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Review Session #6 Judicial Branch The Courts Civil Liberties Civil Rights.

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1 Review Session #6 Judicial Branch The Courts Civil Liberties Civil Rights

2 What are the perspectives that shape court rulings? What are the processes and politics involved in a case before the Supreme Court? How do civil liberties and civil rights connect with the Constitution? What are significant cases that shape our present view of CL/CR? Describe the role and influence of the judicial branch, relating it to important concepts and cases involving civil liberties and civil rights


4 Marbury vs. Madison Established the principle of judicial review Impact makes the Supreme Court an equal player with Congress and the president ==

5 Judicial Points of View Liberals Conservatives Judicial Activism Loose Constructionist Make policy decisions Correct injustices (that other dont) Judicial Restraint Strict Constructionist Minimal policy-making role Leave (defer) to other 2

6 The Hail to the Chiefs…. Justices, That Is John Marshall Federalist extraordinaire!!! Marbury vs. Madison McCulloch vs. Maryland Gibbons vs. Ogden Earl Warren Superchief or Impeach? Brown vs. Board of Ed Gideon vs. Wainwright Miranda vs. Arizona Warren Burger Keep the activist rulings?! Roe vs. Wade US vs. Nixon William Rehnquist Federalism Returns Bush vs. Gore US vs. Lopez US vs. Morrison Clinton impeachment John Roberts ?? A slow move right DC v. Heller Citizens United v FEC McDonald v Chicago

7 Federal Judicial Numbers Article with info on Judicial Branch # of justices needed to put a case on the docket Majority vote on the Supreme Court # of justices on the SCOTUS (determined by Congress) # of federal appellate courts # of federal district courts

8 Appointment All Federal judges!! Presidential nomination Senate confirmation: –Majority vote needed –A political process; from committee hearings to the floor vote Chance for legacy!!

9 Appointment – Denied!! Being Borked Reagan nominates Robert Bork in 1987 Ted Kennedy goes public w/outrage Longest Senate confirmation hearings ever! IGs mobilized as never before to urge a No –ACLU, NOW, NAACP, and Planned Parenthood –Example of IGs working as a coalition! Borked = coordinated attack against a nominee to prevent his or her Senate approval Hyperpolitical

10 Selection Criteria Political ideology Party and personal loyalties Acceptability to the Senate Judicial experience Race and gender Litmus test Roe v. Wade

11 Removal Removal (Impeachment) Retire Resign Because of their life tenure, they are suppose to be above the political games in which elected officials engage, along with being less affected by public opinion

12 Layers of the Court System Federal level State level Each level has 3 tiers: District Appellate Supreme Court

13 Arrival to the Court On appeal from the a state Supreme Court On appeal from a state Federal Court of Appeals (#1) A conflict between 2 states needing a federal solution Most common caseload source appellate jurisdiction Petition the court for a writ of certiorari Rule of four grants the writ Placed on the docket briefs filed (IG input…) Oral arguments Conference factors in decision (ex.- stare decisis) vote Opinions written

14 Let me continue…Briefly… Amicus Curiae briefs are submitted –Means for interest groups to lobby the court Lobby, lobby, lobby Interest group access Remember: IGs never represent public opinion!! IGs can fund cases IGs can file lawsuits/use litigation

15 My Opinion on Decisions Majority contains what the court orders, its decision! Concurring supports the majority opinion, but for a different reason Dissenting opposes majority decision, tells why Per Curiam by the court; the court acting as a whole; unsigned

16 Standing for the Sitting You must have connection to or suffer harm from…..the party involved….to have the legal right to bring the suit

17 Powerful? Powerless? Least Dangerous Branch – Alexander Hamilton (Fed #78) –No power of the purse (Congress) –No power of the sword (President) Most feared group of 9 in the country – –Unelected –Not easily removable –Activists make laws from the bench - Hard to check!!

18 Civil Liberties Protections from the abuse of government; power enjoyed by all Fundamental rights that protect citizens from government intrusions The Bill of Rights = Civil Liberties

19 Establishment Clause Prohibits government from establishing one religion as the official religion in our country Cannot take action to show preference to one religion over another 1 st Amendment Key cases: Engel v. Vitale (1962) Lemon v. Kurtzman (1971)

20 Free Exercise Clause Prohibits the government from hindering the free exercise of ones religion 1 st Amendment Cases and Topics: Oregon v. Smith ( drug use in religious ceremonies - no) Reynolds v. U.S. (polygamy - no)

21 1 st Amendment Speech Clause

22 Symbolic Speech Non-Verbal expression of belief It is protected as a form of speech (especially if political speech) Tinker v. DesMoines (1969) Texas v. Johnson (1989)

23 Rights: School v. Real World Students do not lose their rights, but they noticeably limited in the school context Tinker v. DesMoines (1969) Bethel v. Frasier (1986) Hazelwood v. Kuhlmeier (1988) Morse v. Frederick (2007) –Bong Hits 4 Jesus Safford USD#1 v. Redding (2009)

24 1 st Amendment Press Clause Allows for Interest Groups and Political Parties to publish their views/opinions

25 Prior Restraint When government stops expression before it is made (censorship!) Ex: when govt prohibits a demonstration by a radical group b/c it is likely to be violent Presumed to be unconstitutional Good case examples: Not an absolute right (think Near v. Minnesota) NY Times v. U.S. (1971) – with the Pentagon Papers

26 4 th Amendment No unreasonable searches and seizures Authorities must follow these established procedures!! Probable Cause A warrant is issue when a demonstration of the facts permits a reasonable belief that a crime was committed

27 Exclusionary Rule Evidence illegally seized can be withheld as evidence in the criminal prosecution of the accused Mapp v. Ohio (1961) Incorporation occurs here b/c state law of Ohio is held to the federal exclusionary standard!

28 5 th Amendment Grand jury – determines whether to bring criminal charges No double jeopardy Plead the 5 th (no need to self-incriminate) Due Process Clause (restrains Fed govt) Eminent Domain (Takings Clause) –Kelo v. New London (2005)

29 6 th Amendment Speedy and public trial Impartial jury Know the charge against you Confronted with witnesses (question them) Call witness Right to counsel –Key case: Gideon v. Wainwright (1966)

30 8 th Amendment No excessive Bail or Fines No Cruel and Unusual Punishment Death penalty okay in 38 states and w/Feds Furman v. Georgia (1972) – DP; no Gregg v. Georgia (1976) – DP; yes Baze v. Rees (2008) – one approach; yes

31 Due Process Clause (14 th A) The door through which the Bill of Rights is applied to the states The idea that the Bill of Rights is applied to the states in a gradual manner, on a case by case basis, via the due process clause of the 14 th Amendment…… = SELECTIVE INCORPORATION

32 Incorporation Theory Begins with Gitlow v. New York (1925) Begins to undo Barron v. Baltimore (1833) SC applied the Bill of Rights to the states through the application of the 14 th As due process clause Each liberty in the B of R is applied one at a time, case by case selectively Not all features of the B of R are incorporated!

33 ACLU American Civil Liberties Union Interest Group!! Uses litigation!!

34 Right to Privacy & Abortion Griswold v. Connecticut (1965) Roe v. Wade (1973) Lawrence v. Texas (2003) –Govt cannot have a law prohibiting consentual sex between people of the same sex (no legitimate interest in regulating this)

35 Civil Rights Protections from discrimination based on race, gender, or other minority status Cant treat people w/unreasonable/ unconstitutional differences Involve constitutional rights that are afforded to people as individuals Think EPC of the 14 th Amendment

36 Civil War Amendments

37 Equal Protection Clause (14 th A) Clause that prohibits states from denied its citizens equal protection under the law Used to combat various types of discrimination!! The door through which some Civil Rights legislation occurs –CRA (1964) –VRA (1965)

38 Types of Segregation DeFacto segregation by fact, based on past conditions (economic, social, residential); often results from housing patterns rather than law DeJure segregation by law or agency action; this is segregation required by the government

39 Other Methods of Disenfranchisement/Discrimination White-only Primaries Ended in the Texas case Smith v. Allwright (1994) Poll Taxes Literacy Tests Physical Intimidation

40 Poll Taxes and the 24 th Amendment

41 Brown v. Board of Education (1954)

42 Plessy vs. Ferguson (1896)

43 Busing and Swann (1971) Charlotte-Mecklenburg Board of Education Court rules that its okay to remedy past wrongs with broad and flexible actions Desegregation regarding busing and personnel

44 Civil Rights Act of 1964 Prohibited discrimination in hiring Prohibited discrimination in places of public accommodations Outlawed bias in federally funded programs Created and enforced by the EEOC (Equal Employment Opportunity Commission) Key case:

45 EEOC Created by JFK through an Executive Order The primary U.S. Agency for enforcing civil rights and equal opportunity in Federal and private sector workplaces Equal Employment Opportunity Commission

46 Voting Rights Act of 1965 Suspends literacy tests Empowered federal officials to register and protect voters Empowered federal officials to count ballots Prohibits states from changing voting procedures w/o federal permission

47 19 th Amendment (1920) Women voting!! Doubles the electorate!! Part of a series of Progressive reforms –Australian ballots –Direct election of Senators –Direct primaries –Civil service exams –Initiative/Referendum/Recall procedures All meant to:weaken power of parties enhance power of people

48 Title IX

49 Equal Rights Amendment Passes out of Congress in 1972 Fails to reach the ¾ of states needed for ratification (7 year window informal amendment idea!!) Only received 35 of 38 states needed (even after a 3 year extension granted by Congress and the President)

50 Bakke case (1978)

51 Korematsu Case

52 ADA (1990) Equal access for those with physical and mental disabilities Reasonable accommodations must be made

53 Reed vs. Reed (1971) Males were > females in the appointment as administrators of estates Court rules this unconstitutional b/c it violates the EPC

54 Dred Scott (1857)

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