judicial process and courts exam 2?

Dynamic Court View (Rosenberg)

litigation is primary object of success when other branches of gov’t fail, seen as powerful agents of change

Constrained Court View
(Rosenberg)

other actors have to carry out or enforce laws (often resistance to implementation)

Brown v. Board of Education (1954)

landmark SCOTUS case, reversing Plessy v Ferguson’s “separate but equal” doctrine

Cooper v. Aaron (1958)

Arkansas made pleas to desegregate Little Rock, but the state of Arkansas amended constitution to oppose desegregation, told students it was NOT mandatory to attend desegregation, courts ruled that it was not acceptable to deprive black students of desegregated education to “keep the peace”

Currents of History (extra-judicial effects)

press coverage following Brown v BOE, elite opinions (legislative record from 1957, 1960, 1964)

Fly-Paper Court

the concept that courts act as fly-paper for social movements, attracting activists and their money to the courts to seeks litigation which can slow movement momentum and diminish time and funds, and only make symbolic victories

Three constraints on the Court (rosenberg)

1. limited nature of rights (overcoming legal precedent),

2. lack of independence (nomination/confirmation process for SCOTUS, SCOTUS is political institution that is constrained by politics of US),

3. Judicial branch’s inability to develop/implement policy

Four dynamic conditions (for courts to be good dynamic courts)

market forces (businesses can be catalysts for changes),

willing actors (activist groups, churches, local politicians can help catalyze action),

positive incentives (tax breaks, funding),

negative incentives (taxing, fines)

Civil Rights Act of 1964

Voting Rights Act of 1965

13th Amendment

passed in 1865, outlawed slavery except for in cases of crime and punishment

14th amendment

passed in 1868, first semblance of equality/equal protection under the law

15th amendment

passed in 1870, gave black men the right to vote

Plessy v Ferguson (1896)

dred scott case

US v association of citizens councils of louisiana (sokol)

US v Louisiana (sokol)

Alexander v Holmes County (sokol)

1969, the strongest push by courts to desegregate, for Sokol this creates an idea that courts cannot take credit alone

letter from birmingham jail

direct action (MLK)

nonviolent action that is a necessary step in negotiation

the problem of the white moderate (MLK)

MLK criticizes white moderates for prioritizing comfort over justice in regard to jim crow/desegregation

artificial reason (brigham)

special language of constitutional interpretation that puts judges and lawyers on educational pedestal

oracle myth (brigham)

cult of the robe (Brigham)

18th-19th century phenomena, society viewed judges as high priests that have special interpretive power

cult of the judge (brigham)

political shift in justice appointments (began in 19th century)+ iconography

cult of the court (brigham)

american legal priesthood

legal learning (continuous and impartial) + independence (standing apart from other branches)

constitution as higher law

treated as higher document that only judges can properly interpret

ideologies of authority

shared understanding of how things are conducted give authority to individuals or institutions

ex: constitution being “by the people” but only able to be interpreted by the “chosen”

mechanical jurisprudence

law isn’t made by people, it is discovered (outcome doesn’t matter, rules do)

political jurisprudence

law is human made and judges behavior (very political)

history of legal learning

legal learning used to be done through apprenticeships, but then the professionalism of the legal system occurred

judicial restraint v judicial activism

restraint: constraining one’s interest/self

activism: brings one’s interests/self into judicial decision

paradox of liberal law

How does Rosenberg define the dynamic court view? How does he define constrained court view? How do they differ? Which is Rosenberg more persuaded by?

rosenberg is more persuaded by constrained court view (believes court isn’t good at making social change)

How does Rosenberg define “significant social reform?” What are the 3 constraints the court faces when attempting to produce significant social reform?

When Rosenberg suggests that litigation is like “fly-paper” what does he mean? What are some negatives Rosenberg sees with litigating on behalf of social causes?

What does Rosenberg mean by "extra-judicial effects" or the "currents of history?" Name and explain two of the four "currents of history" Rosenberg credits with fostering significant social reform.

Rosenberg names 3 constraints on the court and four dynamic conditions necessary for significant social reform. Name all three constraints and provide an example for each. Then name two of the four dynamic conditions and provide an example of each. Why do you think Rosenberg believes all overcoming all three constraints on the Court is required for significant
social reform?

Rosenberg examines how the Court often relies upon the legislative and/or the executive branches for enforcement. Why does he believe that the executive and/or legislative branches are more vital for social change than the Court? Please use Brown v. Board of Education (1954) as evidence in your answer.

Rosenberg argues which two congressional acts were more effective than Brown v. Board of Education (1954) in creating social change? Name two tools that were available to the political branches (legislative and executive) that the Supreme Court lacks that fostered significant social reform.

What does Martin Luther King mean by the “Problem of the White Moderate?”

Explain how Jason Sokol complicates Rosenberg’s claim that Supreme Court cases have little impact on social change. Provide and explain three examples (at least one court case) that Sokol uses to show the impact of the law and courts. Are you persuaded by his argument

Please describe the history of legal learning. What are the two primary modes discussed by Brigham? What are two characteristics of each mode of learning? Why did legal learning shift from the 19th to 20th centuries?

How does Brigham differentiate between “The Cult of the Robe” and the “Cult of the Judge”? Please define each term. Please describe two characteristics of each term. Why did the shift from the “Cult of the Robe” to the “Cult of the Court” occur?

Please define political judging and mechanical judging. Name two differences between each mode of judging. How do the differences highlight the ways in which the Supreme Court is viewed as an institution from the past to the 21st century?

In The Cult of the Court, John Brigham writes, “Meaningful action makes institutions” (21). What does he mean by this? How does Brigham define institutions? What role do practices play in institutions?