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The Judicial Branch & Cases

The Judicial Branch & Cases. Court Stripping. Exceptions clause: Art 3.2-- "In all other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

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The Judicial Branch & Cases

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  1. The Judicial Branch & Cases

  2. Court Stripping Exceptions clause: Art 3.2-- "In all other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." • Ex parte McCardle (1868) • Constitutional context: Congress can bar particular paths, not whole classes of cases • But the Court can: Roberts court + “standing”

  3. Activism / “Legislating from the bench” • Federalist 81: “The arguments, or rather suggestions, upon which this charge is founded, are to this effect: "The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. …’”

  4. Fed 81: “It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force.”

  5. Fed 78 [AH]: “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” • Jackson + Indians, Lincoln + habeas, Orval Faubus + Brown

  6. Types of Federal Courts Constitutional Courts • 94 District courts (trials) • 12 US Courts of Appeals (appeals) • US Court of Appeals for the Federal Circuit • US Court of International Trade Special Courts • Courts of: Federal claims, territorial courts, District of Columbia, tax, appeals for the armed forces, appeals for veterans claims

  7. District Court Circuit Court of Appeals US Supreme Court (w/ writ of certiorari; Rule of 4 (of 9)) • State courts State Supreme Court US Supreme Court • Federalism • Supreme Court: Primarily appellate jurisdiction • Original jurisdiction: 1) a State is a party, 2) ambassadors, other public ministers • Exclusive (only) and concurrent (shared) jurisdiction

  8. 14th Amendment and Incorporation • The States have a history of violating minority rights, so we can’t let the States be in charge of the people’s rights, but the Supreme Court also has a history of violating minority rights [Scott v. Sandford, Plessy v. Ferguson, Korematsu, New London v. Kelo (2005, eminent domain)] so we can’t let them be in charge, and don’t get me started on Congress and the President. • Incorporation destroys federalism: Bill of Rights intended to limit intrusion of Federal Gov’t into powers of States; now Feds dominant w/S.C. all-powerful • Selective (not automatic) vs. Total (all amendments/clauses + Federal laws)

  9. US Supreme Court Cases

  10. Civil Liberties • Civil liberties: protections against government • Civil Rights: positive acts of government to make constitutional guarantees a reality for all people (government protections against other citizens)

  11. 1st Amendment: Religion • Free exercise clause: freedom of religion (w/o violating laws, public morals, harm health, welfare, safety) • Establishment clause: freedom from religion (wall between church and state; lots of ways through and around wall: military chaplains, tax-free status, Pledge + currency, etc.)

  12. Free Exercise • West Virginia Board of Education v. Barnette (1943): no compulsory flag-salute (Jehovah’s Witnesses) • Board of Education of the Westside Community Schools v. Mergens (1990): Christian club had to be allowed on campus if other clubs were allowed • Gonzales v. O Centro (2006): Brazilian church can take drugs • Pledge of Allegiance case kicked for custody issues not Constitutional ones (standing)

  13. Establishment • Engel v. Vitale (1962): no mandatory, nonsectarian prayer in school • Lee v. Wiesman (1992): no prayer at graduation • Santa Fe Independent School District v. Doe (2000): no prayer at high school football games • Epperson v. Arkansas (1968): no refusal to teach evolution • Edwards v. Aguillard (1987): no teaching “creation science”

  14. Lemon Test • Lemon v. Kurtzman (1971): 1) purpose of gov’t aid to religion must be clearly secular (buses to parochial school for student safety); 2) primary effect must neither advance nor inhibit religion; 3) must avoid “excessive entanglement of government with religion” • Office of Faith Based Initiatives?

  15. 1st Amendment: Speech and Press • US v. O’Brien (1968): burning draft card banned • Earl Warren: "[W]e think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidential restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest." • Prior restraint: can’t curb ideas before they are expressed (w/o huge burden)

  16. Schenck v. US (1919): “clear and present danger” (of handing out anti-WWI pamphlets to draftees) • Gitlow v. New York (1923): incorporation; “dangerous tendency” class of speech can be banned • Tinker v. Des Moines SD (1969): political speech on campus protected if not disruptive of educational purpose of school (key to all your rights on campus: schools are different) • New York Times v. US (1971): merely embarrassing info can’t be blocked by gov’t

  17. Buckley v. Valeo (1975): money is political speech if “issue” not “candidate”—magic words • Texas v. Johnson (1989): flag burning is fine • Obscenity and Press • Roth v. US (1957) and Miller v. California (1973): obscene if 1) applying contemporary local standards would find it “prurient”; 2) work depicts acts that are illegal; 3) work lacks “serious literary, artistic, political, or scientific value” • Hazelwood SD v. Kuhlmeier (1988): censorship of school papers fine

  18. Shield Laws • Press privilege? • Branzburg v. Hayes (1972): reporters must answer Qs of law enforcement • Judith Miller, Scooter Libby, Karl Rove, Valerie Plame

  19. Association • Boy Scouts of America v. Dale (2000): ok to discriminate against gays • Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) (2006): colleges can’t ban military recruiters (“don’t ask, don’t tell” is discriminatory) w/o losing all federal funds

  20. 2nd Amendment • U.S. v. Miller (1939): weapons can be regulated if don’t serve “well regulated militia” • 2nd has not been incorporated (States do what they want (for now)) • U.S. v. Emerson (5th Circuit Court of Appeals: 2001): asserts individual right to bear arms; no SC ruling yet • D.C. handgun ban District of Columbia v. Heller (Oral arguments: March 18th, 2008) • But is D.C. a State?

  21. Due Process: 5th and 14th • Procedural: how the policies are enforced gov’t must follow the rules • Substantive: what the policies are the rules must be fair

  22. Security of Home and Person • 4th Amendment • Probable Cause for warrant to search (unless “exigent circumstances” or “plain view”) • Exclusionary Rule: Weeks v. US (1914) • Incorporated: Mapp v. Ohio (1961): “fruit of the poisoned tree” • Nix v. Williams (1984): “inevitable discovery”

  23. But not at school • New Jersey v. TLO (1985): reasonable suspicion < probable cause • Vernonia School District v. Acton (1995) + Bd of Ed, Pottawatomie County v. Earls (2002): random drug testing • But during war • Ex Parte Milligan (1866): habeas corpus • Hamdi v. Rumsfeld (2004): “enemy combatants” • Unless you’re not white • Korematsu v. United States (1944) • Wiretapping • Katz v. US (1967): overturns Olmstead 4th protects “persons, not just places”

  24. Privacy? • Sheppard v. Maxwell (1966): press freedom vs. rights of accused • Griswold v. Connecticut (1965): right to contraceptives (14th) • Roe v. Wade (1973) • Planned Parenthood of Southeastern Pennsylvania v. Casey (1992): “reasonable limits” w/o imposing “undue burden” • Should a married woman have to inform her husband? No (but minors must notify parents) • Gonzales v. Carhart (2007): Partial-birth abortion and Anthony Kennedy: "While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained." That regret might later cause "severe depression and loss of esteem."

  25. Keep your mouth shut • Miranda v. Arizona (1966): 1) right to remain silent (5th), 2) anything you say can and will be used against you in court, 3) you have the right to an attorney (Powell v. Alabama (1932): Scottsboro Boys), 4) if you can’t afford an attorney one will be appointed to you (Gideon v. Wainwright (1963), [5) you can stop questioning at any time] • Even if you’re a minor: In re Gault (1966)

  26. Ok, so you were busted… • Furman v. Georgia (1972): death penalty cruel in its application • Gregg v. Georgia (1976): two phases required: trial then punishment

  27. Civil Rights • Primarily 14th • Reasonable classification: some discrimination necessary • Rational basis: does the classification bear a reasonable relationship to the achievement of some proper governmental purpose? • Strict scrutiny: “compelling governmental interest” justifies distinctions drawn

  28. Plessy, Brown • Williams v. California (2001) • Loving v. Virginia: interracial marriage (1967) • Regents of the UC v. Bakke (1978): quotas out, but race may be one of a number of factors • Adarand Constructors v. Pena (1995): affirmative action not benign, so must be “narrowly tailored” to overcome specific, clearly provable discrimination • Grutter v. Bollinger and Gratz v. Bollinger (2003): AA (points) ok for law school, not for undergrad; diversity is a legitimate goal, but must be narrowly tailored • US Army sided w/AA—national security issue • Lawrence v. Texas (2003): sodomy laws out

  29. Baker v. Carr (1962): “one man, one vote” in redistricting • Texas 2003 redistricting case: (clearly) partisan, racial impact League of United Latin American Citizens v. Perry : largely upheld, not unconstitutionally partisan, mid-decade redistrict fine, only 1 district had to be redrawn

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