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

2. Describe the role and influence of the judicial branch, relating it to important concepts and cases involving civil liberties and civil rights
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?

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 don’t)
Judicial Restraint
Strict Constructionist
Minimal policy-making role
Leave (defer) to other 2

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

7. Federal Judicial Numbers
Article with info
on Judicial Branch 3 4 5 9 13 94
# 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!
IG’s mobilized as never before to urge a “No”
ACLU, NOW, NAACP, and Planned Parenthood
Example of IG’s 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
Interest group access
Remember: IG’s never
represent public opinion!!
Lobby, lobby, lobby
IG’s can fund cases
IG’s 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
1st Amendment
Key cases: Engel v. Vitale (1962)
Lemon v. Kurtzman (1971)

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

21. 1st 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. 1st 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 gov’t 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. 4th 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. 5th Amendment
Grand jury – determines whether to bring criminal charges
No double jeopardy
Plead the 5th (no need to self-incriminate)
Due Process Clause (restrains Fed govt)
Eminent Domain (Takings Clause)
Kelo v. New London (2005)

29. 6th 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. 8th 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 (14th 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 14th 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 14th A’s 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)
Gov’t 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
Can’t treat people w/unreasonable/ unconstitutional differences
Involve constitutional rights that are afforded to people as individuals
Think EPC of the 14th Amendment

36. Civil War Amendments
13 
14 
15 

37. Equal Protection Clause (14th 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 24th 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 it’s 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. Equal Employment Opportunity Commission
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. 19th 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)