Transcript The Judicial Branch American Government UW-Green Bay

The Judicial Branch
American Government
UW-Green Bay
Film: Road to Supreme Court


Terms: amicus curiae, penumbras,
rule of four, Solicitor General, writ
of certiorari
What was the decision? Who were
the parties and what were their
strategies? How important was
public opinion? What was the role of
Justice O’Connor?
Next time:


Judicial assignment is due
Quick review of website
Quiz: True or False




Ten justices serve on the Supreme
Court.
Justices make policy.
The most serious cases are heard in
federal courts.
The Supreme Court hears about
250 cases per year.
Introduction


Unique branch of government
powerful or weak?
Powerful



Judicial review
Appointed for life
Expect judges to be objective and
to protect our civil liberties and
rights
Limits to power


STARE DECISIS: precedent
Rules of access and procedures


standing, justicable issue, jurisdiction
lack of self-activation
Personal philosophy towards role



judicial activism
judicial restraint
Strict constructionist
Power rests on legitimacy


“Ordered liberty”
role of public opinion (Webster
case)
Pro choice rally April 2004

Doug Mills/ New York Times
Doug Mills, New York Times
Organization of the U.S. court
system


51 routes to the U.S. Supreme
Court
little to do with the seriousness of
the case
Jurisdiction


Nature of the question of law:
federal or state law
Nature of the parties to the case

DIVERSITY OF CITIZENSHIP
U.S. Courts

District Courts: at least 1 per state


U.S. Court of Appeals:12 + 1
(regionally located) (fig. 10.2)




Questions of fact
Questions of process
Appeals from regulatory agencies
Usually panels of three judges,
sometimes en banc
U.S. Supreme Court
Bringing a case to the Supreme
Court

Less than five cases a year on
original jurisdiction



Questions between two states,
ambassadors
Less than 100 cases a year on
appeal (out of 100 million)
most are based on a writ of
certiorari
“Substantial federal question”






Rule of Four
conflicting decisions between courts
power of supervision
conflict with precedent
constitutional question
request of Solicitor General
Supreme Court


Sits from October to June
Issues opinions (majority,
concurring, dissenting)
Food for thought:



Today’s Supreme Court has 8
justices over 60 years old; 2 over
80
7 appointed by Republican
presidents
2 women

President will nominate one or more
justices—why the filibuster issue is
so important

Final exam May 10 at 1:00




Chapters 5,7,8,9,10
Review with Steve May 5 at 12:30
in MAC 233
In-class review on Thursday
Supreme Court cases: issue?
Decision? (if available)
Figuring out your grade





Exam 1, 2, 3 (23 percent each)
Forum memo/attendance (10
percent)
Two optional papers (5 percent
each)
Judicial assignment (11 percent)
(72 x.23)+(65 x.23)+(88 x.10)+(85
x.05)+(87 x.05)+(82 x.11)
Civil Liberties and Civil Rights
Introduction

Civil liberties: negative restraints on
government



freedom v. order
freedom of speech, press, religion
Civil rights: what government must
do


rights guaranteed to individuals
freedom v. equality
Civil liberties



most people agree that liberties can
be restrained
issue becomes who puts limits on
our liberties and how many limits
are acceptable
how much freedom are YOU willing
to give up?
Should government restrain...





a communist from teaching in
college?
in high school?
the distribution of a pamphlet to
overthrow the government?
a demonstration against the
bombing in Iraq?
a KKK organization on campus?
how about...




burning the American flag?
prayer in schools?
your neighbor broadcasting music
at 3:00 a.m.?
yelling “fire” in the theater during
the opening day of Star Wars?


Freedom to believe what we want is
absolute; freedom to act on those
beliefs must be reconciled with
social order: thoughts, words,
action
castles and sand castles
Influences on civil liberties and
rights



new social experiences or events
(treason laws during times of war)
composition of the Supreme Court
change in public perspectives
Three constitutional “revolutions”



nationalization of the Bill of Rights
(selective incorporation doctrine)
expansion of the scope of civil
liberties
development of civil rights
14th Amendment (1868)

No state shall make or enforce any
law which shall abridge the
privileges or immunities of citizens
of the United States; nor shall any
state deprive any person of life,
liberty or property without due
process of law; nor deny any person
equal protection of the laws
Why is the 14th amendment
important?



Barron v. Baltimore (1833)
Since 14th, the Supreme Court has
incorporated the Bill of Rights to
state actions through the due
process and equal protection
clause
incorporation has been by one
phrase at a time (selective
incorporation)

Name the five protections given to
citizens in the first amendment
First amendment principles




Affirms the freedom of the
individual
Free expression is the foundation of
democracy
When rights collide, government
must balance them
Help us make choices with
knowledge
Selective incorporation begins with first
amendment



Fundamental guarantees
Gitlow v. NY (1925): first case
where freedom of speech
protections applied to state action
Near v. Minnesota (1931): first
case where state law was held
unconstitutional (press)
Palko v. CT (1937)



reinforced selective incorporation
Honor roll of rights: fundamental
rights
today, most of the Bill of Rights
applies to state actions
Freedom of speech and of the
press


not absolute, but marketplace of
ideas
advocacy of ideas must be linked to
lawless action
Types of restrictions




inciteful speech: sedition
slander and libel
obscenity
prior restraint
Paying for free speech?

Board of Regents v. Southworth



Wisconsin case
Southworth objected to fees that
supported liberal groups
Unanimous decision for university
Restrictions on a college campus 2004

Didn’t know I was Un-American
Inciteful speech




sedition laws
“bad tendency”; “clear and present
danger”; “direct incitement”
Consideration of time, place and
manner
Texas v. Johnson: symbolic speech
Slander and libel




slander: untrue spoken statement
that defames a person’s character
libel: (written)
NY Times v. Sullivan (1964)
requires proof of actual malice
Obscenity




Miller v. CA (1973)
patently offensive sexual conduct
work lacks any serious literary,
artistic, political or scientific value
“reasonable person”/contemporary,
community standards
Prior Restraint


censorship: prohibiting something
from being published
Near v. MN
Freedom of religion


“wall of separation” between church
and state
at the core of our personal being
The establishment clause prohibits



government sponsorship of religion
government financial support of
religion
government’s active involvement in
religious activity
Lemon v. Kurtzman (1971)



1. secular purpose?
2. neither inhibits nor advances
religion?
3. excessive entanglement in
religion?
Free exercise clause


ability to practice religion freely
freedom v. order tensions
Due process and criminal justice



substantive due process
procedural due process
4th, 5th, 6th and 8th amendments
Fourth amendment


unreasonable searches and seizures
without a warrant, police can search




person arrested
things in plain view of the accused
places/things in the person’s immediate
control
anything if given permission (OH v.
Robinette, 1997)
Mapp v. Ohio (1961)



exclusionary rule applied to states
prohibits use of improperly seized
evidence at a trial
Since Mapp, “good faith exception”
Fifth amendment


protection from self-incrimination
Miranda v. Arizona (1966)

Miranda rights
Sixth amendment



right to counsel
Gideon v. Wainwright (1963)
applied 6th amendment to state
felony cases
Eighth amendment



cruel and unusual punishment
death penalty: sand castle
uneven imposition/ racial or income
levels not unconstitutional
Food for thought...



do you think that it is okay for
police to search your car if they ask
permission?
should we be concerned about the
uneven use of the death penalty
among states?
what would you do if you were
arrested for a crime you didn’t
commit and had no money for a
lawyer?