Friday March 21, 2014
• OBJ: SWBAT demonstrate their knowledge of
how cases make it to the Supreme Court
• Drill: Why do Supreme Court Justices
Friday March 21, 2014
• OBJ: SWBAT
demonstrate their
knowledge of how
cases make it to the
Supreme Court
• What is taking place
here? What does this
say about the Supreme
Court?
• HW: Reading quiz on
granting Certiorari (on
my website)
Review Quiz #17
Name five inside strategies used by interest groups
–Lobbying Congress, testifying at hearings, writing legislation, filing
amicus briefs, lobbying bureaucratic offices, writing and
distributing reports to elected officials, issuing report cards, sharing
information, fact-finding tours, campaign contributions via PACs
Name two public policy targets for interest groups
–Local/state/federal legislative, executive, or judicial branches
Define/explain a political action committee
–The part of an interest group that raises and donates money to
political candidates
14th Amendment Cases
• You have ten minutes to find the cases that
you are missing and finish your chart.
• Which case do you think most strongly
protected 14th Amendment rights? Explain.
How does a Writ of Certiorari (cert)
work? When are they generally
granted?
• OBJ: SWBAT understand
the criteria in which
cases are judged to be
heard by the Supreme
Court.
Drill: What does this
say about healthcare
and the Supreme
Court?
• HW: Work on your
vocab
Reading Quiz
• What does writ of certiorari mean?
• How has it become more difficult to have a
case tried by the Supreme Court?
• List and describe 2 of the 7 Criteria for judging
a case uncertworthy.
• List and explain 2 of the four criteria for
judging a case “certworthy”
Review Quiz #18
Define/explain what an amicus brief is
–“Friend of the court” brief filed by an interest group to help
persuade the court to issue a writ of certiorari to hear a case
Define/explain how an interest group uses litigation
–An interest group adopts a case where someone is suing so that
the court system can help set precedent regarding public policy
Define/describe what is meant by the revolving door
problem
–Someone leaves government work for the private sector, then
lobbies their former government job as a representative of the
private sector.
Down the Yellow Brick Road: Getting a Case into
and Through the Supreme Court
1. Where do cases come from?
Original Jurisdiction (7%) (As defined by the Constitution)
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–
–
–
–
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Cases involving Ambassadors
Cases involving the United States government and
one state
Cases involving two or more states
Cases between one state and citizens of another state
Cases between a state and a foreign country
Appellate Jurisdiction (90%)
– 65% from Federal Court of Appeals
– 33% from State Courts of last resort
2. Granting or Denying a Writ of Certiorari
– Cert pool, a reduced number of cases from those
applied,
– determined by clerks
Rule of Four-4 members must agree to hear the case
– Factors Common to Cases granted a Writ
•
•
•
•
•
•
•
•
•
Cases where the Solicitor Generals has signed on are
taken over 70% of the time
Chances increase when two lower courts disagree
Heavy interest group involvement through Amicus Briefs:
Make arguments for and against a case
Heavy number indicates large interest from the public
Case involves Civil rights of civil liberties issues
# issued has declined
# of appeals has increased
You Be The Judge
• You will look at three cases.
• You need to decide if each is “Cert Worthy”
and explain why.
• Choose one case of the three.
• In your groups come up with an argument for
the defense, and for the prosecution.
• What would be your preliminary decision?
Case #1
Thomas Johnson was convicted in 1987 for the murder of a Dallas police officer.
The murder occurred when Officer Andre Malcolm was attempting to arrest
Johnson for the beating of his girlfriend. Johnson was found guilty by a Dallas
jury and sentenced to die by lethal injection.
Johnson’s lawyers appealed the case on the grounds that the death penalty was
unconstitutional because it violated the 8th Amendment’s protections against
“cruel and unusual punishment.” The lawyers for the state of Texas countered
that Texas’ death penalty was consistent with the Supreme Court’s decision in
the 1976 case of Gregg v. Georgia. In this case the court held that “the
punishment of death does not invariably violate the Constitution.” The Texas
Court of Appeals and the Texas Supreme Court both upheld the conviction and
Death sentence of Thomas Johnson.
Johnson’s legal team appealed to the United States District Court where his
conviction was also upheld. On appeal to the Supreme Court, from the Federal
Court of Appeals, two amicus briefs were filed. One is from the Police
Association and the other from 27 different state Attorney Generals. All of the
briefs filed are in support of the original conviction and sentence administered
to Thomas Johnson in 1987.
Case #2
On November 11, 1983, 25 year old Nancy Beth Cruzan lost control of her automobile
on a road in Jasper County, Missouri. The injuries she suffered in the crash deprived her
brain of oxygen for at least 12 minutes and left her medically brain dead. She now lies
in what doctors term a “persistent vegetative state. Her life is sustained only because
she is fed through tubes and doctors hold no hope that she will ever improve.
Ten months after the accident, Nancy’s parents asked hospital personnel to remove the
feeding tubes so that their daughter could be allowed to die. The state hospital that
treated Nancy refused to do so without permission from the courts. The Cruzan’s then
sued the Missouri state Department of Health and asked a state trial court to grant
permission to remove the life support tubes.
Agreeing with the Cruzan’s the court ruled that under both state and federal
Constitutions Nancy had the right to refuse life-sustaining measures. As she was
incapable of exercising her rights her parents could exercise it for her. The health
department appealed the ruling to the Missouri State Supreme Court. This court ruled
in favor of the state and said in life or death situations Missouri law demanded
convincing and reliable evidence of a person’s wish to refuse treatment. Without such
evidence no person, not even a parent, could presume to make the choice of life or
death. This requirement held that even though the patient was brain dead and in no
way capable of making a decision for herself. The Cruzan’s appealed the Missouri
decision to the United States Supreme Court
This case presents the first opportunity to rule on the question of the right to die and
its relationship to privacy. Thirty Amicus briefs have been filed with the preponderance
of briefs asking the court to hear the case. In addition, the Solicitor General of the
United States has submitted a brief supporting the granting of certiorari.
Case #3
Reno Garber was sentenced to 100 years to life plus 11 years for his third violation under
California’s “Three-strikes law.” He was arrested for discharging a firearm, possessing a
weapon illegally, and directing threats at police officers. This was his third felony arrest,
the others for armed robbery, terrorizing his sister and a female neighbor with a
weapon, and the possession of methamphetamines, and thus he was found guilty and
assigned the maximum sentence.
California Department of Parole rules forbid conjugal visits for inmates serving life
sentences without parole. Given the length of Reno’s sentence he is not scheduled to
ever be eligible for parole and thus has been denied the opportunity to engage in
sexual intercourse with his wife. Reno and his wife desire to have a child and have
petitioned for the right to allow Reno to donate sperm to his wife so that she can be
artificially inseminated. The couple has promised to pay all costs associated with the
project.
Reno’s lawyers argue that the Supreme Court’s decision in the 1987 case of Turner v.
Stanley held that “procreation is a liberty interest protected by the United States
Constitution,” and that “Prison walls do not form a barrier separating prison inmates
from the protections of the Constitution” protects their clients right to offer his sperm
to his wife. Staying consistent with the state court of California decisions the United
States District Court rejected Reno’s plea. The Judges stated that, “many aspects of
marriage make it a basic civil right…but are superseded by the fact of confinement.
Artificial insemination as a method of begetting a child, falls within the realm of
unavailable incidents of marriage.” Garber’s appeal was denied.
Reno’s lawyers have appealed the case to the United States Supreme Court. No Amicus
briefs have been filed in the case.
3. Legal Briefs (Not Boxers) Filed
– Filed by both sides with the Court
– Contain legal arguments for each side
4. Oral arguments
– 30 minute time limit for each side including questions from the justices
– Special Interest can be granted time to argue
5. Judicial Conference
– Discussion in descending order
– Present feelings regarding the case
6. Lobbying within the Court
– Attempts to persuade the decisions of other justices
– Voting blocs develop
7. Opinions Issued
–
–
–
–
Majority
Concurring
Plurality
Dissenting
Representing the State of Missouri
• Privacy does not exist
• Invented by an activist court
• Our opposition is based on the dissenting opinions
found in the Griswold case and the majority opinion in
the Hardwick case
• The 10th Amendment
• Absent a federal statute, the issue belongs to the states
to determine
• All precedent from the lower courts has upheld the right
to die, but has reserved the decision and the creation of
criteria to the states.
Representing the Cruzan’s
• Griswold and Roe have created a “zone of
privacy”
• 1st, 3rd, 4th, 5th, 9th, and 14th Amendments support
this zone
• This case is consistent with the majority opinions
in Roe and Griswold
• The federal right to privacy should be expanded t
include the right to die
Representing the Cruzan’s
• Lower court precedents provide guidance:
– 1975
– Karen Ann Quinlan
– NJ Supreme Court upholds the rights of her
parents to remove her from life support
– Argued the right existed within the zone of privacy
Bouvia v. Superior Court
– “The right to die is an integral part of our right to
control our own destinies so long as the rights of
others are not affected”
Option 1: Reverse the Missouri court’s decision. Grant the Cruzan’s request to allow Nancy to die.
The Missouri Supreme Court has made a cruel decision that serves no purpose other than to continue the suffering of the Cruzan family. The state of Missouri has
nothing to gain from keeping Nancy Cruzan clinically alive when she is technically brain dead. In fact, given that Missouri is currently spending more than $130,000 per
year simply to see that an otherwise lifeless body keeps breathing, the state’s interests would be better served by taking Nancy off the life-support system.
The state is relying on an outdated concept of death. The world has changed. The medical community’s ability to keep vital bodily functions continuing long after
natural death would otherwise occur had upset and degraded the process of dying. Although many of these procedures are called “life supporting”, they actually are
“death prolonging.” Many people dependent on life support systems are not experiencing any quality of human life.
The Missouri court’s outdated stance is causing the Cruzan’s needless suffering. Nancy is gone; the family will never again be able to interact with her. Judge Lynn
Compton declared in the Bouvia case, “If there is a time when we ought to be able to get the government off our backs, it is when we face death- either by choice or
otherwise.”
Yet the Missouri court is butting into this profoundly personal moment, so much so that it will not even permit the parents the dignity of allowing their daughter to
die. The decision involved here may be painful, but it is one that only the family can make. Previous court decisions indicate that the courts recognize a person’s right
to refuse treatment. The Quinlan case has established that parents can assert the rights of their children in such tragic circumstances. Denying the right of the parents
to make this decision for their children undermines the importance of the family in society.
The American people understand the problems that modern life-supporting technology has presented concerning the right to die with dignity. Recent polls have
shown that about 80 percent of Americans now believe that there is nothing wrong with removing machines that keep the permanently vegetative humans alive.
Option 2: Uphold the Missouri court’s decision to deny the Cruzan’s request due to lack of clear evidence as to Nancy’s wishes.
While the courts have determined that people have a right to refuse medical treatment, this case presents a more difficult problem. Nancy Cruzan is in no condition to
make a decision to refuse treatment. In such a case, the question is, does anyone else have the right to refuse it for her?
The state of Missouri has adopted a law specifically to deal with this situation. The law says that in order for medical personnel to withhold treatment, there must be
clear and reliable evidence of the patient’s with to refuse medical treatment. That is a logical and humane solution to the problem. It guards against the possibility of
parents and others pulling the plug too soon on a person whom they, for various reasons, may not want to see live.
The Missouri law also releases parents and other family members from the awful burden of making a life-or-death decision that they may later regret. In times of
sudden tragedy, shocked and grieving family members are in a poor frame of mind to make rational, intelligent decisions. The state has a compelling interest in
protecting patients from the consequences of ill-advised decisions that would kill them.
Furthermore, whether you agree with the Missouri law or not, it is the law. It has come about through the legitimate legal processes set up by the people of that
state. Since the law violates no specific constitutional right, the Court has no business interfering with the legislative process. The Supreme Court of the United States should stand aside and respect
the right of each state to govern itself.
Option 3: Uphold the Missouri court’s principle of requiring clear and reliable evidence, but reverse its ruling in the
Cruzan case.
For all the reasons cited in Option 2, the Court should respect the Missouri law that requires clear evidence of a patient’s wishes before allowing anyone, parents
included, to make medical life-or-death decisions for them. But in this case, the Cruzan’s meet that requirement.
First, one of Nancy’s friends testified in the Missouri court that Nancy had expressed her wishes for just such a situation. According to this friend, Nancy had once told
her that she would not want to live if she could not have a fairly normal life.
Second, the lower courts have not disputed the contention that the Cruzan’s are a caring, loving family. The parents would not do anything that they felt in their
hearts was not in their daughter’s best interests. Who better than they know the mind and heart of their daughter?
Option 4: Uphold the Missouri court’s decision to deny the Cruzan’s’ request and forbid the withholding of life-preserving
medical treatment in all cases.
The government has a strong interest in upholding the sanctity of life. Once you start backing away from this principle, you erode society’s respect for life. The result
will lead to all kinds of legal and moral problems.
For example, society does not consider suicide an acceptable course of action. Where do you draw the line between refusing life-sustaining treatment and committing
suicide? How close do you want to get to a situation in which medical professionals, who are sworn to protect life, begin helping people commit suicide? The possible
abuses of such a situation foreshadow disastrous consequences, especially for the disabled elderly, whom society might consider as no longer useful.
The wishes of an individual who is incapacitated by an accident or disease can never really be known. People may think they know what course of action someone
would prefer in a catastrophe, but no one knows for sure until an emergency happens. Circumstances may change. Medical advances may make possible recovery
beyond what anyone ever expected; miraculous recoveries do occur. The fact that some individuals are incapacitated prevents them from reevaluating their situation.
3. Legal Briefs (Not Boxers) Filed
– Filed by both sides with the Court
– Contain legal arguments for each side
4. Oral arguments
– 30 minute time limit for each side including questions from the justices
– Special Interest can be granted time to argue
5. Judicial Conference
– Discussion in descending order
– Present feelings regarding the case
6. Lobbying within the Court
– Attempts to persuade the decisions of other justices
– Voting blocs develop
7. Opinions Issued
–
–
–
–
Majority
Concurring
Plurality
Dissenting
It is permissible for Missouri…to apply a clear and convincing
evidence standard, which is an appropriate standard when the
individual interests at stake are both particularly important and
more substantial than mere loss of money,. Here, Missouri has
a general interest in the protection and preservation of human
life, as well as other, more particular interests, at stake. It may
legitimately seek to safeguard the personal element of an
individual's choice between life and death. The State is also
entitled to guard against potential abuses by surrogates who
may not act to protect the patient. Similarly, it is entitled to
consider that a judicial proceeding regarding an incompetent's
wishes may not be adversarial, with the added guarantee of
accurate fact finding that the adversary process brings with it.
The State may also properly decline to make judgments about
the "quality" of a particular individual's life, and simply assert an
unqualified interest in the preservation of human life to be
weighed against the constitutionally protected interests of the
individual.
It is self-evident that these interests are more substantial, both
on an individual and societal level, than those involved in a
common civil dispute. The clear and convincing evidence
standard also serves as a societal judgment about how the risk
of error should be distributed between the litigants. Missouri
may permissibly place the increased risk of an erroneous
decision on those seeking to terminate life-sustaining
treatment. An erroneous decision not to terminate results in a
maintenance of the status quo, with at least the potential that a
wrong decision will eventually be corrected or its impact
mitigated by an event such as an advancement in medical
science or the patient's unexpected death. However, an
erroneous decision to withdraw such treatment is not
susceptible of correction. Although Missouri's proof requirement
may have frustrated the effectuation of Cruzan's not-fullyexpressed desires, the Constitution does not require general
rules to work flawlessly.
Wrap Up
• How did you decide the case?