Judicial Review Judicial Review Judicial Activism Judicial Activism What happens when Judicial Review is taken to extreme? Judicial Activism is the vigorous use of judicial review to overturn laws and make public policy from the federal bench. “Super congress” Judicial review is the doctrine allowing the Supreme Court to review and overturn laws made by Congress and decisions made by the president. The right of the Judicial Branch of the government to declare a law unconstitutional
The Warren Court 1953 – – 1969 Chief Justice Earl Warren Chief Justice Earl Warren Believed in “judicial activism” Believed in “judicial activism” In the period from 1961 to 1969, the Court not hesitate to go beyond their traditional role as interpreters of the Constitution to assume a role as independent policy makers or independent "trustees" on behalf of society. In the period from 1961 to 1969, the Court not hesitate to go beyond their traditional role as interpreters of the Constitution to assume a role as independent policy makers or independent "trustees" on behalf of society. Supreme Court justices can and should creatively (re)interpret the Bill of Rights Supreme Court justices can and should creatively (re)interpret the Bill of Rights
Warren Court Decisions
Brown v. Board of Education (1954) Supreme Court unanimously held that the racial segregation of children in public schools is unconstitutional. Justification: the Fourteenth Amendment – “equal protection of the laws” It put the Constitution on the side of racial equality and galvanized the civil rights movement into a full revolution. “Rejected” Plessy vs. Ferguson
Mapp v. Ohio (1961) On May 23, 1957, police officers in a Cleveland, Ohio suburb received information that a suspect in a bombing case, as well as some illegal betting equipment, might be found in the home of Dollree Mapp. Three officers went to the home and asked for permission to enter, but Mapp refused to admit them without a search warrant. Holding a piece of paper, they broke in the door.
Mapp guilty and sentenced her to jail Police found neither the bombing suspect nor the betting equipment during their search, but they did discover some pornographic material in a suitcase by Mapp's bed. Mapp said that she had loaned the suitcase to a boarder at one time and that the contents were not her property. She was arrested, prosecuted, found guilty, and sentenced for possession of pornographic material. No search warrant was introduced as evidence at her trial.
Search and seizure Question: “May evidence obtained by a search in violation of the Fourth Amendment be used in state criminal proceedings?” Decision: Vote of 6-3 “all evidence obtained by searches and seizures in violation of the Constitution is, by [the Fourth Amendment], inadmissible in a state court.”
GRISWOLD v. CONNECTICUT 1965 Conn. Law prohibits the use of any drug, medicinal article, or instrument for the purpose of preventing pregnancy. Estelle Griswold, the executive director of Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, doctor and professor at Yale Medical School, were arrested and found guilty as accessories to providing illegal contraception. They were fined $100 each. The Supreme Court, in a 7-2 decision ruled that the law violated the "right to marital privacy" and could not be enforced against married people. The Fourteenth Amendment, creates a general "right to privacy" that cannot be ignored. The Court supports contraception.
Engel v. Vitale 1962 A group of parents sued a New York public school district for requiring students to begin each school day by reciting a nondenominational prayer. "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country."
Question: Does the prayer violate the First Amendment “establishment of religion” clause? This decision was 6 – 1 Yes, even under the non-compelling conditions of the prayer, the prayer is unconstitutional, a religious activity by nature NO PRAYER IN SCHOOL
Gideon v. Wainwright (1963) In Panama City in burglary of 12 bottles of Coca Cola, 12 cans of beer, four fifths of whiskey, and about $65 in change from the cigarette machine and jukebox of the Bay Harbor Poolroom--Clarence Earl Gideon, a penniless drifter too poor to hire a lawyer, asked that the state appoint counsel for him. His request was denied.
Right to counsel in criminal procedure 6 th Amendment Question: For non-capital and capital cases, must states appoint counsel to defendants who cannot pay? Unanimous decision, 9 – 0 the 6th Amendment and 14 th Amendment required counsel to defendants in state criminal trials, charged with serious offenses
Miranda v. Arizona (1966) Miranda was convicted of rape & kidnapping based on statements he made to police- no lawyer was present 5 th - remain silent; 14 th – equal protection
Question: Do police interrogation practices on individuals, without having notified them of their protection against self-incrimination and their right to counsel (established by Gideon), violate the Fifth Amendment? An 5 – 4 decision Incriminating evidence said by the suspect cannot be used if strict procedure were not adhered to A “law enforcement system that depends on the confession is inherently less reliable and more subject to abuse than a system that depends on extrinsic evidence”
Miranda Warning “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you.” “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you.”
Tinker v. Des Moines School District (1969) Marybeth & John Tinker were not allowed to wear black armbands to school to protest the war in Vietnam 1 st Amendment – free speech They were all sent home and suspended from school until they would come back without their armbands.
Free Speech Question: Was conduct within the protection of the Free Speech Clause of the First Amendment and the Due Process Clause of the Fourteenth. Unanimous decision, 7-2 Even students have rights – free, silent, symbolic speech …”don’t shed their rights at the schoolhouse gate” – as long as it doesn’t interfere with the educational process
Judicial Review Judicial Review Judicial RESTRAINT Judicial RESTRAINT What happens when Judicial Review limits the nature of the court's power? Policy where judges limit their own power to create new laws or policy. When language is unclear, judges will decide a cases in such a way as to uphold the law established by Congress Judicial review is the doctrine allowing the Supreme Court to review and overturn laws made by Congress and decisions made by the president. The right of the Judicial Branch of the government to declare a law unconstitutional
( ) The Burger Court NIXON
Allan Bakke twice applied for admission to the University of California Medical School at Davis and was rejected. The school reserved 16 places in each entering class of 100 for "qualified" minorities, as part of the university's affirmative action program. Bakke's qualifications exceeded those of any of the minority students admitted in those two years. Bakke contended, that he was excluded from admission solely on the basis of race. Bakke v. Regents of the University of California 1968
Question: Did the University of California violate the Fourteenth Amendment's equal protection clause, and the Civil Rights Act of 1964, by practicing an affirmative action policy that resulted in the repeated rejection of Bakke's application for admission to its medical school?
QUESTION: Challenge LBJ AFFIRMATIVE ACTION No and yes. Four of the justices contended that any racial quota system supported by government violated the Civil Rights Act of Court ordered the medical school to admit Bakke. The rigid use of racial quotas as employed at the school violated the equal protection clause of the Fourteenth Amendment. However, it was also notes that the use of race as a criterion in admissions decisions in higher education was constitutionally permissible.
Roe v Wade 1973 Texas resident, Roe, wanted to terminate her pregnancy. The state of Texas would not allow her. Texas resident, Roe, wanted to terminate her pregnancy. The state of Texas would not allow her. Texas law forbid abortion except in the case where the life of the mother was threatened Norma was uneducated, unskilled, a drug user, and an alcoholic. She became a helpless pawn in a powerful game. Poor, pregnant, and desperate, Norma McCorvey fell into the hands of two young and ambitious lawyers. They were looking for a plaintiff with whom they could challenge the Texas state law prohibiting abortion, and Norma signed on.
YES TO ABORTIONS- Abortion was found to be legal depending on the mothers trimester of pregnancy. extends to a woman's decision to have an abortion, but that right must be balanced against the state's two legitimate interests for regulating abortions: protecting prenatal life and protecting the mother's health. Abortion was found to be legal depending on the mothers trimester of pregnancy. Question: Do women have the right to abort under the “right to privacy”- 14 th Amendment?
New York Times v United States 1971 Facts: The newspaper had obtained a copy of documents known as “The Pentagon Papers”—an internal Defense Department report that detailed government deception with regard to the Vietnam War. The Pentagon Papers surfaced at a time when the American people were deeply divided on the question of United States involvement in the war. The New York Times fought for the right to publish the papers under the umbrella of the 1st Amendment.
QUESTION: Are the freedoms provided by the 1st Amendment absolute? Did the publication of the Pentagon Papers in fact pose a threat to national security? Ruling: By a 6-3 decision, the Court ruled in favor of the New York Times. The Court would not stifle the press on the order of the government. The 1 st Amendment is absolute
Miller v. California 1973 Facts: Mr. Miller sent five unsolicited advertising brochures through the mail addressed to a restaurant. When opened the manager and his mother complained to the police. The brochures advertised four adult book titles and an adult movie. Some descriptive language, pictures and drawings of men and women engaged sexually were displayed.
QUESTION: Whether material, included in a mass-mailing program, soliciting the sale of adult books and movies can be a criminal offense? Ruling: Obscene material is not protected by the First Amendment. Material can be regulated by the States, subject to the specific safeguards such as juvenile audience. Material is 'utterly without redeeming social value.’ In the years since Miller, many localities have cracked down on adult theatres and bookstores, as well as nude dancing, through restrictive zoning ordinances and public nudity laws
Griggs v. Duke Power Co. North Carolina In the 1950s Duke Power had a policy that African- Americans were allowed to work only in its Labor department, which constituted the lowest-paying positions in the company In 1955 the company added the requirement of a high school diploma and an IQ test for its higher paid jobs At the time, African American applicants, less likely to hold a high school diploma and averaging lower scores on the IQ tests, were selected at a much lower rate for these positions compared to white candidates.
QUESTION: Challenge to LBJ Civil Rights Act 1964 (job discrimination) African Americans have long received inferior education in segregated schools Court now now required that the position and condition of the job seeker be taken into account + quotas in workplace If employees who have not completed high school or taken the tests have continue to perform satisfactorily proves that the pre- tests are not valid-----Business must show tests are necessary
Swann v. Charlotte-Mecklenburg County Board of Education 1970 The school population was 29% black, and those pupils were concentrated in one quadrant of Charlotte. The district operated under a court ‐ ordered desegregation plan that focused on geographic zoning but more than half of the black pupils attended schools without any white students or teachers. To integrate black ‐ student population- transport 13,000 children in more than 100 new buses at an annual operating cost of more than $500,000 and a startup cost of more than $1 million.
QUESTION: Challenge busing to integrate public schools Supreme Court observed that the “constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole- a mathematical solution can be used regionally a state could not prohibit racially explicit transportation or assignment of schoolchildren
Supreme Court Ideological Direction Roe v. Wade Civil & Criminal Rights (Miranda)
Voting consistency with President not guaranteed Sometimes unexpected positions taken O’Connor (Reagan) on sex discrimination cases David Souter (Bush I appointment) votes routinely with Liberal side Justices’ legal views may change over time Ike appointed Warren (Conservative CA Gov.) = but led very liberal court Nixon appointed Burger (Conservative) to slow civil rights movement = but led very moderate court Judicial leanings of the Rehnquist/ Roberts Court: Kagan Kennedy Ginsburg SotoMayor Breyer Thomas Roberts Alito Rehnquist Scalia Often 5 to 4 split Presidential Legacies on the Supreme Court