Unit 5- The Judiciary, Civil Liberties and Civil Rights

What are the Constitutional foundations of judicial power?

-Interpret the law, judicial review, original v. appellate jurisdiction
-Documents: Article III, Federalist 78, Marbury v. Madison (1803)

Interpret the Law

The Judicial Branch decides argument about the meaning of laws, how they are applied and whether they break the rules of the U.S. Conititution

Judicial Review

The power of courts to decide whether a governmental institution has acted within its constitutional powers and, if not, to declare its action null and void.

Original Jurisdiction

The authority of a given court to be the first court to hear a case.

Appellate Jurisdiction

The authority of a given court to review cases that have already been tried in lower courts and are appealed to it by the losing party; such a court is called an appeals court or appellate court.

Article III

Establishes the Judicial Branch

Federalist 78

written by Alexander Hamilton; talks about the federal judiciary; judiciary must depend on other two branches to uphold its decisions; judiciary must be independent and thus must have lifetime terms

Marbury v. Madison (1803)

This case establishes the Supreme Court's power of Judicial Review

Why is judicial review an effective check on Congress and the president?

-Appointment, confirmation, lifetime tenure
-Petitioner, respondent, majority/concurring/dissenting opinions
-Document: Article III

Appointment

President appoints SCOTUS judges

Confirmation

Senate approval of a presidential SCOTUS justice nomination
-simple majority needed

Lifetime tenure

SCOTUS justices hold positions for life (as long as they perform with good behavior)
-This reduces the chance of SCOTUS justices being influenced by other government institutions and citizens since they aren't elected

Petitioner

In equity practice, a party that initiates a lawsuit.
-Lost last court ruling, appealing the result
-also called appellants
-e.g. Buckley in Buckley v. Valeo

Respondent

In equity practice, the party who answers a bill or other proceeding.
-Won last ruling, but must "respond" to the petition's appeal
-also called appellees
-e.g. Valeo in Buckley v. Valeo

Majority Opinion

A court opinion that results when a majority of the justices are in agreement on the legal basis of the decision.

Plurality Opinion

A court opinion that results when a majority of justices agree on a decision in a case but do not agree on the legal basis for the decision. In this instance, the legal position held by most of the justices on the winning side is called a plurality opinion.

Concurring Opinion

A separate opinion written by one or more Supreme Court justices who vote with the majority in the decision on a case but who disagree with its reasoning.

Dissenting Opinion

The opinion of a justice in a Supreme Court case that explains his or her reasons for disagreeing with the majority's decision

What factors influence judicial decision making?

-Judicial activism, judicial restraint, ideological changes on the Supreme Court, stare decisis, precedents

Judicial Activism

The doctrine that the courts should develop new legal principles when judges see a compelling need, even if this action places them in conflict with precedent or the policy decisions of elected officials.
-protects minority from majority

Judicial Restraint

The doctrine that the judiciary should closely follow the wording of the law, be highly respectful of precedent, and defer to the judgment of legislatures. The doctrine claims that the job of judges is to work within the confines of laws set down by tradition and lawmaking majorities.
-limited to Constitution

Ideological changes on the Supreme Court

SCOTUS justices have conservative or liberal leanings
-e.g. Warren Court=liberal (1953-1969)
-e.g. Burger court=conservative (1969-1986)

Stare Decisis

Let the decision stand; decisions are based on precedents from previous cases

Precedents

prior cases whose principles are used by judges as the bases for their decisions in present cases

How may the elected branches limit the power of the Supreme Court?

-Legislation, Constitutional amendments, judicial appointments/confirmation, refusal to enforce, legislation regarding jurisdiction, impeachment
-Documents: Articles I, II

Legislation/Legislation regarding jurisdiction

Congress can make modified laws of previous ones that were declared unconstitutional and voided by SCOTUS
-Note: Congress can also decide how many SCOTUS justices there are

Constitutional amendments

Congress can create new Constitutional amendments; this is important since SCOTUS pretty much only follows the Constitution (along with precedents)

Judicial Appointments/Confirmation

Congress and President decide who gets to go on SCOTUS
-Prez nominates
-Senate approves nominations

refusal to enforce a law or Supreme Court ruling

not enforcing a law or ruling because the president does not believe that it was constitutional
-The Supreme Court relies on the President to enforce its will; if presidents disagree with a decision they may do as little as possible to enforce the decision, or in rare cases ignore a decision altogether. For example, the Supreme Court struck down Abraham Lincoln's decision to suspend
habeas corpus
during the Civil War, but he continued the policy with Congress's blessing.

Impeachment of Supreme Court Justices

Like presidents and Cabinet members, federal judges can be removed from office through a similar process: impeached by the House and convicted in a trial by the Senate that would prompt removal from office.

Article I

Establishes the Legislative Branch

Article II

Establishes the Executive Branch

Why may the Supreme Court face challenges to its legitimacy?

-Unelected, controversial/unpopular decisions, lifetime tenure

Unelected

not having been chosen by people in an election

Controversial/unpopular decisions

Because SCOTUS doesn't have to adhere to public opinion (although it may be a big factor in its decisions), SCOTUS can make controversial decisions

How does the US Constitution protect individual liberties and rights? What are the enumerated protections in the Bill of Rights?

-Civil liberties v. civil rights, limited government
-Document: Bill of Rights

Civil Liberties vs. Civil Rights

Civil Liberties are about freedoms we possess, mostly outlined in the bill of rights. Civil Rights involves equal treatment/protection under the law
-Civil Liberties: the fundamental individual rights of a free society, such as freedom of speech and the right to a trial jury, which in the United States are protected by the Bill of Rights
-Civil Rights (or Equal Rights): The right of every person to equal protection under the laws and equal access to society's opportunities and public facilities
-Civil liberties=individual rights; deal with issues of personal freedoms;;Civil rights=deals with issues of equality

Limited Government

A principle of constitutional government; a government whose powers are defined and limited by a constitution.

Bill of Rights

The first ten amendments to the Constitution which set forth basic protections for individual rights to free expression, fair trial, and property.

How does the changing interpretation of the First Amendment reflect the struggle between balancing individual liberty with societal order?

-Speech: symbolic speech, Tinker v. Des Moines (1969)
-Speech limitations: time, place and manner, defamatory, offensive v. obscene, clear and present danger, Schenck v. United States (1919), imminent lawlessness, Brandenburg v. Ohio (1969)
-Press: prior restraint, New York Times v. United States (1971)
-Religion: free exercise clause, Wisconsin v. Yoder (1972), establishment clause, Engel v. Vitale (1962)

Symbolic Speech

nonverbal communication, such as burning a flag or wearing an armband. The Supreme Court has accorded some symbolic speech protection under the first amendment.

Tinker v. Des Moines (1969)

1st Amendment Free Speech Clause ; Incorporation Case; Ruled in favor of students
-Schools restricted students from wearing anti-Vietnam war armbands
-Tinker Test/Substantial Disruption Test

Time, place and manner

Limits that government can impose on the occasion, location, and type of individual expression in some circumstances.
-this is mainly due to reduce danger and the impact on local activities (e.g. work, transportation)

Defamatory

harmful toward another's reputation

Offensive v. Obscene

-Roth v. United States (1957)=material is obscene if "taken as whole" it appeals to "prurient interest" and has no "redeeming social value." This assessment was to be made from the standpoint of "the average person, applying contemporary community standards." - This didn't work out since all material involved had some social significance
-Miller v. California (1973)=Court narrowed obscene material to "contemporary community standards;" this was hard to enforce because different places have different ideas of what obscene is (e.g. different ideas of obscenity in Mississippi and Las Vegas); Court later modified its content standard, saying that the material must be of a "particularly offensive type."
-It's hard to legally/rightly define and decide on obscenity

Clear and Present Danger

A test devised by the Supreme Court in 1919 in order to define the limits of national security. According to the test, government can't abridge political expression unless it presents a clear and present danger

Schenck v. United States (1919)

1st Amendment Free Speech Clause; NOT an incorporation case; Ruled in favor of US
-Pamphlets against US Draft; Espionage Act
-Clear and Present Danger test

Imminent Lawlessness

A legal test that says government cannot lawfully suppress advocacy that promotes lawless action unless such advocacy is aimed at producing, and is likely to produce, imminent lawless action

Brandenburg v. Ohio (1969)

1st Amendment Free Speech Clause; NOT an incorporation case; ruled in favor of Brandenburg
-KKK case
-Imminent Lawless Action Test

Prior Restraint

Government prohibition of speech or publication before the fact, which is presumed by the courts to be unconstitutional unless the justification for it is overwhelming
-pretty much government censorship
-government can only really use prior restraint during times of war (like when a journalist reports on US soldier locations)

New York Times v. United States (1971)

1st Amendment Freedom of the Press Clause; NOT an incorporation case; ruled in favor of New York Times since Pentagon Papers didn't really endanger national security (it was outdated information)
-Pentagon papers
-Prior Restraint

Free Exercise Clause

A First Amendment provision that prohibits government from interfering with the practice of religion.

Wisconsin v. Yoder (1972)

1st Amendment Freedom of Expression Clause; incorporation case; ruled in favor of Yoder
-Amish Case regarding pulling Amish kids out of school at a young age to work
-Free Exercise Clause

Establishment Clause

The First Amendment provision stating that government may not favor one religion over another or favor religion over no religion, and prohibiting Congress from passing laws respecting the establishment of religion.

Engel v. Vitale (1962)

1st Amendment Establishment Clause; incorporation case; ruled in favor of Engel (students)
-New York City students/parents said that allowing voluntary prayer before school starts (that was created by state school officials)
-Establishment Clause

How has the Court attempted to balance individual freedom and societal order through its interpretations?

-Habeas Corpus, right to bear arms, gun control, cruel and unusual punishment, death penalty limitations (minors, mental incompetence)
-Documents: Article I, Second Amendment, McDonald v. Chicago (2010), Eight Amendment, Gregg v. Georgia (1976)

Habeas Corpus

-gives defendants access to federal courts in order to argue that their rights under the Constitution of the United States were violated when they were convicted in a state court
-SCOTUS has sought to prevent pointless and multiple federal court appeals since inmates have been using too many habeas corpus appeals, thus clogging federal courts and a delay in hearing other court cases; SCOTUS wants inmates to seek state courts first and then have a single federal court appeal

Right to Bear Arms

the idea in the Second Amendment that people have an individual right to own and carry weapons

Gun Control

These Laws or policies that regulate the manufacture, sale, transfer, possession, modification, or use of firearms.

Cruel and Unusual Punishment

Court sentences prohibited by the Eighth Amendment.

Death Penalty limitations

Supreme Court cases hold that the death penalty is cruel and unusual punishment with respect to mentally incompetent persons, minors
-P.S.: Juries, not judges, are required to make determination of aggravating circumstances that could lead to death penalty sentences.

Second Amendment

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

McDonald v. Chicago (2010)

2nd Amendment and 14th Amendment Due Process Clause; incorporation case; ruled in favor of McDonald (court believed that restriction of hand guns violates the 2nd Amendment)
-Man wanted to own a handgun due to local crime but couldn't due to local restrictions on handguns
-2nd Amendment and Due Process Clause

Eighth Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Gregg v. Georgia (1976)

Death Penalty doesn't Eighth and Fourteenth Amendments
-Gregg was found guilty of Armed Robbery and Murder

How has the doctrine of Selective Incorporation extended the ill of Rights to the states?

-14th Amendment: Due Process and Equal Protection Clauses
-2nd Amendment: McDonald v. Chicago (2010)
-4th Amendment: Mapp v. Ohio (1961)
-5th/6th Amendments: Miranda v. Arizona (1966)
-6th Amendment: Gideon v. Wainwright (1963)

Selective Incorporation

The Court has decided, over time and case by case, which provisions of the Bill of Rights will extend to the states.
-mostly happened through the due process clause of the Fourteenth Amendment
-note: Fourteenth Amendment brings Bill of Rights from the federal level to the state level as well

Equal Protection Clause

14th amendment clause that prohibits states from denying equal protection under the law, and has been used to combat discrimination

Mapp v. Ohio (1961)

4th Amendment (protecting from unreasonable searches and seizures); Incorporation case; Ruled in favor of Mapp and overturned her conviction
-Police used a fake search warrant on Mapp and arrested her for illegally obtained evidence
-Exclusionary Rule: The legal principle that government is prohibited from using in trials evidence that was obtained by unconstitutional means (for example, illegal search and seizure)

Miranda v. Arizona (1966)

5th (right to no self-incrimination) and 6th Amendment (rights of the accused like right to legal counsel); Incorporation Case; ruled in favor of Miranda since criminal rights are protected by Constitution; law enforcement officials must follow them
-Ernesto Miranda was accused of kidnap and murder and wasn't aware of his constitutional rights before saying his evidence and self-incriminating himself; he said this was a violation of his rights
-Miranda Rights (what police officers tell a person who is being arrested)

Gideon v. Wainwright (1963)

6th Amendment (right to legal counsel--ensures that you receive a lawyer); Incorporation Case; Ruled in favor of Gideon since he wasn't given a lawyer
-Gideon=broke into a house in Florida and was convicted but wasn't given a lawyer
-Poor people who can't afford a lawyer will be given one through the government; this will only happen in felonies though