• Test on Wednesday
• Have you ever done one of the text-book quizzes from the website? http://www.harding.edu/USER/lklein/WWW/
Thank You, Dr. Jack Shock
(To the tune of Jesus Loves Me)
• Breyer
• Ginsburg
• Kennedy
• Alito
• Roberts; he’s the chief
• Scalia
• Souter (spelled ou)
• Stevens
• Thomas, that’s our crew!
• Supreme Court Justices, Supreme Court Justices, Supreme Court Justices, they wear black
robes for YOU!
• Constitutional
– The Framework
– Article III; Supremacy Clause in Article XI
• Statutory
– (and Delegated Rulemaking Authority)
– The Judiciary Act of 1789
– Title 28 US Code
• Judicial
– COMMON LAW - That which derives its force and authority from the universal consent and immemorial practice of the people.
– Case Law/Precedent - Law established by subject matter heard in earlier cases. Binding on lower courts within the jurisdiction.
• The judicial practice by which the courts generally follow previous decisions involving the same issue.
(Wasserman)
• A judicial ruling that permits the court ruling settling an old case to govern the rule used to settle a similar new one
(G.Q. Wilson)

• Stare Decisis – to stand on decided cases; the judicial policy of following precedents established by past decisions.
(Schmidt)
• "It is emphatically the province and duty of the judicial department to say what the law is."
• — Chief Justice John Marshall
• The Birthright of Judicial Review
The irony:
– The landmark case for judicial review is based on a finding that the Supreme Court did not
CONSTITUTIONALLY possess a particular power
• (give a little, get a lot!)
• The Supreme Court has the power to decide what the constitution means.
• The Second National Bank and the state of Maryland
• Two elements:
• The Supremacy Clause
– Article 6, Clause 2
• (Judicial Review of STATE activities)
• the “Necessary and Proper” clause
– Article 1, Section 8, Clause 18
– (A handy-dandy expansion of federal powers)
United States Circuit Courts of Appeals
Eleven Geographic Districts, plus DC, plus one US court of Appeals for the Federal Circuit for a total of Thirteen Courts of Appeals
• Federal District Courts
• Courts of Original Jurisdiction
• Ninety Four Federal District Courts
• 649 District Court Judges dispose of approximately 260,000 cases annually

• 179 Court of Appeals Judges dispose of 55,000 approximately cases annually
• 9 Supreme Court Justices hear about 80 cases each Session
• No Cases for the first 3 years!
– No Building until 1935
• John Marshall “found the Constitution paper and made it power”
(Garfield)
• Dred Scott 1857 – Overturns an Act of Congress and sets the stage for WAR
• Roosevelt and the Court Packing Plan 1937-38
• Warren Court 1953-1969
– Biggest mistake I ever made… (Eisenhower)
– Modern Activist Court
– Brown, Miranda, Baker v. Carr
• Burger Court 1969-1986
– Moderate, Activist Court
– Roe v. Wade, Nixon
• Rehnquist Court 1986-2005
– Conservative, Activist Court?
– Texas v. Johnson, Bush v. Gore
• President Nominates; Senate Confirms (Art. II, S. 2 (2))
• Why is this such a political “hot potato”?
– Because “only in the United States do judges play so large a role in making public policy”
(James Q. Wilson)
• Senatorial Courtesy
• 147 Justices submitted, 29 failed to be confirmed (7 in the last hundred plus years)
• “Borking”, paper trail, “litmus” tests

• “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour “(Article I, Section1)
• Term begins the “First Monday in October”
• Generally done by June or early July
• 8,000 petitions filed per term
• (plus 1,200 other applications)
• Less than 100 cases actually heard each session – 80 this session
• Affirm
• Reverse (or Void)
• Remand
You Say Tomato…
Types of Opinions:
• Unanimous
• Majority
• Concurring
• Dissenting
• Per Curium
• Jurisdiction – the authority of a court to hear and decide a case
– Geographic
• What Courts of Appeals is your District Court within?
– Subject matter
• Criminal or Civil?
• Writ of Certiorari
– An order for a lower court to send up the records of a case for review
– It means, in Mom speak, “We’ll see”

– Rule of 4: Four justices must approve for a writ to be issued
– (95% of requests are rejected)
• Standing
– You must have a sufficient stake in the matter to justify bringing suit
– The party bringing the suit must have suffered harm or threat of harm
– Must be “justiciable”, not hypothetical or academic
Straight from the Home Office in Wahoo, Nebraska
– Marshall Court:
• Marbury v. Madison 1803
• McCulloch v. Maryland 1819
• Gibbons v. Ogden 1824
– Taney Court
• Dred Scott v. Sanford 1857
– Fuller Court
• Plessy v. Ferguson 1896
– And Harlan’s dissent
– Warren Court:
• Mapp v. Ohio 1961
• Baker v. Carr 1962
• Brown v. Board of Education 1954
• Gideon v. Wainwright 1964
• Miranda v. Arizona 1966
– Burger Court:
• Roe v. Wade 1973
• Nixon v. US 1974
• UC v. Bakke 1978
– Rehnquist Court:
• Bush V. Gore
• The power of the federal courts to test federal and state legislative enactments and other actions by the standards of what the
Constitution grants and withholds.
(findlaw)
• The power of the courts to declare acts of the legislature and the executive unconstitutional, and therefore null and void.
(Wasserman)
How Many Times Do I Have To Tell You???
• Federal Laws Overturned
– About 200
• Judicial Rulings NOT held to as Precedent
– 140 cases since 1810

• (JQ Wilson)
• Article 6 was directed at assuring that STATES didn’t do anything that conflicted with the supreme national law.
• State Laws Overturned
– More than 1100
Three Eras, Three Sets of Questions:
• 1787 – 1865 Dominant Issues
– Nation Building
– The Legitimacy of the Federal Government,
– Slavery
– The Federal Government is Supreme
• 1865-1937 Dominant Issue
– The relationship between Government and the economy
– The Government can be Restricted
• 1938-present Dominant Issues
– Personal Liberty
– Social Equality
– Balancing Liberty and Equality
• Personal Freedom is Enlarged; Economic Freedom is Narrowed
• No initiative
– The Court must wait for someone with standing to bring suit
• No Army
– How exactly does the Court ENFORCE its decisions?
• They won’t do Political Questions
– (really, they won’t, honest, hardly ever…)
• Checks and Balances:
– Impeachment
– Appointments/Confirmations
– Judicial Structure, Number of Judges (152 new judgeships in 1979)
– Really specific legislation – no room for interpretation
– Constitutional Amendments (11,13,14,16,26)
– Restricting Jurisdiction
• True Constitutional Questions are rare. And yet…
Sources of Strength for the Court
• Enormous Prestige
– More than half have “a great deal” or “quite a lot” of confidence in the Court.
– The “guardians of the Constitution”
• Our Fragmented Constitutional Structure
– Creates the need for an umpire
– Athletes – are umpires neutral?
• A HUGE Constituency – Lawyers

– Look at page 143
– Washington Lawyers: 1972 – 11,000; 1994 – 63,000
– An Observation by Sandra Day O'Connor
"There is no shortage of lawyers in Washington, DC. In fact, there may be more lawyers than people."
• Judicial Review – The Court is the final interpreter of the law; it determines what is
Constitutional.
• Judicial Activism – an active, creative partner in shaping government policy. More than an umpire – an active participant.
• Judicial Restraint – should not impose its views unless there is a clear violation of the
Constitution. A deferential role which lets other branches lead the way.
• Do you remember the definition of politics?
• The process of deciding: who gets what , when , and how .
• Do judges have a role in those decisions?
• Does Ruth Bader Ginsburg wear a funny collar?
• "Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind."
• Judges are not politicians who can promise to do certain things in exchange for votes.
• -Justice John Roberts
Senate Judiciary Committee Hearings, Day One
Why Should I Care About Judges?
Why Should I Care?
Past, Present and Future issues that will make a difference in your life!
In the words of the famous judicial philosopher,

• Paula Abdul…
• Amendment 5 - Trial and Punishment, Compensation for Takings
• No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Abortion, the States and the Courts
Here’s a nice non-controversial topic…
• Gonzales, Alberto (Atty Gen) v. Carhart, Leroy, et al.
•
Docket: 05-0380
• Term: 06-07
• Appealed From: 8th Circuit Court of Appeals (July 8, 2005)
• Oral Argument: 11-08-06
• Subject:Abortion, Partial-Birth Abortion Ban Act, mother's health
• Questions presented: Whether, notwithstanding Congress's determination that a health exception was unnecessary to preserve the health of the mother, the Partial-Birth Abortion Ban Act of 2003 is invalid because it lacks a health exception or is otherwise unconstitutional on its face?
• Numbers on the prevalence of both procedures are hard to obtain. The following estimates come from the Alan Guttmacher Institute, which derives its statistics both from its own peer-reviewed research and from data provided by the Centers for Disease Control and
Prevention. Based on data that 1.29 million abortions were performed in the United States in 2002, and that 1.4 percent of abortions in 2001 occurred at or after the 21st week of pregnancy, one can estimate that 18,060 abortions occurred after the end of the second trimester. The data do not specify the procedure used in each case.
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Section 1. The Legislature accepts and concurs with the conclusion of the South Dakota Task Force to Study Abortion, based upon written materials, scientific studies, and testimony of witnesses presented to the task force, that life begins at the time of conception, a conclusion confirmed by scientific advances since the 1973 decision of Roe v. Wade, including the fact that each human being is totally unique immediately at fertilization. Moreover, the Legislature finds, based upon the conclusions of the South Dakota Task Force to Study Abortion, and in recognition of the technological advances and medical experience and body of knowledge about abortions produced and made available since the 1973 decision of Roe v. Wade, that to fully protect the rights, interests, and health of the pregnant mother, the rights, interest, and life of her unborn child, and the mother's fundamental natural intrinsic right to a relationship with her child, abortions in South Dakota should be prohibited. Moreover, the Legislature finds that the guarantee of due process of law under the Constitution of South Dakota applies equally to born and unborn human beings, and that under the Constitution of South Dakota, a pregnant mother and her unborn child, each possess a natural and inalienable right to life.
Section 2. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:
No person may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being. No person may knowingly use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the
termination of the life of an unborn human being.
Any violation of this section is a Class 5 felony.
Section 3. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:
Nothing in section 2 of this Act may be construed to prohibit the sale, use, prescription, or administration of a contraceptive measure, drug or chemical, if it is administered prior to the time when a pregnancy could be determined through conventional medical testing and if the contraceptive measure is sold, used, prescribed, or administered in accordance with manufacturer instructions.
Section 4. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:
No licensed physician who performs a medical procedure designed or intended to prevent the death of a pregnant mother is guilty of violating section 2 of this Act. However, the physician shall make reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of her unborn child in a manner consistent with conventional medical practice.
Medical treatment provided to the mother by a licensed physician which results in the accidental or unintentional injury or death to the unborn child is not a violation of this statute.
Nothing in this Act may be construed to subject the pregnant mother upon whom any abortion is performed or attempted to any criminal conviction and penalty.
That wasn’t complex enough for you? How about this one?
Same Sex Marriage, the States and the Courts
Why should I care about other state’s judges?

• I do not tink that word means what you tink that word means…
• Judicial Review at the State Level
– Massachusetts
Same Sex Marriage
• Two Constitutional Concepts:
• Two Federalism Concepts:
• Two Statutory Questions:
• One BIG Question:
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• Full faith and credit:
• "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and
Proceedings shall be proved, and the Effect thereof." Article 4, section 1
• Equal protection:
• The Equal Protection Clause is part of the 14th Amendment of the United
States Constitution. The clause provides that “no state shall make or enforce any law which shall...deny to any person within its jurisdiction the equal protection of the laws.”
DOMA
H.R.3396
One Hundred Fourth Congress (1996) of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Wednesday, the third day of January, one thousand nine hundred and ninety-six
An Act
To define and protect the institution of marriage.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Defense of Marriage Act'.
SEC. 2. POWERS RESERVED TO THE STATES.
(a) IN GENERAL- Chapter 115 of title 28, United States Code, is amended by adding after section 1738B the following:
`Sec. 1738C. Certain acts, records, and proceedings and the effect thereof
`No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.'.
(b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 115 of title 28, United States Code, is amended by inserting after the item relating to section 1738B the following new item:
`1738C. Certain acts, records, and proceedings and the effect thereof.'.
SEC. 3. DEFINITION OF MARRIAGE.
(a) IN GENERAL- Chapter 1 of title 1, United States Code, is amended by adding at the end the following:
`Sec. 7. Definition of `marriage' and `spouse'
`In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word
`marriage' means only a legal union between one man and one woman as husband and wife, and the word `spouse' refers only to a person of the opposite sex who is a husband or a wife.'.
(b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter 1 of title 1, United States Code, is amended by inserting after the item relating to section 6 the following new item:
`7. Definition of `marriage' and `spouse'.'.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.

• Rep. Burton, R-Ind., has proposed legislation (HR 724) that would remove the federal marriage law from court oversight under Congressional power to limit the judiciary's jurisdiction. That legislation would need only a simple majority to pass.
• The Marriage Protection Act addresses that possibility by removing the Supreme Court’s appellate jurisdiction, as well as inferior federal courts’ original and appellate jurisdiction, over DOMA’s full faith and credit provision. It also removes appellate jurisdiction from the Supreme Court and inferior federal courts over DOMA’s marriage definition provision.
• Sec. 1632. Limitation on jurisdiction
• `No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C of this section.'.
Same Sex Marriage
• Two Constitutional Concepts:
– Full Faith and Credit (Article 4, section 1)
– Equal Protection (14th Amendment)
• Two Federalism Concepts:
– Federal Defense of Marriage Act 1996
– “Mini” DOMA’s in the states – Only 9 states do NOT have some sort of prohibition against same sex marriage
(20 are constitutional amendments)
• Alabama, South Carolina, South Dakota, Tennessee, and more will vote in 2006 or 2007
• Two Statutory Questions:
– Can Congress successfully withdraw jurisdiction over the DOMA from the Supreme Court?
– Does Massachusetts's 1913 law protect other states?
• One BIG Question:
–
Will we end up amending the federal Constitution?
Supreme Questions
• The Constitution does not specify the number of justices on the Supreme Court, leaving the issue to
Congress. The first Supreme Court in 1789 consisted of five justices. Initially the justices’ duties included traveling through the country to hear cases in federal circuit courts. Congress added a sixth seat in 1790 and a seventh in 1807 to ease the strain on justices as the number of circuit courts increased. Congress added the eighth and ninth seats in 1837. Membership stayed at nine until 1863, when Congress added a tenth seat, only to abolish it when a justice died in 1865. In 1867 Congress reduced the seats to seven to limit the opportunity of President Andrew Johnson to appoint new members. Congress restored the number of seats to nine in 1869, and in 1891 abolished the Supreme Court justices’ circuit-riding burden.
The number of justices has remained fixed at nine, making tie votes unlikely unless circumstances prevent a justice from participating in deliberations. http://encarta.msn.com/encyclopedia_761574302_2/Supreme_Court_of_the_United_States.html
Internal Promotions; Non-Judge Justices
• Actually, new Chief Justice Roberts was originally nominated to fill O’Conner’s spot, but when
Rehnquist died, the president elevated the nomination.

• John Marshall is widely revered as "the great Chief Justice," but before joining the Supreme Court in 1801 he had never served a day in judicial robes and lost the only case he argued at the high court. Earl Warren had worked for 18 years as a prosecutor and was three times elected governor of California. But he had no prior judicial experience. Nor did William Rehnquist, Felix Frankfurter, and Louis
Brandeis.
• 41 of the 109 justices had no prior judicial experience.
• http://www.csmonitor.com/2005/1007/p01s03-usju.html?s=rss