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

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?

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

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

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 1953 - 1969 John Roberts Superchief or Impeach? Brown vs. Board of Ed Gideon vs. Wainwright Miranda vs. Arizona 1801 - 1835 William Rehnquist A slow move right DC v. Heller Citizens United v FEC McDonald v Chicago Warren Burger 2005 - ?? Federalism Returns Bush vs. Gore US vs. Lopez US vs. Morrison Clinton impeachment Keep the activist rulings?! Roe vs. Wade US vs. Nixon 1986 - 2005 1969 - 1986

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

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

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

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

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

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

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

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

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

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

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!!

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

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)

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)

1st Amendment Speech Clause

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)

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)

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

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

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

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!

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)

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)

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

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

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!

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

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)

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

Civil War Amendments 13  14  15 

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)

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

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

Poll Taxes and the 24th Amendment

Brown v. Board of Education (1954)

Plessy vs. Ferguson (1896)

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

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:

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

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

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

Title IX

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)

Bakke case (1978)

Korematsu Case

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

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

Dred Scott (1857)