Transcript Slide 1

The H__________
______________:
President Puts Turkey’s
Fate in Twitter’s Hands
Extra Credit 3rd period:
(1) The who is portrayed in the cartoon? (2) What is his official position?
(2) What is the last name of the historical person alluded to in the cartoon?
Federal vs. State Courts
Federal Courts
State Courts
U.S. Supreme Court
State Supreme Court
U.S. Court of Appeals
Intermediate
Appellate Courts
U.S. District Courts
Trial Courts
of General Jurisdiction
Magistrate Courts
Lower Courts
Dual court system
• State 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 Amendment
– Federal-question cases: involving U.S. Constitution, federal law,
treaties
– Diversity cases: involving different states, or citizens of different states
• Some cases can be tried in either court.
The 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.
Constitution's grant of ORIGINAL
JURISDICTION:
ARTICLE III, SECTION 2
...... In
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
jurisdiction
In 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.
Before 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.
http://www.uscourts.gov/FederalCourts/Un
derstandingtheFederalCourts/Jurisdiction.a
spx
CLAPPER v. AMNESTY INTERNATIONAL USA
Term: 2010-20192012
Location: District Court for the Southern District of New York
Facts 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?
RULING:
http://www.oyez.org/cases/2010-2019/2012/2012_11_1025
Justiciable Disputes
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);
.
Article III
The 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.
RUBRIC for 1996 Question on Pres appts:
(a) 2 Patterns:
• Increase in number of ind; (no credit for ind party)
• dems appt dems; Rs appt Rs
• Inds rarely appt
(b) POLITICAL Factors—must explain how it is political
• Sen Courtesy
• Litmus test for issues
• Diversity (make it political)
• Partisanship
• Patronage
• Ideology (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
(RUBRIC for 97Question on court activism and ideology
(a) pattern:
• variation in activism
• Cyclical pattern
• Very few laws decl unC
(b) Activism can be lib or conserv—this is the ONLY ok anser
(c) Other Factor : EXPLAIN with eg
Cases or opp presented to ct (did you listen to Mr Marsh? . . .
“impacted by current events”)
Nature of times
Increased legislation
Judicial 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
Common 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.
Key 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.
3 POWERS OF federal courts
Judicial review
The
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.
Power of Statutory
Construction
Power to overturn
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
Obama and CJ Roberts at the 2nd swearing in
http://www.youtube.com/watch?v=274_VdeckAU
http://www.youtube.com/watch?v=1gpeoZDmOgU
The Process
http://www.oyez.org/cases/20002009/2003/2003_02_1624
The 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.
Organization of the Courts
the “rule of 4”?
Access to and Decision
Making in the U.S. Supreme Court
The 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.“
Versus “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."
What is the correlation between ideology and original vs
contemporary meaning?
Contrast that to Judicial Activism vs Judicial Restraint
Judicial activism: the philosophy that courts should take an active role in solving social,
economical and political problems
Judicial 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
institutions
Both liberals and conservatives accuse the court of judicial activism
An activist court that was
Conservative
SEE THIS
http://www.nytimes.com/interactive/2010/07/25/weekinreview/2009
0725_supremecourt_pano.html?ref=us
And this http://www.nytimes.com/interactive/2010/07/25/us/scotusquiz.html?ref=supreme_court
Listen to: capital steps: life term
https://www.youtube.com/watch?v=FYD-HrJtPfI
Three ways a case can Reach the
Supreme Court
Original jurisdiction
Through an appeal from a state supreme court
Through an appeal from a federal appellate court
The selection of Judges
Elite Recruitment: The Process of Nominating Federal
Judges/Justices:
See this “easy guide”
http://www.americanprogress.org/issues/civilliberties/news/2012/11/08/43443/infographic-an-easy-guide-to-federal-judicialnominations/
And from the SJC: http://www.judiciary.senate.gov/nominations/judicial.cfm
Factors affecting selection of federal judges
Senatorial courtesy (not for Supreme Court!)--gives senators from a
nominee's home state virtual veto
Senate judiciary committee “the gatekeeper” screen the nominees and sends
a recommendation to Senate floor for approval or rejection
Senate: 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 party
Race--and gender
Ideology: 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 case
age--since it is for life, will outlast president's term
ABA rating—Bush ends
What 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.
Whole process of nomination becoming much more contentious-"borking*" is on the rise
1.
During divided govt event slower
2.
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
obstructing
4.
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 14
In 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.
For Obama, a Record on Diversity but Delays on
Judicial Confirmations
By JOHN SCHWARTZ
Published: August 6, 2011
The 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 percent
African-Americans
Obama: 20 of 97; 21 percent
Bush: 23 of 322; 7 percent
Clinton: 61 of 372; 16 percent
Hispanics
Obama: 11 of 97; 11 percent
Bush: 29 of 322; 9 percent
Clinton: 25 of 372; 7 percent
Asian-Americans
Obama: 7 of 97; 7 percent
Bush: 4 of 322; 1 percent
Clinton: 5 of 372; 1 percent
Limits on the Courts
Nature of Courts: standing, no enforcement, Principle of stare decicis, moot
questions, political Questions
Limits 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 selfgovernment "in which the laws of
Georgia can have no force
The 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."
Limits 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.
Stare Decicis explained
http://www.youtube.com/watch?v=d2K2d01l3vg
Limits 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
Court
USA October 2005
Limits 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
A cartoon, captioned “To
Furnish the
Court Practical Assistance,” by
Elderman
in The Washington Post, Feb. 6,
1937
Limits on the Courts . . . continued
Public opinion—at least for Supreme Court
In support of Alito
Protesters marched in Washington Monday in an event
organized by abortion opponents. President Bush
addressed the crowd via telephone. NYT Jan 23, 2005
A 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 28 2008
.
Post WWII Courts: Warren 1953-1969 an
activist court that was . . .The most liberal court
Rights of defendants
•Brennon: “a civilization should be judged by the
treatment of its outsiders”
•used _____ _____clause of 14th amendment to
apply rights in B of Rights to states
Mapp v Ohio (exclusionary rule
applied to states)
Gideon
Escobedo (right to remain silent)
Miranda
Brown vs Board of Education 1954
First 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
Happy members of the group
that challenged New York's
daily prayer in Engel v Vitale.
Apportionment: Baker v Carr--tells states how to draw lines
Privacy: Griswold v. Connecticut-created from "penumbras“
Post WWII Courts . . . Continued
Burger court--69-86More conservative than Warren BUT had some significantly liberal
decisions: Nixon had 4 appointees--helped some but pres. always get
surprises
Defendant'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
When Associate Justice Sandra Day O’Connor took
employed a quota for
her seat on the Burger Court in 1981, she was the
minorities was ok as a
first woman to serve on the Supreme Court of the
means to rectify past
United States. She retired on January 31, 2006
discrimination
Limits on exec: U.S. v Nixon--unanimous no exec. priv in
criminal case
Free speech: Buckly v Valheo
Women's issues: Reed--fist time unconstitutional because of
gender (probate giving male preference as administrator);
Craig v Boren (drink age) medium scrutiny
Abortion: Roe v. Wade 1973
Post WWII Courts . . . continued
Rehnquist court –1986-2006
states rights
stuck 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 act
• ADA when used by state employees:
University of Alabama v. Garrett barred state
employees form using the provision of the ADA.
Morrison
Morrison
How? 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
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
Rehnquist 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)
Rehnquist Continued:
Abortion rights
Casey changes
strict scrutiny to
undue burden
Webster no
funds ok, Rust-gag rule ok
Affirmative 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;
Rehnquist 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
decision
Rosenberger 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,
it
Rehnquist 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
The ROBERTS court
In Steps Big and Small, Supreme
Court Moved Right June 30, 2007
The Roberts court
The 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.)
Brendan 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
A 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.
How judges are selected in states
November 3, 2010
Ouster of Iowa Judges Sends Signal to Bench
By A. G. SULZBERGER
DES 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.”
The Rule of Law
Criminal
Civil
Who Files
Government
Private person/entity
Purpose
Punishment
Money/injunction
What must be proved
A crime has been committed by
the defendant
Duty/Breach of that duty
Proof required to win
Guilty Beyond Reasonable Doubt
> 95%
Preponderance of Evidence > 50%
Bill of Rights
Limits conduct of government
officials
Does not apply
Lawyers
Government Prosecutor/Private
Attorney/Public Defender
Own lawyer(s) for each side
If trial by jury
Usually unanimous vote
Usually non-unanimous vote
Defendant’s presence
in court
Required with exceptions
Not required
Testimony
Cannot be forced to testify
Can be forced to testify
Appeal
Defendant can appeal
Either side can appeal
Something else to remember about the
Federal Courts:
They exercise BOTH judicial review
AND statutory construction
Statutory Construction : The process by which
courts interpret the meaning of statutes, or the actual
process or act of interpreting a statute’s meaning
More 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.
The Majority
The 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.
The Courts Relations with other institutions: