting borked mean?

to defame or vilify a person systematically to prevent them from being appointed to public office

why does it matter what scotus says?

constitutional interpretation, separation of powers, difficulty of the amendment process system, institutional legitimacy

What are some of the factors that influence cert?

circuit split, lower court opinions, amicus briefs, government involvement, conflict between federal and state entities, constitutional importance

What is the difference between a regular concurrence, a special concurrence, an a per curiam opinion?

A regular concurrence agrees with the result but emphasizes a different point. A special concurrence agrees with the result but uses different reasoning. A per curiam opinion has no named author and is usually brief.

What are the four formal barriers to judicial action that article 3 sets

courts must have the authority to hear the case (jurisdiction), must be a case or controversy, case must be appropriate for judicial resolution (justiciable) and the appropriate party must bring the case (standing)

what was established in frothingham v Mellon

status as a taxpayer is not by itself a sufficient basis for standing against the government.  

what was established in US v Richardson?

the conduct of the federal government is too far removed from individual taxpayer returns for any injury to the taxpayer to be traced to the use of tax revenues 

What is the free exercise clause? where is it found?

The free exercise clause of the first amendment states that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...

Does the free exercise clause apply to the states?

Yes, through the due process clause of the 14th amendment

What does incorporation mean?

When a case involves a state or local government, the question is whether the First Amendment right applies to that government through the Due Process Clause of the Fourteenth Amendment.

What does valid secular policy mean?

Cantwell v Connecticut established that government regulations must have a legitimate secular purpose rather than restricting conduct because of religious beliefs

what does compelling state interest mean?

associated with sherbert v Verner and Wisconsin v yoder. A substantial burden on religious exercise must be justified by a compelling government interest and use the least restrictive means.

What does incidental impact/ neutral laws mean?

Associated with employment division v smith. A neutral, generally applicable law may apply to religious conduct even when it incidentally burdens religious exercise.

Reynolds v. United States 1879

Belief does not automatically excuse conduct from criminal law

1940 cantwell v connecticut

Free Exercise incorporated against states.

Braunfeld v. Brown

Important, neutral secular end; least restrictive means in the lecture's formulation.

1963 sherbert v verner

Compelling state interest standard.

Wisconsin v yoder 1972

Religious education exemption.

employment division v smith

Neutral, generally applicable laws generally need not provide religious exemptions.

Church of Lukumi Babalu Aye v. Hialeah 1993

Laws targeting religion are unconstitutional

1997 city of boerne v Flores

RFRA cannot constitutionally impose its requirements on state and local governments under Congress's Fourteenth Amendment enforcement power.

Burwell v. Hobby Lobby 2014

RFRA protects certain closely held for-profit corporations.

masterpiece cakeshop 2018

Government hostility toward religious beliefs violates the Free Exercise Clause.

Fulton v Philadelphia

Religious exemption issue involving foster-care certification.

Carson v makin

Religious schools and public benefits.

What happened in Reynolds v United States 1879?

This was the case where a Mormon was prosecuted for polygamy. he said that this was a first amendment violation. This case established that the government can restrict religiously motivated conduct that violates criminal law. highlights the belief action distinction.

what happened in Davis v Beason?

about polygamy. it was illegal and could not be done even out of religious desires. it was immoral and contrary to public policy

what happened in US v Ballard 1944

Guy Ballard and others claimed to possess religious powers and beliefs that many people considered incredible. They were prosecuted for mail fraud. determined that court can not decide the truth or falsity of religious doctrines.

what was the Edmunds tucker act 1887

the act targeted practices of the Mormons like polygamy. The LDS Church responded with the 1890 Manifesto, which ended the church's official support for plural marriage and helped Utah transition from a territory to statehood.

what happened in the Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States (1890)

The LDS Church challenged the federal government's seizure of church property under the Edmunds–Tucker Act. The Court upheld the Act and the disincorporation of the church.

What happened in Cantwell v Connecticut?

The case where a Jehovah’s witness and sons were going door to door and soliciting people. It also established the early valid secular policy approach: regulations must have a valid secular purpose and cannot target religious conduct simply because it is religious. Incorporated the free exercise clause against the states

what happened