Presentation on theme: "The H__________ ______________:"— Presentation transcript:
1The H__________ ______________: President Puts Turkey’s Fate in Twitter’s Hands
2Extra Credit 3rd period: The who is portrayed in the cartoon? (2) What is his official position?What is the last name of the historical person alluded to in the cartoon?
3Federal vs. State Courts Federal CourtsState CourtsU.S. Supreme CourtState Supreme CourtU.S. Court of AppealsIntermediate Appellate CourtsU.S. District CourtsTrial Courts of General JurisdictionMagistrate CourtsLower Courts
4Dual court systemState courts are the real workhorses in the dual court system. In the early 1990s, state courts averaged about 90 million cases annually, compared with 270,000 in federal courts.Federal cases listed in Article III and Eleventh AmendmentFederal-question cases: involving U.S. Constitution, federal law, treatiesDiversity cases: involving different states, or citizens of different statesSome cases can be tried in either court.Most criminal law goes to staExample: if both federal and state laws have been broken (dual sovereignty) Justified: each government has right to enact laws and neither can block prosecution out of sympathy for the accusedte cts
6The jurisdiction of the federal courts The authority granted to a legal body to interpret, declare, or enforce the law. Jurisdiction determines which court system should properly judge a case or which law enforcement agency has the power of arrest in a certain area. Federal level: U.S. District Courts have original jurisdiction in all federal criminal and civil cases, meaning they must be heard first in these courts. Criminal cases are brought when violations of the U.S. Penal Code (crimes defined by Congress) are involved, such as interstate auto theft or importation of illegal drugs. In civil cases, a federal question must be raised. For example: claims of civil rights violations, maritime disputes, patent and copyright claims. The U.S. Court of Appeals has no original jurisdiction. It hears civil and criminal appeals from the District Courts and appeals from certain federal agencies and departments. The court is divided into 13 circuits, encompassing groups of states. For example: The 3rd U.S. Circuit Court of Appeals covers Delaware, New Jersey, Pennsylvania and the Virgin Islands. The U.S. Supreme Court is generally an appellate court, but it also has original jurisdiction over some cases, such as disputes between states. Appeals reach the court from lower federal courts or from a state’s highest court when a substantial federal question is in dispute. is the legal authority to decide a lawsuit brought before a Court.Does this Court have the legal authority to decide this lawsuit? If it does, it will hear and decide the case. If it does not have jurisdiction over the case to hear and decide it, it will dismiss the case.
7Constitution's grant of ORIGINAL JURISDICTION: ARTICLE III, SECTION 2In all cases affecting ambassadors, other public ministers and Consuls, and those in which a State shall be a party*, the Supreme Court shall have original jurisdictionIn all other cases before mentioned, the Supreme Court shall have appellate jurisdiction*An example of such a case is the 1998 case of State of New Jersey v. State of New York. In this case, the two states litigated the question of which state had jurisdiction over Ellis Island. "Original jurisdiction" cases are rare, with the Court hearing one or two cases each term.The Supreme Court is given its ORIGINAL jurisdiction by the U. S. Constitution, and in an early case, Marbury v Madison, 1 Cranch 137 (1803) the Court held that Congress cannot add to or change the ORIGINAL jurisdiction given the Court by the Constitution.
8Before a federal court can hear a case, or "exercise its jurisdiction," certain conditions must be met. First, under the Constitution, federal courts exercise only "judicial" powers. This means that federal judges may interpret the law only through the resolution of actual legal disputes, referred to in Article III of the Constitution as "Cases or Controversies." A court cannot attempt to correct a problem on its own initiative, or to answer a hypothetical legal question.Second, assuming there is an actual case or controversy, the plaintiff in a federal lawsuit also must have legal "standing" to ask the court for a decision. That means the plaintiff must have been aggrieved, or legally harmed in some way, by the defendant.
9CLAPPER v. AMNESTY INTERNATIONAL USA Term:Location: District Court for the Southern District of New YorkFacts of the Case Several groups, including attorneys, journalists, and human rights organizations, brought a facial challenge to a provision of the Foreign Intelligence Surveillance Act (FISA). The provision creates new procedures for authorizing government electronic surveillance of non-U.S. persons outside the U.S. for foreign intelligence purposes. The groups argue that the procedures violate the Fourth Amendment, the First Amendment, Article III of the Constitution, and the principle of separation of powers. The new provisions would force these groups to take costly measures to ensure the confidentiality of their international communications. The District Court for the Southern District of New York granted summary judgment for the government, holding that the groups did not have standing to bring their challenge. The groups only had an abstract subjective fear of being monitored and provided no proof that they were subject to the FISA. The U.S. Court of Appeals for the Second Circuit reversed, holding that the groups had standing based on a reasonable fear of injury and costs incurred to avoid that injury.Question Do respondents have Article III standing to seek prospective relief under the FISA?
11Justiciable Disputes . The question must be neither unripe nor moot. There must be an actual controversy between the parties, meaning that the parties can not agree to a lawsuit where all parties seek the same particular judgment from the court (known as a collusive suit or friendly suit); rather, the parties must each be seeking a different outcome.The question must be neither unripe nor moot.An unripe question is one for which there is not yet at least a threatened injury to the plaintiff, or where all available judicial alternatives have not been exhausted.A moot question is one for which the potential for an injury to occur has ceased to exist, or where the injury has been removed.The suit must not be seeking judgment upon a political question.Political questions involve matters where there is: "a textually demonstrable constitutional commitment of the issue to a coordinate political department" (meaning that the U.S. Constitution requires another branch of government to resolve questions regarding the issue);.Justiciable: capable of being decided by legal principles or by a court of justiceNo. The natural termination of Roe’s pregnancy did not render her suit moot.It should be noted that by the time the court considered the matter, McCorvey had given birth, which under "normal rules of the court," would have rendered the lawsuit moot.The court saw otherwise, treating this case as an exception, in that they knew the decision and subsequent opinion they were about to make would cover similar suits in the future. They recognized that "pregnancy litigation seldom will survive much beyond the trial stage," thus denying due process to the plaintiffHowever, if the issue is likely to reoccur, yet will continually become moot before any challenge can reach a court of competent jurisdiction ("capable of repetition, yet evading review"), courts may allow a case that is moot to be litigated.[State courts tend to require a similar set of circumstances, although some states permit their courts to give advisory opinions on questions of law, even though there may be no actual dispute between parties to resolve
12Article IIIThe judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
13RUBRIC for 1996 Question on Pres appts: (a) 2 Patterns:Increase in number of ind; (no credit for ind party)dems appt dems; Rs appt RsInds rarely appt(b) POLITICAL Factors—must explain how it is politicalSen CourtesyLitmus test for issuesDiversity (make it political)PartisanshipPatronageIdeology (con/ lib or restraint/ active or strict /loose)Filibuster proof (not any more)Sen Jud Committee or Full Senate (must pass, appeal to esp if divided govt)NO CREDIT for competence (not political) or public opinion
14(RUBRIC for 97Question on court activism and ideology (a) pattern: variation in activismCyclical patternVery few laws decl unC(b) Activism can be lib or conserv—this is the ONLY ok anser(c) Other Factor : EXPLAIN with egCases or opp presented to ct (did you listen to Mr Marsh? “impacted by current events”)Nature of timesIncreased legislationEg war would defer or civ rts lots of litigation or deficit, budget cuts, law suitsJudicial Activism: A judicial philosophy in which judges take on a significant policy making role, feeling less bound by precedent (a prior judicial decision that may be used as a standard in subsequent similar cases) and less likely to defer to Congress and the President
15Common law is the system of deciding cases that originated in England and which was latter adopted in the U.S.. Common law is based on precedent (legal principles developed in earlier case law) instead of statutory laws. It is the traditional law of an area or region created by judges when deciding individual disputes or cases. Common law changes over time.The U.S. is a common law country. In all states except Louisiana, which is based on Napoleonic code, the common law of England was adopted as the general law of the state, or varied by statute. Today almost all common law has been enacted into statutes with modern variations by all the states. Broad areas of the law, such as property, contracts and torts are traditionally part of the common law. Because these areas of the law are mostly within the jurisdiction of the states, state courts are the main source of common law. The area of federal common law is primarily limited to federal issues that have not been addressed by a statute.
16Key ideas but Precedent, stare decisis, the accumulated body of ”judge created law” as opposed to law created by statute; system developed in the United Kingdom and adopted in the US where it is mostly within in the jurisdiction of the states.
18Judicial reviewThe power of the federal courts to overturn or limit the enforcement of Federal or state laws or regulations that the judges determine have violated the Federal constitution. The term also covers the power of the Federal courts to overturn or limit the enforcement of state laws or regulations that the judges determine are in direct conflict with Federal laws or regulations regarding a specific subject matter where the Federal constitution gives primary jurisdiction to the Federal government. Also the power of state courts to overturn or limit the enforcement of state laws or regulations that the judges determine have violated either the Federal constitution or the constitution of their own state.
23Justice Kagan replaced Justice John Paul Stevens in August 2010D GOOD!The Roberts Court, Back row (left to right):Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, and Elena Kagan. Front row (left to right): Clarence Thomas, Antonin Scalia, Chief Justice John G. Roberts, Anthony Kennedy, and Ruth Bader Ginsburg
24Obama and CJ Roberts at the 2nd swearing in Obama and CJ Roberts at the 2nd swearing in
26The 94 judicial districts are organized into 12 regional circuits, each of which has a United States court of appeals. A court of appeals hears appeals from the district courts located within its circuit, as well as appeals from decisions of federal administrative agencies. In addition, the Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases, such as those involving patent laws and cases decided by the Court of International Trade and the Court of Federal Claims.SEE VOCABhttp://www.uscourts.gov/Common/Glossary.aspx
28Access to and Decision Making in the U.S. Supreme Court
29The Argument over Interpretation of the Constitution Original Intent: Judges and justices should determine and apply the original intent of the framers:Reagan's Attorney general, Edwin Meese, "A jurisprudence of original intent is not difficult to describe. Where the language of the Constitution is specific, it must be obeyed, Where there is a demonstrable consensus among the framers and ratifiers as to a principle stated or implied by the Constitution, it should be followed. Where there is ambiguity as to the precise meaning or reach of a constitutional provision, it should be interpreted and applied in a manner so as to at least not contradict the text of the Constitution itself."Justice Antonin Scalia: "The Constitution is not a living organism. It is a legal document. It says some things and doesn't say others.“In a speech last month in Puerto Rico,
30Versus “contemporary meaning: Constitution is a flexible document that should be interpreted in the context of the contemporary world.In response to Meese's view, Justice Brennan called the attorney general "arrogant" and "doctrinaire" stating that "it is impossible to gauge accurately the intent of the framer's on the application of principle to specific, contemporary questions." He and others maintained that what appears to be deference to the intentions of the framers is just a cover up for conservative decisions. They pointed out that trying to guess or reconstruct the framer's intentions is very difficult. Most of the issues today derive from a world the framers could not even comprehend--school bussing, the Internet, wiretapping etc. Furthermore, there is often no record of the framers intentions as a whole; they embraced general principles, not specific solutions and they often disagreed. According to Brennan, the Supreme Court must apply the Constitution in a contemporary context, and adapt it to present needs--the Constitution was never intended to preserve a "pre-existing society" but to "put into place new principles that the prior political community had not sufficiently recognized.As he saw it, "the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our times."Justice Ruth Bader Ginsburg is shown speaking in Ohio last week. In a speech last month in South Africa, she discussed what she called "dynamic versus static, frozen-in-time constitutional interpretation."
31Contrast that to Judicial Activism vs Judicial Restraint What is the correlation between ideology and original vs contemporary meaning?Contrast that to Judicial Activism vs Judicial RestraintJudicial activism: the philosophy that courts should take an active role in solving social, economical and political problemsJudicial restraint: philosophy that the courts should play minimal policy making roles, and allow the states and the other 2 branches of the fed. govt. to solve social, economic and political problems. One measure is the number of laws declared unconstitutional. Proponents emphasize that federal judges are unelected and so removed from popular control. They point out also that judges are trained as lawyers, expert in defining rights and duties, but not is designing complex institutionsBoth liberals and conservatives accuse the court of judicial activism
36Elite Recruitment: The Process of Nominating Federal Judges/Justices: See this “easy guide”And from the SJC:
37Factors affecting selection of federal judges Senatorial courtesy (not for Supreme Court!)--gives senators from a nominee's home state virtual vetoSenate judiciary committee “the gatekeeper” screen the nominees and sends a recommendation to Senate floor for approval or rejectionSenate: majority vote needed to confirm—does your party have a filibuster proof majority?? (oops nuclear option changed this for lower cts huh?)Political parties--generally from same partyRace--and genderIdeology: It is difficult to ensure however; predicting future behavior is hard; new issues can arise which president did not consider; Potential judges can refuse to answer direct questions about how they would rule on a particular caseage--since it is for life, will outlast president's termABA rating—Bush ends
39What do these definitions have in common? In the United States, senatorial courtesy is the custom whereby the Senate will refuse to confirm any presidential appointments if objections are raised by either the senior senator of the president's political party, or the senators from the state to which the appointment applies. Senatorial courtesy is strictly observed in connection with federal district court judgeships, U.S. attorneys, and federal marshals.Sometimes referred to as "the courtesy of the Senate," it is a general practice - with no written rule - applied to consideration of executive nominations. Generally, it means that nominations from a state are not to be confirmed unless they have been approved by the senators of the president's party of that state, with other senators following their colleagues' lead in the attitude they take toward consideration of such nominations.The evil wikipediaExcept in rare cases, senatorial courtesy is not honored by the president or the entire Senate when the president and home state senators are of different parties. Senatorial courtesy is strictly observed in connection with federal district court judgeships, U.S. attorneys, and federal marshals. Except in rare cases, senatorial courtesy is not honored by the president or the entire Senate when the president and home state senators are of different parties.
401. During divided govt event slower A. Whole process of nomination becoming much more contentious-- "borking*" is on the rise1. During divided govt event slower2. Senatorial courtesy practices also complicates- in fact it has the potential to shut down the nomination process in appellate court districts where no state has two senators from the party in control--that's federalism for you!3. Process has become "tit for tat" -- when dems controlled senate they said repubs were obstructing; when repubs control senate they say dems are obstructing4. Under Bush administration, (2004), Republicans consider the “nuclear option” ie getting rid of the filibuster for judicial nominations b/c Democrats have been filibustering some of their nominees; compromise reached by (14) senators “gang of 14In 2012, Dems DO exercise the nuclear obtion*According to The New York Times, the verb to bork might be defined as "to destroy a judicial nominee through a concerted attack on his character, background and philosophy.“ This definition stems from the history of the fight over Bork's nomination. Bork was widely lauded for his competence, but reviled for his character and philosophy.
43For Obama, a Record on Diversity but Delays on Judicial Confirmations By JOHN SCHWARTZPublished: August 6, 2011The federal judiciary is growing more diverse. President Obama has nominated a higher percentage of female, minority and gay judges than any previous president.Women Barack Obama: 46 of 97 confirmed judges; 47 percent George W. Bush: 73 of 322 confirmed judges; 23 percent Bill Clinton: 109 of 372 confirmed judges; 29 percentAfrican-Americans Obama: 20 of 97; 21 percent Bush: 23 of 322; 7 percent Clinton: 61 of 372; 16 percentHispanics Obama: 11 of 97; 11 percent Bush: 29 of 322; 9 percent Clinton: 25 of 372; 7 percentAsian-Americans Obama: 7 of 97; 7 percent Bush: 4 of 322; 1 percent Clinton: 5 of 372; 1 percent
44Limits on the CourtsNature of Courts: standing, no enforcement, Principle of stare decicis, moot questions, political QuestionsElk Grove Unified School Dist. V. Newdow
46Limits on the Courts “John Marshall has made his ruling; now let him enforce it” In Worcester v. Georgia, the United States Supreme Court held that Cherokees were entitled to federal protection from the actions of state governments which would infringe on the tribe's sovereignty .The court ruled that the Cherokee nation was a "distinct community" with self-government "in which the laws of Georgia can have no forceThe state of Georgia ignored the ruling.This is what Jackson actually said:"the decision of the supreme court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate."
47Limits on the Courts: Nature of Courts stare decicis: Literally, "Let the decision stand." The policy or practice of judges to abide by the legal rules or principles already established in earlier cases of the same sort.The Impact of the Lower Courts.If lower courts dislike a Supreme Court ruling, they cannot overturn it but can seek to apply it in as limited a fashion as possible.principle of discipline self-imposed on the judiciary. It doesn’t prevent the overruling of precedents, but it puts a heavy burden on the party seeking to have precedent overruledStare Decicis explained
48Limits on the Courts . . . continued President : power to appoint, propose amending constitution or rewriting law; propose changing size of Court or jurisdiction of Court,Bush nominates Alito for Supreme CourtUSA October 2005
49Limits on the Courts . . . continued Congress: senate confirmation, Congressional power to impeach and remove, Constitutional Amendment (start the process); Rewrite legislation, Redefine federal jurisdiction of the courts--entire jurisdiction for lower courts, appellate for Sup.ct. (what kinds of cases the courts will or won't have) Increase the number of courts and judges and thus the type of judges to Congress and the President likes. eg. in 1979, Congress (democratic) created 152 new District and appeals court positions--then Carter gets to appoint ;Redefine number of justices on sup.ct.Supreme Court nominee Samuel Alito being sworn in during his confirmation hearing before the Senate Judiciary Committee on Capitol Hill, Monday
50A cartoon, captioned “To Furnish the Court Practical Assistance,” by Elderman in The Washington Post, Feb. 6, 1937
52Limits on the Courts . . . continued Public opinion—at least for Supreme CourtIn support of AlitoProtesters marched in Washington Monday in an event organized by abortion opponents. President Bush addressed the crowd via telephone. NYT Jan 23, 2005
53A group of Alaskans gathered in Washington on Wednesday in support of a $2.5 billion punitive damages award against Exxon Mobil previously upheld by a federal appeals court NYT Feb.
54Post WWII Courts: Warren 1953-1969 an activist court that was Post WWII Courts: Warren an activist court that was . . .The most liberal courtRights of defendantsBrennon: “a civilization should be judged by the treatment of its outsiders”used _____ _____clause of 14th amendment to apply rights in B of Rights to statesMapp v Ohio (exclusionary rule applied to states)GideonEscobedo (right to remain silent)Miranda
56First Amendment: Engle v. Vitale 1962 (no school prayer)— solid wall Almighty God, we acknowledge our dependence upon thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.The prayer, written by the New York RegentsHappy members of the group that challenged New York's daily prayer in Engel v Vitale.
57Apportionment: Baker v Carr--tells states how to draw lines Privacy: Griswold v. Connecticut--created from "penumbras“
58Post WWII Courts . . . Continued Burger courtMore conservative than Warren BUT had some significantly liberal decisions: Nixon had 4 appointees--helped some but pres. always get surprisesDefendant's rights: weakened exclusionary rule:Affirmative Action–Bakke--says quotas are not ok, but race can be a factor but . .US Steelworker v. Weber, court found that Kaiser aluminum's special training program, which employed a quota for minorities was ok as a means to rectify past discrimination.Nix v Williams --if unlawfully obtained evidence would have been obtained anyway by lawful means, it is ok and U.S. v Leon--good faith exception--if evidence is obtained in reasonable reliance on a defective warrant it is okWhen Associate Justice Sandra Day O’Connor took her seat on the Burger Court in 1981, she was the first woman to serve on the Supreme Court of the United States. She retired on January 31, 2006
59Limits on exec: U.S. v Nixon--unanimous no exec. priv in criminal case Free speech: Buckly v ValheoWomen's issues: Reed--fist time unconstitutional because of gender (probate giving male preference as administrator); Craig v Boren (drink age) medium scrutinyAbortion: Roe v. Wade 1973
60Post WWII Courts . . . continued Rehnquist court –1986-2006 states rightsstuck down many laws passed by Congress:RFRA (Religious Freedom Restoration Act struck down),gun free zone act US v Lopez (struck down),Brady Bill in Printz (struck down background check requirement of Brady bill),Violence Against Women Protection actADA when used by state employees: University of Alabama v. Garrett barred state employees form using the provision of the ADA.MorrisonMorrisonU.S.C. § 13981, which provides a civil remedy for the victims of gender-motivated violence. The Court struck down the law because it exceeded federal authority, holding that it could not be sustained under either the Commerce Clause or §5 of the Fourteenth Amendment. N
61How? 10th amendment (states rights) 11th amendment (state can't be sued) and DISALLOWS use of commerce clause and 14th amendment (which gives Congress power to enforce provisions of 14th amendment)..Also uses an open-ended concept of state immunity that sees it as an aspect of the states' "dignity" as "sovereign entities" rather than anchored in the actual constitutional text
62Later, seemed to take a more pragmatic approach: Tennessee v Later, seemed to take a more pragmatic approach: Tennessee v. Lane 5/4 (courthouse access) ; and Nevada Department of Human Resources v. Hibbs 2003 : states can be sued under FMLA because the law was” an appropriate exercise of Congressional power to combat stereotypes about female workers' domestic responsibilities and "thereby dismantle persisting gender-based barriers" facing women in the workplace." (6/3);Medical Marijuana case said federal power to regulate commerce trumped state laws
63Rehnquist Continued:Defendant's rights: more power to police:forced confession not necessarily invalid,can search a passenger's purse or peek through window blinds (though can't squeeze packages on a bus and can't search a driver on a routine traffic violation).Police officers do not have to inform bus passengers of right to refuse permission to be searched; a series of non-legal circumstances can lead an officer to stop a van he feel suspicious ('totality of circumstances);no student privacy interest in freedom from drug testing (all after school activities)
64Rehnquist Continued:Abortion rightsCasey changes strict scrutiny to undue burden Webster no funds ok, Rust--gag rule okAffirmative action--gets strict scrutiny--Adarand Construction v Pena BUT: Michigan affirmative action case—AA is ok, if narrowly tailored—b/c diversity can be a compelling state interest—5/4 decision;
65Rehnquist court continued: Church and state "chinks in the wall“ Voucher decision "brought to fruition Rehnquist’s 29-year effort to get the court to accept the concept that a government benefit offered neutrally to religions and secular institutions, with the money following choices made by private individuals, did not violate the First Amendment's prohibition against the "establishment of religion.". 5/4 decisionRosenberger v University of Virginia and Agostini v Felton (state aid ok in remedial Ed as long as state does not endorse and there is no religious content)Lambs Chapel (if rent to public groups, have to include churches)And in 2001 the Court ruled that schools must permit an evangelical religious group to meet after school (even if it was proselytizing) on school grounds if it was permitting other groups to do so (Good News Club v. Milford Central School).but no student led prayers at football games Santa Fe School District v. Doe. (June 19, 2000) (violate dp clause) and Locke v. Davey— a state does not violate the const. if it chooses not to give scholarships to fund theology students, but does fund other students, itThe school board had argued that permitting the club to meet would be an unconstitutional endorsement of religion by the school, but the 6 member majority held that the meeting amounted to a form of private speech and to NOT allow them would be to discriminate on the basis of viewpoint which is not ok. The dissent argued that it WAS ok to discriminate against a group that was proselytizing.
66Rehnquist court continued Right of association--boy scouts case Boy Scouts of Am. vs. Dale The Court held that requiring the Boy Scouts to accept respondent as a member violated their First Amendment right of expressive association. It further concluded that the state interests embodied in New Jersey’s public accommodations law did not justify such a severe intrusion on the freedom of expressive association.Sep of power--RFRA and Morrison v Olson (Ind. counsel ok even though Reagan said it was unconstitutional because it is the function of the executive branch to initiate and conduct criminal prosecution), line item veto shifts too much power to pres.; Hamdi—exec doesn’t have “blank check” in times of war
67In Steps Big and Small, Supreme Court Moved Right June 30, 2007 The ROBERTS courtIn Steps Big and Small, Supreme Court Moved Right June 30, 2007The Roberts court
68The Roberts court is, then, conservative by the standards of recent history. But is it conservative in some absolute sense?“It is fair to say that the Supreme Court both now and historically has been to the left of the American public,” said Nathaniel Persily, a law professor at Columbia and an editor of “Public Opinion and Constitutional Controversy” (Oxford, 2008).“On school prayer, for instance, the Supreme Court is far to the left of the American public,” Professor Persily said, referring to decisions saying that officials may not organize, lead or endorse prayer or devotional Bible reading in the public schools.“On racial issues, it’s pretty clear from the Michigan cases that the Supreme Court is out of step with the American public,” Professor Persily said of the pair of 2003 decisions allowing public universities to consider race in admissions decisions. (In a 2007 decision, the Roberts court leaned the other way, forbidding public school systems from explicitly taking race into account to achieve or maintain integration.)
71Brendan Smialowski for The New York Times People lining up Monday outside the Supreme Court, in Washington, to hear arguments on the first day of the court’s term. October 2008
72A same-sex marriage ruling sparked a removal campaign. Proponents of an independent judiciary were alarmed at a vote to remove three Iowa justices who were part of a unanimous decision to allow gay marriage.
73How judges are selected in states November 3, 2010 Ouster of Iowa Judges Sends Signal to BenchBy A. G. SULZBERGERDES MOINES — An unprecedented vote to remove three Iowa Supreme Court justices who were part of the unanimous decision that legalized same-sex marriage in the state was celebrated by conservatives as a popular rebuke of judicial overreach, even as it alarmed proponents of an independent judiciary.The outcome of the election was heralded both as a statewide repudiation of same-sex marriage and as a national demonstration that conservatives who have long complained about “legislators in robes” are able to effectively target and remove judges who issue unpopular decisions. Leaders of the recall campaign said the results should be a warning to judges elsewhere. “I think it will send a message across the country that the power resides with the people,” said Bob Vander Plaats, an unsuccessful Republican candidate for governor who led the campaign. “It’s we the people, not we the courts.”But critics of the campaign, including those who see the courts as a protector of minority rights, said the politicization of uncontested judicial elections represented a danger.“What is so disturbing about this is that it really might cause judges in the future to be less willing to protect minorities out of fear that they might be voted out of office,” said Erwin Chemerinsky, the dean of the University of California, Irvine, School of Law. “Something like this really does chill other judges.”
74The Rule of Law Criminal Civil Who Files Purpose What must be proved GovernmentPrivate person/entityPurposePunishmentMoney/injunctionWhat must be provedA crime has been committed by the defendantDuty/Breach of that dutyProof required to winGuilty Beyond Reasonable Doubt > 95%Preponderance of Evidence > 50%Bill of RightsLimits conduct of government officialsDoes not applyLawyersGovernment Prosecutor/Private Attorney/Public DefenderOwn lawyer(s) for each sideIf trial by juryUsually unanimous voteUsually non-unanimous voteDefendant’s presence in courtRequired with exceptionsNot requiredTestimonyCannot be forced to testifyCan be forced to testifyAppealDefendant can appealEither side can appeal
75Something else to remember about the Federal Courts: They exercise BOTH judicial review AND statutory construction
76Statutory Construction : The process by which courts interpret the meaning of statutes, or the actual process or act of interpreting a statute’s meaningMore than half the cases the court agrees to hear are not constitutional, but statutory, To whom does a statute apply? Precisely what behavior does it prohibit? How does it fit with another law on the books that seems to suggest something quite different?Statutory cases are not necessarily less challenging for the justices or less important to the country than constitutional cases;whether the Clean Air Act applies to global warming is a question with more impact than whether a certain type of appeal in patent cases meets the jurisdictional requirements of Article III of the Constitution, to recall another case, this time a constitutional one.Stattues laws of congress
77The MajorityThe Minority The Decision The Supreme Court ruled that the Environmental Protection Agency has the authority to regulate heat-trapping gases in automobile emissions. The court further ruled that the agency could not sidestep its authority to regulate the greenhouse gases that contribute to global climate change unless it could provide a scientific basis for its refusal.