American Civil Liberties WTPs

Separation of Powers

An act of vesting the legislative, executive, and judicial powers of government in separate bodies

cousins with checks and balances

Checks and Balances

A system that allows each branch of a government to amend or veto acts of another branch so as to prevent any one branch from exerting too much power

cousins with separation of powers

Civil v. Criminal

- cases usually involve private disputes between persons or organizations.

-cases involve an action that is considered to be harmful to society as a whole (hence, these are considered offenses against the "state" or the jurisdiction of the prosecution).

Trial v. Appellate

-Trial court is where cases start, both sides present evidence and state the case; witnesses and evidence

- Appellate court is where lawyers argue legal and policy issues before the judge or a group of judges; no witnesses and evidence

Plaintiff

a person who brings a case against another in a court of law

Defendant

party being sued or accused in a court of law

Appellee

one who has interest in upholding the decision of a lower court and is compelled to respond when the case is appealed to a higher court by the appellant

-seeks affirmance of the lower court's decision

Appellant

the party that appeals a lower-court decision to a higher court

7/27

-Refers to the 7 articles in the US Constitution and its 27 amendments

Article III

summarizes the main functions of the judicial branch

Article II

powers and responsibilities of exec branch

Stare Decisis

"Let the decision stand." standing on precedent to ensure consistency

Zero Based Jurisprudence

everything new; the opposite of precedent

-no basis on precedent

"The Least Dangerous Branch"

judicial branch, called by Alexander Hamilton

-no clear institutional identity

-frequent turnovers in personnel

-marble temple symbolizes courts transition from this

Storm Center

supreme court as a focal point for political and social controversies shaping policy and societal values

Meritocracy

selected on the basis of their ability, qualifications.

doesnt exist in supreme court nominations

Myth of Merit

The Supreme Court is not a meritocracy.

-difficulty of defining merit and the politics of judicial selection

-

-Judicial merit (criteria)

1. Judicial temperament

2. Professional expertise and competence

3. absolute personal and professional integrity

4. able, agile, lucid mind

5. Appropriate professional educational background or training

6. Ability to communicate clearly, both orally and in writing

Self-executing Paradox

-Its rulings are not self-executing.

-Depends on lower federal and state courts, other political institutions, branches, and public opinion to carry out decisions

-Paradox: Supreme Court is anti-democratic and anti-majoritarian, but is also its legitimacy is dependent on the approval of a free people

The Marble Temple

The U.S. Supreme Court building

-Chief justice William Howard Taft lobbied for the marble temple

-The Vincent Court (1946-1953) was the first to see all justices regularly working

-symbolizes the Court's changed role in American Politics - its move from being the "least dangerous" to being a coequal branch of government

-1935 completion

-greater interaction

-# of law clerks increased

Ideological Compatibility

when a president nominated a justice, he/she usually has the same ideals and is on the same side of the political spectrum

-One of the four considerations justices make when choosing law clerks.

Blue Slip

an opinion written by a Senator from the state where a federal judicial nominee resides

-In the Senate, a blue slip is a form given to a state senator to write his opinion about a federal judicial nominee from his home state.

-Underscores power between exec and leg branch and emphasizes the power individual senators hold. It may delay a nomination

Litmus Test

a question asked of a potential candidate for high office, the answer to which would determine whether the nominating official would proceed with the appointment or nomination

-that is, a promise to appoint justices who will decide cases on a given policy in the direction favored by the party.

-Test to affirm or reject whether a law, regulation or practice passes the "separation of church and state" qualities

Justices may deny a case if it

1. Lacks adverseness

2. Brought by parties who lack "standing to sue"; poses issues that either..

3. ..are not ripe or..

4. ..have become "moot"; or..

5. ..involves a "political question

Judicial Activism

refers to judicial rulings that are suspected of being based on personal opinion, rather than on existing law

-reversing precedent

making laws through their rulings by interpreting the constitution

Judicial Restraint

theory of judicial interpretation that encourages judges to limit the exercise of their own power; judges should hesitate to strike down laws unless they are clearly unconstitutional

Cue Theory

the identifiable cues that exist for frivolous certiorari petitions and important ones

-According to the "cue theory", justices disproportionately grant cases in which one or more of the following cues are present: 1. A civil liberties issue

2. disagreement in lower courts 3. the involvement of the federal gov as the petitioner

-Strongest of these cues is the participation of the federal government

"Nine Little Law Firms"

each office of each justice that act like 9 separate law firms

-each judge working in isolation unless seeks consultation with others

-courts members decide together but they deliberate alone

"The Tenth Little Law Firm"

refers to the legal office of the U.S. Supreme Court

-advise justices on procedure and jurisdiction -recommend action on special motions, like requests for expedited proceedings -handles cases that come on original jurisdiction under Article III of the constitution -advise on taxes, ethics

Primus Inter Pares

"First Among Equals"; used to describe the Chief Justice

-formally equal (vote worth the same) to other members of their group, but is accorded unofficial respect

Rule of Four

grant petitions if 4 justices think it should be granted

-During a conference, at least four justices must agree that a case merits moral argument

Norm of Secrecy

the norm under which justices do not publicly state their conflict with other justices

-Conference discussions are secret for the most part.

-Staff also expected not to share information pertaining to cases

Certiorari

a writ or order by which a higher court reviews a decision of a lower court

Riding the Circuit

-travel and hold court in the presence of district judges throughout their circuit of the country

-Judiciary Act of 1789 required that the justices ride circuit

First Monday in October

-the Supreme Court term start date

Long's Tavern

Held meetings there in 1809 while the Capitol courtroom was remodeled

-One of the meeting places of the Supreme Court in Washington D.C.

-eat, talk, drink

Bell Tavern

held meetings there from 1815-1816; d.c.; eat, talk, drink

The Cult of the Robe

All justices wear a black robes while in Court

-Since at least 1800, it has been traditional for Justices to wear black robes while in Court.

-Myth that Justices are legal monks removed from political life 

"Four Horsemen"

-George Sutherland

- James McReynolds

-Pierce Butler

-Willis Van Devanter,

_because they voted together and regularly arrived at the court in the same vehicle

_conservative bloc resistant to progressive legislation

-ho opposed the New Deal agenda of President Franklin D. Roosevelt

Packing the Court

filling the court with justices that agree with the same political ideologies

-done best FDR to push his new deal legislation

"Switch in Time" that saved 9

-Roberts didn't agree with the "4 horsemen"; made a sudden shift in opinion to make a key vote in the new deal's favor

-West Coast Hotel Co. V. Parrish

-prevent court packing legislation that was proposed by Roosevelt, although switch occurred before FDR announced plan

"Legislature from the Bench"

-justices who have political agendas and wish to create law rather than interpret the law

-The Court's power to pick the cases it wants from a very large docket enables it to assume the role of a super legislature

Amicus Curiae

"a friend of the court"; a person not a party to litigation who volunteers or is invited by the court to give his views of the case

- De Facto

in fact, in reality

civil law

the system of law concerned with private relations between members of a community rather than criminal

De Jure

as a result of law, as a result of official action

Common Law

the part of English law that is derived from custom and judicial precedent rather than statutes.

-judges establish common law through written opinions that are binding on future decisions of lower courts in the same jurisdiction. (case law)

The Great Chief Justice

Chief Justice John Marshall

-Development of the Court's institutional identity, regularized procedures, and norms of decision making

-unanimity ; discouraged dissenting opinion, sought to accommodate opposing views

The Lone Ranger

Justice William Hubbs Rehnquist was given the nickname because he wrote more solo dissents than any of his colleagues

The Umpire

Chief Justice John Glover, Jr.

-Like an umpire, the judges do not create the rules, they only had a limited + neutral role applying the law.

Super Chief

Chief Justice Earl Warren

-Warren was both admired as a champion of civil liberties and vilified as a judicial tyrant who imposed the will of an unelected Court on an unwilling majority.

-His 16 years as Chief Justice, during which the Court began to restructure American society, are discussed mainly in terms of the Court's decisions on civil rights

Senior Associate Justice

the longest standing Associate Justice on the U.S. Supreme Court

"Not of Men"

-Chief Justice John Marshall in his famous decision in Marbury v. Madison stated US a government of laws, and not of men."

-rule of law which applies to everyone equally

Majority Opinion

the opinion in a case that is subscribed by a majority of the justices who participated in the decision

-a judicial opinion agreed to by more than half of the members of a court.

Dissenting Opinion

an opinion by a justice that disagrees with the opinion reached by the majority of the Court in a case

Plurality Opinion

an opinion announcing the decision of the court but having the support of less than half of the court

-Therefore, the concurring opinion joined by the greatest number of judges is referred to as the plurality opinion.

Per Curiam

"By the court"; an unsigned opinion of the Court

-without any required explanation, Court uses to show agreement or disagreement with a case; unanimous decision

-decision announced by the Court collectively.

Concurring Opinion

an opinion by a justice that agrees with the result reached by the Court in a case by disagrees with the Court's rationale for its decision

Writ of Appeal

-An appeal is a petition to a higher court by the losing party in a lawsuit to overturn a lower court's ruling.

Writ of Certification

a method of taking a case from appellate court to the Supreme Court in which the lower court asks that some question or interpretation of law be certified, clarified, and made more certain

-The lower court asks the Supreme Court to certify the answer to a specific question in the matter.

Writ of Certiorari

a writ issued, ordering a lower court to deliver its record in a case so that the higher court may review it

En banc

"in bench"; on the bench

- a session in which a case is heard before all judges of a court (before the entire bench) rather than by a panel of judges selected from them

Ex Parte

"for one party"; motions, hearings, or orders granted on the request of and for the benefit of one party only

Centrifugal Forces

Force pushing outwards towards individuality and independence

-more so the supreme court

Centripetal Forces

-Forces push inwards, champion institutional unity and maintains the status quo -pulling for hierarchical ordering and institutional unit.

Circuit Court

-Circuit courts are appellate courts that do not hold trials but only hear appeals for cases decided by the lower court.

-divided into 13 circuits

Appellate Court

court in which appeals from legal cases are heard that have already been heard in a trial-level or other lower court

Overturn

to disagree with a decision made earlier by a lower court

Affirm

to confirm, ratify, or otherwise approve a lower court's decision on appeal

Reverse

decision of a court of appeal or higher court that the judgment/ruling of a lower court was incorrect

Vacate

to make void, annul, or rescind the decision of a lower court

Remand

to send back; after a decision in a case, the case is often sent back by a higher court to the court from which it came for further action in light of its decision

Seriatim Opinions

-Individual opinions written by different judges offering individual reasoning.

-generally used when a case does not have a majority opinion

Discuss List

-motions, petition for certiorari that are ready and deemed worth discussion

Dead List

-those motions/ petitions for certiorari considered unworthy of conference time

Law Clerks

assist judges in court or by conducting research or preparing legal documents

-junior justices

-help with screening cases and forming opinions

Bench Memo

outline pertinent facts and issues, propose possible questions to be put to participating attorneys during oral arguments and address the moments of cases

-summarizes the facts, issues, and arguments of a court case.

Trimester framework

1st Trimester: women in all states can have abortions; between mother and doctor

-2nd Trimester: reasonable regulations as it pertains to the mother's health

-3rd Trimester: abortions can be banned completely unless mothers life in danger

"Temple of law"

-The Court stands as a temple of law - an arbitrator of political disputes and an authoritative organ of law. But it remains a fundamentally political institution

Marbury v. Madison

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

Judicial review

review by the US Supreme Court of the constitutional validity of a legislative act

"the least dangerous branch"

Judicial Branch

-Alexander Hamilton called the Court the "least dangerous branch" -frequent turnovers in personnel -no clear institutional identity

appellate jurisdiction

Authority of a court to review a decision of a lower court or administrative agency

-power of an appellate court to review, amend and overrule decisions

institutionalization

-Process by which the Court establishes and maintains its internal procedures and norms and defines and its role from that of other political branches

Judicial restraint

a theory of judicial interpretation that encourages judges to limit the exercise of their own power

-narrow interpretation of constitution

Cue theory

to be considered for a hearing.

1. A civil liberties issue 2. disagreement in lower courts 3. the involvement of the federal gov as the petitioner

Article III

summarizes the main function of the Judicial Branch

Self-Executing Paradox

Supreme Court is anti-democratic and anti-majoritarian, but is also dependent on the approval of a free people.

in forma pauperis

refers to the ability whereby an indigent can have his or her case heard in federal court without charge

-"in the character or manner of a pauper".

Capital trial

-A trial in which a jury is asked to decide whether a defendant should be put to death, if found guilty

ripe

-if the case was brought t early

-if the injury claimed is not yet occurred, or if avenues of appeal have not been exhausted

-the issues presented must not be hypothetical, and the parties must have exhausted other avenues of appeal

moot

-case is brought too late

-case no longer has real adverseness or actual controversy, bcuz facts or law has changed

-case is no longer material, or that has already been resolved and has become hypothetical

political question

-Court may deny case if it raises a political question that should be answered by other political branches

-Justices may (or may not) deny a case if it:

1. Lacks adverseness

2. Brought by parties who lack "standing to sue"; poses issues that either..

3. ..are not ripe or..

4. ..have become "moot"; or..

5. ..involves an improper "political question"

Ideological compatibility

-when a president nominates a justice, he/she usually has the same ideals and is on same side of the political spectrum

equal justice under the law

• Over the threshold of the united states

• Meant to be soothing for those entering the supreme court

• phrase engraved on the front of the United States Supreme Court building

US Reports

containing the final opinions of the Court.

Supreme Court Reporter

- unofficial U.S. Supreme Court case reporter published by West; contains West head-notes and key numbers

US Reports Lawyer's Edition

- Has unique headnotes and indexing from lawyers notes

United States Code

- arranges all existing federal laws by broad subject

-Volume

-volumes store Court cases