12 - CP Govt - Unit 2 Test - Other Stuff

What does the Constitution say about the courts?

• Article I: Legislative

• Article II: Executive

• Article III: Judicial

• not a lot of detail (maybe bc least dangerous?)

What are 4 things we can find in the Constitution?

1. What do the courts do?

2. Where do the judges come from?

3. How long do judges serve?

4. How many justices are there on the Supreme Court?

1. What do the courts do?

Article III: Judicial branch has “judicial power“ → Judicial review??

vested in SC and lower courts that Congress may create

2. Where do judges come from?

Article II: Appointed by president

Article I: Confirmed by Congress SM vote

No statement about qualifications judges

3. How long do judges serve?

“Good behavior”
Article I: Congress has power to impeach and remove federal officials for “high crimes and misdemeanors“

Three ways impeached:
1. impeached and removed (rare)

2. die (rare)

3. retire (common)

4. How many justices are there on the Supreme Court?

Constitution only said supreme court created, so congress gets to decide how many
After Civil War, decided on 9
new Deal, FDR encouraged expanding to 15 judges so he could put more judges on his side (“court packing“)

9 for almost 150 years

What does our “dual system” of courts look like? why is it dual?

why: federalism
national: powers of government assigned by Constitution to the national government/federal laws
state: powers that are reserved by the 10th amendment to the states/state laws

also draw it

what is the bottom level of the dual system of courts?

district courts/trial courts: where defendant receives trial by jury

what is the appeal court level?

Appeals Court level: court of review- only for substantive/procedural due process offenses, no juries, just panels of judges (can’t decide if guilty or not) to determine whether laws are constitutional (substantive due process) or the trial ws conducted fairly (procedural due process)

• can overturn conviction if substantial or procedural due process unfair

• Or order a District Court to conduct a new trial

• then goes to state supreme court

What are the 6 steps that a case follows through the Supreme Court?

1. Appeal

2. “Rule of Four“ (tradition/custom, not in Constitution)

3. Research

4. Oral argument

5. Conference

6. Opinion writing

how many cases are dealt with every year by the SC?

~1%

What is a writ of certiorari, and what step is it part of?

document issued when 4+ judges agree
1. Certifies court is going to hear the case

2. Court order- all documentation on case (from years in lower court system)

why do supreme court judges do research?

1. learn all details about the cse

2. look for Precedents

3. prepare questions

“State decisis”: let stand that which has been decided

how long does each side get during a Supreme Court oral argument?

30 min

What happens in the 5th step of the case following through the Supreme Court?

5. Conference
   private discussion among 9 judges
   preliminary vote

What happens in the last step of the case following through the Supreme Court?

6. Opinion writing

• first draft circulates through the court

1. Majority opinion: document

2. Dissenting opinion: reasons for disagreeing with majority

• can be useful for future appeals, wisdom for future

1. concurring opinion: agrees with majority but different perspective

What is the first point about judicial review?

1. Judicial Review is NOT specifically mentioned in the Constitution

• Article III: judicial branch has “judicial power“ is it judicial review? not necessarily….

• federalist #78 is where Alexander Hamilton argued that judges should have the power of judicial review to call actions from other branches unconstitutional → void

  • why: anti-federalists used vagueness of judiciary branch as one of their arguments

• judicial review case: Barron v. Baltimore (1833)

Barron v. Baltimore (1833)

First case where power was exercised when Chief Justice John Marshall called Barron’s appeal to the Supreme Court unconstitutional because that’s not how federalism works

What what is the second point about judicial review?

Congres checkin the Supreme Court?

2. Supreme Court decisions can be overridden by Constitutional Amendments by Constitutional Amendments

passing new laws/proposing constitutional amendments to override decision

What what is the second point about judicial review?

What law did the Court strike down in the Dred Scott case and why?

2. Supreme Court decisions can be overridden by Constitutional Amendments by Constitutional Amendments

Missouri Compromise, citing 5th Amendment as evidence to say Congress has no right to dictate over people’s property

What what is the second point about judicial review?

Explain how Congress essentially undid the Dred Scott decision?

2. Supreme Court decisions can be overridden by Constitutional Amendments

14th Amendment, which declared that all ex-slaves were considered citizens and not property- this made it so that the 5th Amendment did not apply to them

What was the 3rd point about judicial review?

Who does the Suprmee COurt have to rely on to enforce the decisions they make and why?

3. The Supreme Court has no enforcement power

Executive branch and Congress (can pass laws enforcing decisions) because they don’t have the power to enforce their decisions by thenmselves

What was the 3rd point about judicial review?

What did the Court decide in the Brown case? What was the Southern Manifesto and what did it say?

3. The Supreme Court has no enforcement power

Court overturned “separate-but-equal“ ruling which was established in Plessy v. Ferguson (1896) reasoning that racial segregation was unconstitutional, since it violates the “Equal Protection“ Clause of the 14th Amendment

What was the 3rd point about judicial review?
Which two presidents sent military troops into he south to help enforce the Brown decision?

3. The Supreme Court has no enforcement power

President Dwight D. Eisenhower in 1957 to Little Rock, Arkansas and President John. F. Kennedy in 1962 to the University of Mississippi

What was the 4th point about judicial review?

Explain how we find out what the words of the Constitution actually mean?

4. The Constitution means whatever the Supreme Court says it means

Supreme Court cases as interpretations

What was the 4th point about judicial review?

Who was Gregory Lee Johnson and what did he do to get arrested? Explain the argument his lawyer used to get his conviction overturned?

4. The Constution means whatever the Supreme Court says it means.

protest against President Reagan’s policies, arrested because of burning the American flag, Lawyer argued that burning of flag = “symbolic speech“

What was the 4th point of judicial review?

Who was president when the Johnson case was decided by the Suprme Court, and how did he feel about this decision?

4. The Constitution means whatever the Supreme Court says it means.

George H.W. Bush was president and strongly opposed the ruling (in favor of Johnson)

what is the 5th point about judicial review?

what are “Rights in Conflict“ as a legal concept?

5. There are no absolute rights.

two parties’ rights will quarrel with each other

what is the 5th point about judicial review?

Charles Schenck and why was he arrested?

5. There are no absolute rights

Schenck = member of the Socialist party during WWI, hsi group protested against he drafting of men by giving out pamphlets to soldiers. This violated the Espionage Act of 1917

what is the 5th point of judicial review?

Explain Justice Oliver Wendell Holmes Jr.’s ruling in the Schenck case?

5. There are no absolute rights

Oliver Wendell Holmes Jr. argued in favor of Schenck, ruling established “clear and present“ danger test and that Schenck’s actions vioolated that test

what is the 6th point of judicial review?

why do they say SC rulings are a snapshot of time?

6. The Supreme Court may in later cases reverse its earlier decisions

One generation’s opinions may differ greatly from another

what is the 6th point of judicial review?

Explain what the Court ruled in the Roe case 1973.

6. The Supreme Court may in later cases reverse its earlier decisions

ruled that the Constitution’s 4th Amendment prohibited the government from removing the woman’s right to abortion

what is the 6th point of judicial review?

Explain what the Court ruled in the Dobbs case in 2022?

States had the power to refuse abortions after a fetus is viable, but the laws abiding by this had to protect the mother’s life

what is the 7th point of judicial review?

Why might some people assume SC justices are immune from public opinion?

7. The Supreme Court is not immune from public opinon

all justices are indepdents of political party affliction

what is the 7th point of judicial review?

why was Fred Korematsu imprisoned? Why did his lawyer feel it was unconstitutional?

Korematsu was imprisoned because he refused to obey Executive Order 9066, which incarcerated people who were descendants of Japanese people in the U.S. Korematsu’s lawyer felt this order violated the 5th Amendment, which grants equality before the law?

The 14th Amendment - What was John Marshall’s decision in Barron v. Baltimore (1833)?

Can the Bill of Rights be used to control state actions and overrule the decisions of state courts?
Chief Justice John Marshall said no, that isn’t how federalism works. You have to figure out state issues within the state.

Barron decision limited state cases to state courts

The 14th Amendment - what was the original puprpose of the 14th Amendment? What does it say?

Recognize black people/ex-slaves as citizens and ensure equal application under law?
“All persons born in the US are citizens of the US and state when born“

“No state shall deny any person equal protection of the laws“

The 14th Amendment - how did this amendment drastically increase the power of the Supreme Court?

The no state part acted like a bridge between the dual court system so that state cases could be brought up to national courts

Federalist #78 - 2 main Anti-Federalist arguments?

1. No bill of rights

2. central government too powerful

3. judicail branch too vague

Federalist #78 - the two things argued for in Federalist #78 and why each is needed?

1. Judicial review: to check other branches

2. permanent terms: insulates judges from making biased decisions