The Judicial Branch The Judicial Branch & Cases& Cases

Court StrippingCourt StrippingExceptions clause: Art 3.2-- "In all other Cases Exceptions clause: Art 3.2-- "In all other Cases

before mentioned, the supreme Court shall before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under and Fact, with such Exceptions, and under such Regulations as the Congress shall such Regulations as the Congress shall make." make."

Ex parte McCardleEx parte McCardle (1868) (1868) Constitutional context: Congress can bar Constitutional context: Congress can bar

particular paths, not whole classes of casesparticular paths, not whole classes of cases But the Court can: Roberts court + But the Court can: Roberts court +

“standing”“standing”

Activism / “Legislating from the Activism / “Legislating from the bench”bench”

Federalist 81: “The arguments, or rather Federalist 81: “The arguments, or rather suggestions, upon which this charge is founded, suggestions, upon which this charge is founded, are to this effect: "The authority of the proposed are to this effect: "The authority of the proposed Supreme Court of the United States, which is to Supreme Court of the United States, which is to be a separate and independent body, will be be a separate and independent body, will be superior to that of the legislature. The power of superior to that of the legislature. The power of construing the laws according to the construing the laws according to the spiritspirit of the of the Constitution, will enable that court to mould them Constitution, will enable that court to mould them into whatever shape it may think proper; into whatever shape it may think proper; especially as its decisions will not be in any especially as its decisions will not be in any manner subject to the revision or correction of manner subject to the revision or correction of the legislative body. This is as unprecedented as the legislative body. This is as unprecedented as it is dangerous. …’”it is dangerous. …’”

Fed 81: “It may in the last place be observed Fed 81: “It may in the last place be observed that the supposed danger of judiciary that the supposed danger of judiciary encroachments on the legislative authority, encroachments on the legislative authority, which has been upon many occasions which has been upon many occasions reiterated, is in reality a phantom. Particular reiterated, is in reality a phantom. Particular misconstructions and contraventions of the misconstructions and contraventions of the will of the legislature may now and then will of the legislature may now and then happen; but they can never be so extensive happen; but they can never be so extensive as to amount to an inconvenience, or in any as to amount to an inconvenience, or in any sensible degree to affect the order of the sensible degree to affect the order of the political system. This may be inferred with political system. This may be inferred with certainty, from the general nature of the certainty, from the general nature of the judicial power, from the objects to which it judicial power, from the objects to which it relates, from the manner in which it is relates, from the manner in which it is exercised, from its comparative weakness, exercised, from its comparative weakness, and from its total incapacity to support its and from its total incapacity to support its usurpations by force.”usurpations by force.”

Fed 78 [AH]: “The judiciary, on the Fed 78 [AH]: “The judiciary, on the contrary, has no influence over either contrary, has no influence over either the sword or the purse; no direction the sword or the purse; no direction either of the strength or of the either of the strength or of the wealth of the society; and can take wealth of the society; and can take no active resolution whatever. It may no active resolution whatever. It may truly be said to have neither FORCE truly be said to have neither FORCE nor WILL, but merely judgment; and nor WILL, but merely judgment; and must ultimately depend upon the aid must ultimately depend upon the aid of the executive arm even for the of the executive arm even for the efficacy of its judgments.”efficacy of its judgments.” Jackson + Indians, Lincoln + habeas, Jackson + Indians, Lincoln + habeas,

Orval Faubus + Orval Faubus + BrownBrown

Types of Federal CourtsTypes of Federal Courts

Constitutional CourtsConstitutional Courts 94 District courts (trials)94 District courts (trials) 12 US Courts of Appeals (appeals)12 US Courts of Appeals (appeals) US Court of Appeals for the Federal CircuitUS Court of Appeals for the Federal Circuit US Court of International TradeUS Court of International Trade

Special CourtsSpecial Courts Courts of: Federal claims, territorial courts, Courts of: Federal claims, territorial courts,

District of Columbia, tax, appeals for the District of Columbia, tax, appeals for the armed forces, appeals for veterans claimsarmed forces, appeals for veterans claims

District CourtDistrict Court Circuit Court of Appeals Circuit Court of Appeals US Supreme Court (w/ writ of certiorari; US Supreme Court (w/ writ of certiorari; Rule of 4 (of 9))Rule of 4 (of 9))

State courtsState courts State Supreme Court State Supreme Court US US Supreme CourtSupreme Court FederalismFederalism

Supreme Court: Primarily appellate Supreme Court: Primarily appellate jurisdictionjurisdiction

Original jurisdiction: 1) a State is a party, Original jurisdiction: 1) a State is a party, 2) ambassadors, other public ministers2) ambassadors, other public ministers

Exclusive (only) and concurrent (shared) Exclusive (only) and concurrent (shared) jurisdictionjurisdiction

1414thth Amendment and Incorporation Amendment and Incorporation

The States have a history of violating minority The States have a history of violating minority rights, so we can’t let the States be in charge of rights, so we can’t let the States be in charge of the people’s rights, but the Supreme Court also the people’s rights, but the Supreme Court also has a history of violating minority rights [Scott v. has a history of violating minority rights [Scott v. Sandford, Plessy v. Ferguson, Korematsu, New Sandford, Plessy v. Ferguson, Korematsu, New London v. Kelo (2005, eminent domain)] so we London v. Kelo (2005, eminent domain)] so we can’t let them be in charge, and don’t get me can’t let them be in charge, and don’t get me started on Congress and the President.started on Congress and the President.

Incorporation destroys federalism: Bill of Rights Incorporation destroys federalism: Bill of Rights intended to limit intrusion of Federal Gov’t into intended to limit intrusion of Federal Gov’t into powers of States; now Feds dominant w/S.C. all-powers of States; now Feds dominant w/S.C. all-powerfulpowerful Selective (not automatic) vs. Total (all Selective (not automatic) vs. Total (all

amendments/clauses + Federal laws)amendments/clauses + Federal laws)

US Supreme Court US Supreme Court CasesCases

Civil LibertiesCivil Liberties

Civil liberties: protections Civil liberties: protections againstagainst governmentgovernment

Civil Rights: positive acts of Civil Rights: positive acts of government to make constitutional government to make constitutional guarantees a reality for all people guarantees a reality for all people (government protections against (government protections against other citizens)other citizens)

11stst Amendment: Religion Amendment: Religion

Free exercise clause: freedom of Free exercise clause: freedom of religion (w/o violating laws, public religion (w/o violating laws, public morals, harm health, welfare, safety)morals, harm health, welfare, safety)

Establishment clause: freedom from Establishment clause: freedom from religion (wall between church and religion (wall between church and state; lots of ways through and state; lots of ways through and around wall: military chaplains, tax-around wall: military chaplains, tax-free status, Pledge + currency, etc.)free status, Pledge + currency, etc.)

Free ExerciseFree Exercise West Virginia Board of EducationWest Virginia Board of Education v. v.

BarnetteBarnette (1943): no compulsory flag-salute (1943): no compulsory flag-salute (Jehovah’s Witnesses)(Jehovah’s Witnesses)

Board of Education of the Westside Board of Education of the Westside Community Schools Community Schools v.v. Mergens Mergens (1990): (1990): Christian club had to be allowed on Christian club had to be allowed on campus if other clubs were allowedcampus if other clubs were allowed

Gonzales v. O CentroGonzales v. O Centro (2006): Brazilian (2006): Brazilian church can take drugschurch can take drugs

Pledge of Allegiance case kicked for Pledge of Allegiance case kicked for custody issues not Constitutional ones custody issues not Constitutional ones (standing)(standing)

EstablishmentEstablishment

EngelEngel v. v. VitaleVitale (1962): no mandatory, (1962): no mandatory, nonsectarian prayer in schoolnonsectarian prayer in school

LeeLee v. v. WiesmanWiesman (1992): no prayer at (1992): no prayer at graduationgraduation

Santa Fe Independent School DistrictSanta Fe Independent School District v. v. DoeDoe (2000): no prayer at high school football games(2000): no prayer at high school football games

EppersonEpperson v. v. Arkansas Arkansas (1968): no refusal to (1968): no refusal to teach evolutionteach evolution

EdwardsEdwards v. v. AguillardAguillard (1987): no teaching (1987): no teaching “creation science”“creation science”

Lemon TestLemon Test

LemonLemon v. v. KurtzmanKurtzman (1971): 1) (1971): 1) purposepurpose of gov’t aid to religion must of gov’t aid to religion must be clearly secular (buses to parochial be clearly secular (buses to parochial school for student safety); 2) primary school for student safety); 2) primary effecteffect must neither advance nor must neither advance nor inhibit religion; 3) must avoid inhibit religion; 3) must avoid “excessive entanglement of “excessive entanglement of government with religion”government with religion”

Office of Faith Based Initiatives?Office of Faith Based Initiatives?

11stst Amendment: Speech and Press Amendment: Speech and Press US US v. v. O’Brien O’Brien (1968): burning draft card (1968): burning draft card

bannedbanned Earl Warren: "[W]e think it clear that a Earl Warren: "[W]e think it clear that a

government regulation is sufficiently government regulation is sufficiently justified if it is within the constitutional justified if it is within the constitutional power of the Government; if it furthers an power of the Government; if it furthers an important or substantial governmental important or substantial governmental interest; if the governmental interest is interest; if the governmental interest is unrelated to the suppression of free unrelated to the suppression of free expression; and if the incidential restriction expression; and if the incidential restriction on alleged First Amendment freedoms is not on alleged First Amendment freedoms is not greater than is essential to the furtherance greater than is essential to the furtherance of that interest." of that interest."

Prior restraintPrior restraint: can’t curb ideas : can’t curb ideas beforebefore they are expressed (w/o huge burden)they are expressed (w/o huge burden)

Schenck Schenck v. v. USUS (1919): “clear and present (1919): “clear and present danger” (of handing out anti-WWI danger” (of handing out anti-WWI pamphlets to draftees)pamphlets to draftees)

Gitlow Gitlow v. v. New York New York (1923): (1923): incorporationincorporation; ; “dangerous tendency” class of speech can “dangerous tendency” class of speech can be bannedbe banned

Tinker Tinker v. v. Des Moines SD Des Moines SD (1969): political (1969): political speech on campus protected speech on campus protected if not if not disruptive disruptive of educational purpose of school of educational purpose of school (key to all your rights on campus: schools (key to all your rights on campus: schools are different)are different)

New York TimesNew York Times v. v. US US (1971): merely (1971): merely embarrassing info can’t be blocked by gov’tembarrassing info can’t be blocked by gov’t

Buckley Buckley v. v. Valeo Valeo (1975): money is political (1975): money is political speech if “issue” not “candidate”—magic speech if “issue” not “candidate”—magic wordswords

Texas Texas v. v. Johnson Johnson (1989): flag burning is fine(1989): flag burning is fine Obscenity and PressObscenity and Press

Roth Roth v. v. US US (1957) and (1957) and Miller v. CaliforniaMiller v. California (1973): obscene if 1) applying contemporary (1973): obscene if 1) applying contemporary local standards would find it “prurient”; 2) local standards would find it “prurient”; 2) work depicts acts that are illegal; 3) work work depicts acts that are illegal; 3) work lacks “serious literary, artistic, political, or lacks “serious literary, artistic, political, or scientific value”scientific value”

Hazelwood SD Hazelwood SD v. v. Kuhlmeier Kuhlmeier (1988): (1988): censorship of school papers finecensorship of school papers fine

Shield LawsShield Laws

Press privilege?Press privilege? BranzburgBranzburg v. v. HayesHayes (1972): reporters (1972): reporters

must answer Qs of law enforcementmust answer Qs of law enforcement Judith Miller, Scooter Libby, Karl Judith Miller, Scooter Libby, Karl

Rove, Valerie PlameRove, Valerie Plame

AssociationAssociation

Boy Scouts of America Boy Scouts of America v. v. DaleDale (2000): ok to discriminate against (2000): ok to discriminate against gaysgays

Rumsfeld Rumsfeld v.v. Forum for Academic and Forum for Academic and Institutional Rights (FAIR)Institutional Rights (FAIR) (2006): (2006): colleges can’t ban military recruiters colleges can’t ban military recruiters (“don’t ask, don’t tell” is (“don’t ask, don’t tell” is discriminatory) w/o losing all federal discriminatory) w/o losing all federal fundsfunds

22ndnd Amendment Amendment

U.S.U.S. v. v. Miller Miller (1939): weapons can be (1939): weapons can be regulated if don’t serve “well regulated regulated if don’t serve “well regulated militia”militia”

22ndnd has has notnot been incorporated (States do been incorporated (States do what they want (for now))what they want (for now))

U.S. v. EmersonU.S. v. Emerson (5 (5thth Circuit Court of Circuit Court of Appeals: 2001): asserts individual right to Appeals: 2001): asserts individual right to bear arms; no SC ruling yetbear arms; no SC ruling yet

D.C. handgun banD.C. handgun ban District of Columbia v. District of Columbia v. HellerHeller (Oral arguments: March 18 (Oral arguments: March 18thth, 2008), 2008) But is D.C. a State?But is D.C. a State?

Due Process: 5Due Process: 5thth and 14 and 14thth

Procedural: Procedural: howhow the policies are the policies are enforcedenforced gov’t must follow the gov’t must follow the rulesrules

Substantive: Substantive: what what the policies arethe policies are the rules must be fairthe rules must be fair

Security of Home and PersonSecurity of Home and Person

44thth Amendment Amendment Probable Cause for warrant to search Probable Cause for warrant to search

(unless “exigent circumstances” or (unless “exigent circumstances” or “plain view”)“plain view”)

Exclusionary Rule: Exclusionary Rule: WeeksWeeks v. v. USUS (1914) (1914) Incorporated: Incorporated: MappMapp v. v. OhioOhio (1961): (1961):

“fruit of the poisoned tree”“fruit of the poisoned tree” NixNix v. v. Williams Williams (1984): “inevitable (1984): “inevitable

discovery”discovery”

But not at schoolBut not at school New Jersey New Jersey v. v. TLO TLO (1985): reasonable (1985): reasonable

suspicion < probable causesuspicion < probable cause Vernonia School DistrictVernonia School District v. v. ActonActon (1995) + (1995) +

Bd of Ed, Pottawatomie County Bd of Ed, Pottawatomie County v. v. Earls Earls (2002): random drug testing(2002): random drug testing

But during warBut during war Ex Parte Milligan Ex Parte Milligan (1866): habeas corpus(1866): habeas corpus Hamdi Hamdi v. v. Rumsfeld Rumsfeld (2004): “enemy (2004): “enemy

combatants”combatants” Unless you’re not whiteUnless you’re not white

KorematsuKorematsu v. v. United StatesUnited States (1944) (1944) WiretappingWiretapping

KatzKatz v. v. USUS (1967): overturns (1967): overturns OlmsteadOlmstead 44thth protects “persons, not just places” protects “persons, not just places”

Privacy?Privacy? Sheppard Sheppard v. v. MaxwellMaxwell (1966): press freedom vs. (1966): press freedom vs.

rights of accusedrights of accused GriswoldGriswold v. v. ConnecticutConnecticut (1965): right to (1965): right to

contraceptives (14contraceptives (14thth)) RoeRoe v. v. WadeWade (1973) (1973) Planned Parenthood of Southeastern PennsylvaniaPlanned Parenthood of Southeastern Pennsylvania

v. v. CaseyCasey (1992): “reasonable limits” w/o imposing (1992): “reasonable limits” w/o imposing “undue burden”“undue burden” Should a married woman have to inform her husband? Should a married woman have to inform her husband?

No (but minors must notify parents)No (but minors must notify parents) GonzalesGonzales v. v. Carhart Carhart (2007): Partial-birth abortion and (2007): Partial-birth abortion and

Anthony Kennedy: "While we find no reliable data to Anthony Kennedy: "While we find no reliable data to measure the phenomenon, it seems unexceptionable to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to conclude some women come to regret their choice to abort the infant life they once created and sustained." abort the infant life they once created and sustained." That regret might later cause "severe depression and loss That regret might later cause "severe depression and loss of esteem." of esteem."

Keep your mouth shutKeep your mouth shut

MirandaMiranda v. v. ArizonaArizona (1966): 1) right to (1966): 1) right to remain silent (5remain silent (5thth), 2) anything you say can ), 2) anything you say can and will be used against you in court, 3) and will be used against you in court, 3) you have the right to an attorney (you have the right to an attorney (Powell Powell v. v. AlabamaAlabama (1932): Scottsboro Boys), 4) if (1932): Scottsboro Boys), 4) if you can’t afford an attorney one will be you can’t afford an attorney one will be appointed to you (appointed to you (GideonGideon v. v. WainwrightWainwright (1963)(1963),, [5) you can stop questioning at [5) you can stop questioning at any time]any time]

Even if you’re a minor: Even if you’re a minor: In re GaultIn re Gault (1966) (1966)

Ok, so you were busted…Ok, so you were busted…

FurmanFurman v. v. Georgia Georgia (1972): death (1972): death penalty cruel penalty cruel in its applicationin its application

GreggGregg v. v. GeorgiaGeorgia (1976): two phases (1976): two phases required: trial then punishmentrequired: trial then punishment

Civil RightsCivil Rights

Primarily 14Primarily 14thth

Reasonable classification: some Reasonable classification: some discrimination necessarydiscrimination necessary

Rational basis: does the classification Rational basis: does the classification bear a reasonable relationship to the bear a reasonable relationship to the achievement of some proper achievement of some proper governmental purpose?governmental purpose?

Strict scrutiny: “compelling Strict scrutiny: “compelling governmental interest” justifies governmental interest” justifies distinctions drawndistinctions drawn

PlessyPlessy, , BrownBrown Williams Williams v.v. California California (2001) (2001)

LovingLoving v. v. VirginiaVirginia: interracial marriage (1967): interracial marriage (1967) Regents of the UCRegents of the UC v. v. BakkeBakke (1978): quotas out, but (1978): quotas out, but

race may be one of a number of factorsrace may be one of a number of factors Adarand ConstructorsAdarand Constructors v. v. PenaPena (1995): affirmative (1995): affirmative

action not benign, so must be “narrowly tailored” to action not benign, so must be “narrowly tailored” to overcome specific, clearly provable discriminationovercome specific, clearly provable discrimination

Grutter v. BollingerGrutter v. Bollinger and and Gratz v. BollingerGratz v. Bollinger (2003): (2003): AA (points) ok for law school, not for undergrad; AA (points) ok for law school, not for undergrad; diversity is a legitimate goal, but must be narrowly diversity is a legitimate goal, but must be narrowly tailoredtailored US Army sided w/AA—national security issueUS Army sided w/AA—national security issue

Lawrence Lawrence v. v. TexasTexas (2003): sodomy laws out (2003): sodomy laws out

Baker v. Carr (1962): “one man, one Baker v. Carr (1962): “one man, one vote” in redistrictingvote” in redistricting Texas 2003 redistricting case: (clearly) Texas 2003 redistricting case: (clearly)

partisan, racial impactpartisan, racial impact League of League of United Latin American Citizens v. PerryUnited Latin American Citizens v. Perry : : largely upheld, not unconstitutionally largely upheld, not unconstitutionally partisan, mid-decade redistrict fine, only partisan, mid-decade redistrict fine, only 1 district had to be redrawn1 district had to be redrawn