We think you have liked this presentation. If you wish to download it, please recommend it to your friends in any social system. Share buttons are a little bit lower. Thank you!
Presentation is loading. Please wait.
Published byPaulina Tunnell
Modified about 1 year ago
COURTS AND SOCIAL CHANGE Fall 2011 – LSTU E-107 Dr. Akiba J. Covitz Associate Dean Harvard Law School CLASS 8 November 10, 2011
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Mid-Terms Book Reviews Assignments Housekeeping
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 6 –Joel Grossman, “Selecting Justices” Courts say what the law is: juristrocracy Judicial selection is a rare interface of all the branches Bork confirmation hearings: –What do we know about Bork? –Marine –Original understanding –Judicial restraint –Neutral principles –Bork: “We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own.” –YLS and then SG –“Saturday Night Massacre” –Cox, Richardson, Ruckelshaus, Bork –DC Circuit –Reagan nominates The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 6 –Joel Grossman, “Selecting Justices” Bork confirmation hearings: –Ted Kennedy –http://www.youtube.com/watch?v=oNaasFvvFlEhttp://www.youtube.com/watch?v=oNaasFvvFlE –http://www.youtube.com/watch?NR=1&v=GvFLXFCJvJA&feature=fvwphttp://www.youtube.com/watch?NR=1&v=GvFLXFCJvJA&feature=fvwp –Roe –Defeated on the floor –Resigns from DC Circuit Two Models of Judicial Selection 1) professional independent; non-British European; career track; 2) responsive-accountable-political model Ike and Earl Warren Rehnquist and Jackson (Brown memo) Catholic and Jewish Seats Geography The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 6 –Joel Grossman, “Selecting Justices” Where do justices go to law school? Waiting for the president to retire Previous judicial experience? (p. 162); Rehnquist; Kagan WOD.... Possible reforms? –Mandatory retirement age?; need to amend Con –Non-renewable fixed terms?; need amend –Make rules that apply to other judges apply to SCOTUS on disability; who would determine?; internally; really need amend –Shorter life expectancies at founding The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 7 –Judicial Federalism: State Courts in the Federal System People ignore state courts Backbone of system in terms of numbers of cases New data available How do state supreme courts resolve their cases? Kenneth Arrow: Voter’s Paradox; democratic decision-making processes cannot be both fair and rational de Tocqueville: instability of majoritarian institutions Much more frequent turnover on state supreme courts –Not a terminal job State courts essential to stability Remove some choices from majorities The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 8 –American Courts and Democracy: A Comparative Perspective PRESENTATION The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 9 –“Courts in American Popular Culture” PRESENTATION The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 10 –“What Americans Know About the Courts and Why It Matters” How distant SCOTUS nominations were from the people at founding (president – EC – Senate – State Legislatures) No direct connection to voters Robert Merhige: –http://www.washingtonpost.com/wp-dyn/articles/A Feb19.htmlhttp://www.washingtonpost.com/wp-dyn/articles/A Feb19.html p. 270: Brown; public opinion serves as a democratic check on the possible political excesses of the court; can’t put rulings directly into effect; know they need elected branches to put things into effect Fearful of popular backlash; take it into account; Bush v. Gore; impact?; undermine legitimacy?; not really? The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 10 –“What Americans Know About the Courts and Why It Matters” –P. 274: SCOTUS as “schoolmaster”; –Civic education; –Justice O’Connor: –Opinion leader?; measured in polls?; instruct and sometimes persuade; backlash.... –Little doubt that judicial decisions frame how Americans think about various political issues –Provide structure to policy alternatives –Access?; The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 11 –“The Impact of Courts on American Life” Courts are everywhere In culture; lots of TV shows; Language of rights everywhere in US Political questions become judicial questions, since early years; de Q Nearly 100 million cases per year P. 285; ordinary lumber case; not implemented; common Prisons Lack of diversity among judges Impact of malpractice suits on everyone Impact of adversarial system McDonalds Coffee Case –Hundreds of complaints; too hot to drink; hotter than industry standard – by 20 degrees; –Not really $2.7 million The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 11 –“The Impact of Courts on American Life” Cigarette litigation Has reduced percentage of smokers (297) Constitutional decisions.... Strengthen (access to those who would otherwise not) or weaken (laziness; taking our important decisions away) democracy? Brown; changed nothing; focuses exclusively on implementation; Symbolic effects?; Rosenberg says not important because you cannot measure them The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 12 –“Judicial Activism and American Democracy” We rely on our courts more than any other country; Political ?s become legal ?s Int’l trend; meta-nat’l and int’l criminal courts; human rights revolution Variety of complaints about over-active courts Related to the expansion of gov’t and what we expect from gov’t Judges and courts are still fundamentally passive; The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 12 –“Judicial Activism and American Democracy” Con-al democracy; complicated; limits on popular authority; Also democracy reinforcing, allowing for full participation; rights revolution; rights revolution in 60s; Law is not mathematics; inevitable uncertainty; SCOTUS Rarely declares state and federal law un-conal (more often state); 5 federal and 12 state from ; GWB and 50 th anniversary of Brown and gay marriage; p. 319 Courts play a key role: allowing politicians to say what they want; get votes; Bork’s fears: moving from the rule of law to the rule of judges; New Right; The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 12 –“Judicial Activism and American Democracy” Libertarian view: activism to promote freedom is OK; framer’s intended maximum freedom; courts protect it Corporate attacks on activism; deep pockets; get sued; major business issue Post 9-11; imperial presidency v. imperial judiciary; prez wants courts out of it; Court says no; Rasul v. Bush (2004); does the judiciary have jurisdiction?; military/executive matter?; 6-3 (Scalia, Rehinquist, and Thomas in dissent) Glendon, rights v. community; 61 federal judges in 1869; now more than 1,500; state courts also growing; Growing caseloads The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 12 –“Judicial Activism and American Democracy” Rise of public interest litigation; Abe Chayes; shaping public policy; Ends with a consent decree or injunction; binding parties to a given action; Contempt power; fines; imprisonment; public officials; spend more; fix this Scalia: statutes spell out legal obligations and duties; clear But statutes are often not clear; not willing to spend what is necessary; need to keep laws vague to get them to pass; what then?; As gov’t grows, so must courts? European Court of Justice Int’l Court of Justice in the Hague US opts out; wants immunity deals for foreign aid Citing foreign law? The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 13 –“Courts and the Rights Revolution” Why social change groups are attracted to courts Jehovah’s Witnesses; during war time; no legislature would have helped them Every anti-lynching bill in 30s gets blocked; not pro-civil rights; anti-lynching; no other choice; starts a process Symbolic resonance Takes years for a case to make its way through; by 1954; hundreds of years of history leading to it; nearly a century since Civil War Wait for percolation; send it back on technicality; Look for cert patterns; Post Brown; money comes from liberal social change groups, like the Ford Foundation; Civil Rights Section of DOJ created in 1939; Tushnet mentioned on p. 355; Brown did not come from nowhere; NAACP cooperating with DOJ The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 13 –“Courts and the Rights Revolution” Int’l criticism; Cold War; you call this “freedom” Truman’s committee on civil rights; To Secure These Rights; calls for Court-centered strategy; ame.htmhttp://depts.washington.edu/civilr2/slides/segregation/segregation_files/fr ame.htm Shelly v. Kraemer ;racially restrictive covenants; SG’s office gets actively involved; Shows that the street level protests followed Brown closely Brown did have an influence on sit-ins, bus boycotts, etc. The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 14 –“Discrimination Through Direct Democracy” Shows that these movements to get initiatives on the ballot; they don’t reflect the will of the people; special interests; Counter to counter-majoritarian difficulty Carolene Products v. US (1938) –Footnote 4 (http://supreme.justia.com/us/304/144/case.html#F4)http://supreme.justia.com/us/304/144/case.html#F4 –Justice Stone gives a “presumption of constitutionality” to economic regulation; SCOTUS would no longer substitute its views on economic policy for the views of Congress –But on certain types of legislation might not merit deference toward constitutional validity; prejudice against discrete and insular minorities Klarman on p. 378; Court generally cannot resolve a genuine divisive issue that splits the nation in half; The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 14 –“Discrimination Through Direct Democracy” Carolene Products: SCOTUS applied minimal scrutiny (rational basis review) to the economic regulation in this case, but proposed a new level of review for certain other types of cases Justice Stone: there are reasons to apply a more exacting standard of judicial review in other types of cases, such as legislation aimed at discrete and insular minorities, who lack the normal protections of the political process, should be an exception to the presumption of constitutionality Footnote Four introduced the idea of “levels of judicial scrutiny” “Strict scrutiny” Seems bizarre for courts to decide the legitimacy of what a super-majority decides in “direct legislation” Special interests distort Courts can put things back in shape The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 15 –“From a Republic to a Democracy” Early folks, through end of 1800s; talked about a republic, not a democracy Lots of undemocratic elements in original Con. Add post-Civil War 16 th Income Taxes; th Amendment; Senate; th ; Liquor; th ; Women’s Right to Vote; th : Poll taxes prohibited; 1964 Incorporation of the Bill of Rights Guarantee Clause of Article IV Now everyone calls it a democracy The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 16 –“Courts and the Definitions of Defendants’ Rights” States lives in their own constitutional world until 1950s Pre-incorporation Egregious injustices in South Look to 14 th Amendment as a bridge Mapp v. Ohio (1962); warrant; “lookie here....” Gideon v. Wainwright (1962); 6 th Amend. applies to states in felony cases; Miranda v. Arizona (1966); opinion is legislative in nature; providing explicit guidance; a script; police the police; Even with Reagan appointees; Warren court protections for criminal defeadants do not disappear; diluted but not overturned; p. 449: engrained; originally seen as judicial aggressiveness; now part and parcel of what American believe a democracy should stand for; p. 454: Justices of one party go too far; can lose a presidential election; give the other party something to fight against; election of 1968; The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 17 –“Public Education, Democratic Life, and the American Courts” Pierce v. Society of Sisters (1925); trying to make Catholic schools, all private schools, illegal in Oregon; passes by 54% in 1920s; Court unanimously strikes it down; right to educational liberty; p. 459: SCOTUS IS and must be anti-majoritarian; that’s the whole point sometimes p. 462: Brown; no explicit federal right to an education; where the state has seen fit to provide a public education, it then becomes a right, and must therefore be provided on equal terms; Backstory on Brown; much more of this in Klarman and Tushnet –Short on specifics; implementation; The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 17 –“Public Education, Democratic Life, and the American Courts” Boston busing battles; Ray Flynn The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 17 –“Public Education, Democratic Life, and the American Courts” Boston busing battles; Ray Flynn Federal judge, required any school with a student enrollment that was more than 50% nonwhite to be balanced according to race; School Committee ignores; Upheld on appeal to Burger SCOTUS Retaliation Judge Garrity (Holy Cross; Army; HLS; US Attorney) makes himself principal Don’t move to redress disparities in school districts (San Antonio v. Rodriguez,(1973)); poverty is not a suspect classification under the EPC The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 17 –“Public Education, Democratic Life, and the American Courts” Wisconsin v. Yoder (1972); halting education in the eighth grade for religious reasons does not keep someone from effectively participating in a democracy; Courts have had massive impact in world of education over the past century; The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 18 –“Property Rights and Democracy” Keen love of property in the US Protect democracy through protecting property rights Fifth Amendment: –“.... nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Pendulum swings back to protect property rights; The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz Chapter 19 –Our Old Friend, Baum Specialization Access Pro Se Alternatives Adhesive contracts ADR Elections Reform The Judicial Branch
Harvard LSTU E Fall '11 Class 8 - © Akiba J. Covitz For Next Class November 17: Assignment : Finish Hall & McGuire Read Klarman – It’s Really, Really LONG START READING NOW!!!!!
AP Government Review. Answering MCQs Read the WHOLE question Turn EXCEPT questions turn into T/F questions If you are a more deliberate test taker, skip.
WHICH GOVERNMENT AGENCY IS DIRECTLY RESPONSIBLE FOR HIRING MOST FEDERAL EMPLOYEES? A. THE DEPARTMENT OF STATE B. THE OFFICE OF MANAGEMENT AND BUDGET C.
9.1 Introduction Purpose What- We are going to learn about compromise How- by taking a final law exam on the Constitution Why- so we understand how it.
Supreme Court Judiciary – The cornerstone of our democracy.
AP U.S. Gov & Politics. Prepare! Dont cram the night before, pace yourself! Focus on studying items you do not know. The morning of…. Wake up on time.
CHAPTER 16 THE JUDICIAL SYSTEM. Roots of the Federal Judiciary Hamilton called it “the least dangerous branch.” Little on the judiciary in the constitution.
NORTH CAROLINA ECONOMICS, LEGAL, AND POLITICAL SYSTEMS REVIEW Instructions for use: A) click mouse and a question will appear with possible answers. B)
State & Local Government Judicial Politics in the States.
The Warren and Rehnquist Courts: Civil Rights and Democracy in the United States By Samantha C.
The United States Constitution What?. You may be asking… Who is this old guy? What is this Constitution? Why in the world are we spending an hour and.
Click your mouse anywhere on the screen to advance the text in each slide. After the starburst appears, click a blue triangle to move to the next slide.
Welcome to Presentation Plus! Presentation Plus! Civics Today Copyright © by The McGraw-Hill Companies, Inc. Developed by FSCreations, Inc., Cincinnati,
Chapter 4 Civil Liberties and Public Policy Cornell Notes.
Street Law Ch. 05: The Court System. Ch. 01: Kinds of Laws Key Terms Criminal Laws Felonies Misdemeanors Civil Laws Plaintiff Defendant Prosecutor Beyond.
Review Session #6 Judicial Branch The Courts Civil Liberties Civil Rights.
The Presidency. Presidential vs. Parliamentary Systems Presidents may be outsiders; prime ministers are always insiders, chosen by the members of the.
A New Nation Standard 2. A New Nation USHC- 2.1 Summarize the early development of representative government and political rights in the American colonies,
The Struggle For Democracy Ch. 15 – Freedom: The Struggle for Civil Liberties.
DUE PROCESS OF LAW AND EQUAL PROTECTION. I. The New Judicial Federalism A.The Constitution is the minimum of a persons rights, but such rights are NOT.
The Study of American Government Chapter 1. Political Power Ability to get others to act in accordance with desires/intentions Power as it affects government.
Feb Why did the framers promise to add a bill of rights to the U. S. Constitution following ratification? a.Anti Federalists would not support.
Chapter 5 – Citizenship and the Constitution Section Notes Understanding the Constitution The Bill of Rights Rights and Responsibilities of Citizenship.
7 Institutions: Meat and Potatoes. Institutions The U.S. presidency provides a perfect example of how we have built up an ideal and impossible image of.
Texas Government (Part 1: Chapter 27) Essential Questions 1.To what extent is the government of Texas a “mirror image” of the US government (including.
Slide Show Intro Presentation Plus! United States Government: Democracy in Action Copyright © by The McGraw-Hill Companies, Inc. Send all inquiries to:
FISA vs. THE CONSTITUTION: Why the Foreign Intelligence Surveillance Act is Unconstitutional and How It Contributed to the Success of the 9/11 Attacks.
ORDER VS. EQUALITY VS FREEDOM WHICH ONE IS MORE IMPORTANT TO YOU, AND WHY? WHY SHOULD THIS QUESTION EVEN MATTER TO ME?
Welcome to class… What are the 3 branches of the national government? What is the main job of each branch? What rights does the Declaration of Independence.
Unit IV Political Participation Chapters 5-9. What is a political party? A group of people who seek to control government by winning elections and holding.
The Presidency. What Qualities do you expect Presidents to have? What are the 5 most desirable traits or qualities that you expect the President of the.
© 2016 SlidePlayer.com Inc. All rights reserved.