Unit 5 Final Review
The Judicial Branch, Civil Rights and
Civil Liberties
What do Federal Courts Do?
• Federal courts are responsible for interpreting
and settling disputes arising from federal laws
• State courts handle state laws
• Most acts involve state laws
• It is possible for one act to violate both
(trading drugs, tax evasion)
Structure & Jurisdiction
• Federal District Courts:
– 91 courts of original jurisdiction (trial courts that determine guilt or
not)
– Decide both civil and criminal matters
• Circuit Courts of Appeals
– 13 courts of appellate jurisdiction (hear cases on appeal when an error
in law occurs)
– Someone must claim a federal constitutional right has been violated
– Decide issues of law not fact
– Panels of appointed judges decide; no juries
• Supreme Court
– Court of last resort
– Has original AND appellate jurisdiction (mostly hears appeals)
– Nine appointed justices (including the Chief Justice)
Politics of the Judiciary
• Judges and Justices (Supreme Court only) are
appointed for life by President
• All must be confirmed by Senate (Senate
Judiciary Committee interviews)
• Nominees share ideology of President
• Abortion rights, school prayer, affirmative action
are all hot-button issues
• Senatorial Courtesy: Senators in a state where an
appointee will sit have traditionally submitted a
list of names to the P from which he chooses
Politics of the Judiciary
• Judicial Restraint- Judges who are reluctant to
overturn the acts of a legislature are said to
practice judicial restraint
• Judicial Activism- Judges who have no qualms
about overturning a legislative action are
considered activist
– Liberals often see judges as constitutional
interpreters who should reflect current values; are
considered activist for this reason
How a Case Reaches the
Supreme Court
• Custom and tradition have determined this
process NOT the Constitution
• Rule of Four-If four of the nine justices agree to
review the lower court’s decision, they grant a
writ of certiorari (a legal document used to
request the lower court transcripts)
• The legal question must be justiciable—involve an
actual legal dispute (not a political one)
• Standing- The petitioner must have a real interest
in the outcome of the case
Judicial Review
• Not expressly granted the Supreme Court in
the Constitution
• The right to judge the constitutionality of laws
and actions of the government
• Established in Marbury v. Madison, 1803.
• John Marshall was justice at this time; he was
a Federalist who worked to increase the
powers of the federal government over states
The Marshall Court
• Fletcher v. Peck, 1810
– The first case in which the Court overturned a state law on
constitutional grounds
• McCulloch v. Maryland, 1819
– States cannot tax tax the national bank
– Reinforced the Supremacy Clause of the Const.
– Upheld idea of implied powers of national gov’t
• Gibbons v. Ogden, 1824
– Increased federal power over states by defining commerce
broadly and implying that anything concerning interstate
trade could be regulated by federal gov’t
Key Terms
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Original / appellate jurisdiction
Senatorial courtesy
Judicial restraint / activism
Marbury v. Madison / McCulloch v. Maryland
Writ of Cert / Rule of Four
Justiciable / standing
How to Discuss a Court Case
• Don’t give background case narrative
• Do explain
– The essential legal questions and reasoning of the
court in its decision
– The case’s consequences / impact on government
and society (i.e. Marbury = power of judicial
review)
– What was the consequence of Heart of Atlanta
Hotel v. U.S.?
Civil Rights v. Liberties
• Civil Rights
– Protections from discrimination based on race,
gender or other minority status
• Civil Liberties
– Protections of citizens from the abuse of
government power
History of Civil Liberties
• BOR only protects Americans from the federal
government
• It wasn’t until the 14th Amendment and the
actions of the Supreme Court that freedoms
were selectively incorporated to apply to
states
• Gitlow v. NY, 1925 was first time SC ruled that
state limits on speech and press could not
exceed limits allowed the nat’l gov’t
Selective Incorporation
• The Court has applied the BOR to state law on
a case-by-case basis.
• The following rights have NOT yet been
incorporated
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2nd Amendment right to bear arms
3rd Amendment protection against quartering soldiers
5th Amendment right to indictment by a grand jury
7th Amendment right to a jury trial in civil cases
8th Amendment protection against excessive bail
First Amendment Rights: Speech
• Unprotected speech: obscenity, slander, libel or
speech that sparks violence
• Clear and Present Danger Test (Schenck v. US,
1919)
• Preferred Position Doctrine, 1940’s
– Freedom of speech fundamental to liberty, thus any
limits must address severe, imminent threats to the
nation
– Court will protect offensive but nonthreatening
speech
1st Amendment Rights: Press
• Courts must weigh the need to be informed versus
security concerns
• The preferred position doctrine applies
• Prior restraint:
– Preventing publication / censoring
– Is rarely constitutional (Pentagon Papers, i.e.)
• Obscenity: Miller v. California, 1973
– Use average person & community standards to judge
– Does the work lack value (artistic, literary, scientific)?
– Does the work depict sexual behavior in an offensive
manner?
1st Amendment:
Freedom of Assembly & Association
• Does not extend to violent groups or to
demonstrations that incite violence
• Reasonable restrictions, if applied to all
groups, are acceptable
• Gatherings must not disrupt daily life
1st Amendment: Freedom of Religion
• Establishment Clause:
– Gov’t may NOT require religious observation
– Has been used to prevent school prayer, public
nativity scenes, bans on teaching evolution
– Court has allowed subsidies for textbooks, lunches
and buses at religious schools
• Free exercise clause:
– Gov’t may NOT prevent individuals from practicing
their faith
– This is not absolute (no human sacrifice, polygamy,
denial of medical treatment…)
1st Amendment: Religion
• In deciding whether a law violates the
establishment clause, the court uses …
• The Lemon Test (Lemon v. Kurtzman, 1971)
– Does the law have a secular, rather than religious,
purpose?
– Does the law neither promote nor discourage
religion?
– Does the law avoid “excessive entanglement” of
the government and religious institutions?
Rights of the Accused
• Fundamental protection against government
abuse of power
• Many are found in the 5th Amendment
• The 1960’s Warren Court (Chief Justice Earl
Warren) greatly expanded protections for the
accused
• The Rehnquist Court (mid 1980s til 2005)
limited these expansions
4th Amendment
• Limits power of the government to search for
evidence of criminal activity (search and seizure)
• Police must have probable cause and convince a
judge to issue a warrant
• Evidence found illegally by police is excluded in
trial (Exclusionary Rule)
• This was established in Mapp v. Ohio, 1961
• There are some exceptions to warrant
requirement (plain view, consent, when safety is
a concern)
5th Amendment
• Protection from self-incrimination
• Defendant cannot be forced to testify at trial
• Miranda v. Arizona, 1966
– Defendant must be notified of his right to remain
silent, his right to a lawyer, and his protection
from self-incrimination
– Court decided Miranda was deprived his 14th
Amendment right to due process and threw out
his confession since he was read his rights
6th Amendment
• Guarantees defendants the right to an
attorney in federal criminal cases.
• This was incorporated to states via 14th
Amendment due process clause in case
Gideon v. Wainwright, 1963
• Also Right to a Speedy Trial (100 day limit
from arrest to trial)
8th Amendment
• Forbids Cruel and Unusual Punishment
• Is the death penalty?
• Court has placed limits on the death penalty but
acknowledged that it is constitutional
– Furman v. Georgia, 1972- Court halted death penalty
until it became less arbitrary (racist)
– Gregg v. Georgia, 1976- With adequate rules, the
death penalty resumes
– Atkins v. Virginia, 2002-mentally retarded cannot be
executed
Right to Privacy
• Not specifically mentioned in Constitution
• Griswold v. Connecticut, 1965- Court ruled BOR
contained an implied right to privacy
– A combination of the 1st, 3rd, 4th, 5th, 9th and 14th
Amendments added up to this right to privacy
• Roe v. Wade, 1973 –
– Legalized abortion based on a woman’s right to
privacy; established national guidelines for abortions
– Is really a subset of Griswold decision
Civil Rights and African Americans
• Prior to the Civil War, most blacks were slaves with
virtually no legal rights
• Free blacks also denied basic civil rights (voting, equal
protection)
• 13th Amendment ended slavery
• 14th Amendment
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Designed to prevent states from mistreating freed blacks
Provided citizenship for former slaves
Has due process and equal protection clauses
At first was narrowly interpreted; later used by Court to
apply BOR to states
Civil Rights and African Americans
• 15th Amendment- Universal male suffrage;
banned laws that would prevent blacks from
voting
• Jim Crow laws and voting restrictions- Court
upheld discriminatory laws in South; didn’t
enforce amendments
• 24th Amendment ended poll taxes
Civil Rights Acts
• Civil Rights Act, 1964 –
– Increased the rights of blacks and other minorities
– Gave federal gov’t greater means to enforce laws
– Banned discrimination in public accommodations
– Prohibited discrimination in hiring based on race
and gender
– Required gov’t to end funding for any program
that didn’t comply with law
– Serious consequences for states that ignored laws
Voting Rights Act, 1965
• Designed to address voting discrimination in
South
• Allowed fed gov’t to step into any state where
less than 50% of state was registered to vote
• Prevented literacy tests
Civil Rights Today
• Segregation is still a challenge today
• De facto segregation describes the divides
between races that exist today despite laws to
end it; neighborhoods and schools
• De jure segregation was segregation by law;
now illegal
Affirmative Action
• Programs aimed at changing the
discrimination that continues in employment,
housing and higher education
• Seek to create opportunities for minorities but
are controversial and politically unpopular
• Regents UC Davis v. Bakke, 1978 case –
Reverse discrimination; ended quotas
Civil Rights and Women
• Received right to vote 19th Amendment in
1920
• Employment discrimination based on gender
outlawed by Civil Rights Act, 1964
• Title IX, 1972 prohibits gender discrimination
in higher education (sports)
• Sexual harassment is forbidden
Other Major Civil Rights Advances
• Americans with Disabilities Act, 1990
– Requires businesses with more than 24 employees
to make offices accessible to disabled
– Requires public places be accessible whenever
possible