VI. Judical Branch/Civil
Liberties/Civil Rights
VI. Judicial Branch/Civil Liberties/Civil
Rights
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A. Rule of Law v. Rule of Men
1. Define Rule of Law –
a. society establishes regulations, principles
+ norms coordinated by unbiased
individuals.
b. A society of laws is ruled by laws because
- Justice is blind, it is the arbitrator
between adversaries.
1) Criminal law - violation of specific laws
that will be punished.
2) civil law - disputes between two sides,
that violate statutes (legislative
decisions) or common laws (judicial
decisions)
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c. Participants 1) litigants
a) plaintiff- the one charging v.
b) the defendant - La Shomb v. ATECH
c) class action suits- A group who have similar
complaints, band together to represent all
similarly situated.
d) Cases must be “justiciable disputes”- able to be
resolved or the plaintiff can be hit with frivolous
charges and must pay the court costs. Most cases
are settled “outside” of court. . .a deal is made!
e) SIGS can assist in cases w/ amicus curiae - Friend
of the court” briefs!
f) Lawyers - Difficult to participate in the Judicial
drama without a lawyer. It’s a game of laws that
lawyers must interpret!
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A2. Federal level - Judicial Br
- Art III - . . . judicial pwr shall extend to all cases, in
Law + Equity. . and vested in one Supreme Ct + in
such inferior courts.
3. The cases: (page 510)
a. application of the Constitution, fed law, or fed
treaty.
b. interpretation of the Constitution, fed law or fed
treaty.
c. admiralty + maritime laws
d. US, fed gov’t, fed agency
e. rep of foreign gov’t. i.e. ambassador
f. state sues another state, citizen of another state, or
foreign gov’t. BUT states can’t be sued by
individual or foreign nation in fed court.
g. citizen v. citizen limit is $50,000 or more.
h. two states vying for same property
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4. The judicial landscapefinding the right court. . .
a. Constitutional courts 1) Judiciary Act of 1789 gets Fed
district cts
a) 91 cts
b) These cts have original jurisdiction
c) only ct’s to hold trials w/ juries (only
3% end in ruling, the rest are plea
bargained)
d) 675 judges–all picked by PRez/confrmed
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2) Ct of Intern’tl trade
3) Court of Appeals
a) appellate jurisdiction
b) 12 districts
c) correct mistakes made in district cts.
4) Supreme Ct a) original and appellate jurisdiction
b) 9 justices
c) Constitutional issues (14th amendment)
d) Judicial Review . . . Which does what?
Ans- challenges leg + exec branch decisions.
5. Special cts + legislative cts (set up to deal w/
powers of Congress)
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5. Jurisdiction a) original - trial starts here. 90% end
here
b) appellate - adverse decision from
lower ct. or highest state supreme ct
sends it up to US Supreme Ct if the SC
wishes to accept the case.
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6. The Judges’ Portfolio
a. Presidential nomination w/ Senate vote to confirm
the appointment
1) Senatorial courtesy - home state senator can
immediately VETO a confirmation w/o discussion.
2) Lifetime appointments for all fed judges
which can enhance a president’s legacy
3) impeachment (7 in US history) is available for
“unacceptable” behavior.
4) Judge must meet the “litmus test” - ideological purity
is critical and Divided Gov’t makes it more difficult to
select and confirm judges. Confirmation could go
badly if:
a) you have the minority party in Senate
b) Prez is in the late term selections
c) Judge has ethics violations, can nix nomination. i.e.
Clarence Thomas survived, Robert Bork did not. OR
maybe one is not qualified. i.e. Myers
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b. Qualifications (Judge Search)
1) Most are Lawyers
2) Male (4 female selections)
3) White (2 blacks selected, i.e.
Thurgood Marshal + Thomas
4) SES - upper middle or upper class
5) Protestants + Catholics
6) Party favorites - only 13 of 113 SC
judges non partisan selections. 90%
partisan selections.
7) IDEOLOGY is the KEY factor
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c. Case work -- “Fed questions”
1) Judicial review gives fed cts power to
“hear” federal questions and . . .
overrule Leg + Exec branches -- overturned
100 rulings
Marbury v. Madison 1801 provided right of
Judicial Review. . .
2) Rule of 4 culls through 7500 case + selects
about 100.
3) Solicitor Genrl assists in Appellate ct case
load possibilities. . .
a) writ of mandamus - Ct demands action
b) writ of certiorae- Certificate that requests
A lower court to send up a case to the SC
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(4) deliberations + opinions
Chief justice delegates authority to writing
WHY we (the SC) voted. Only 1/3 of
decisions have been unanimous.
a) concurring - We agree and here is why
OR-could stress a “different” constitutional or
legal foundation for the opinion
b) dissenting - we disagree
c) stare decisis - decision stands d) need SIX judges to vote -- MAJORITY. Tie
votes retains lower Ct decision. Need five
votes to set a . . .
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(d) Precedent lower cts follows decisions of higher cts. SC can
overrule its own decisions (200 times) because
times change.
Brown v. Board of Educ (54) (Integrate)
overruled
Plessy v. Ferguson (1898)
(Separate but equal)
Congress can re-initiate legislation the following
term.
(e) Interpretations can follow strict constructionist
beliefs (original intent of the constitution)
v.
Activist decisions
Political climate can indicate the ideological
tendencies of the bench.
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d. Court History 1) First Quarter - Developmental issues
i.e. Marbury v. Madison
2) 2nd Quarter - Economic issues
Munn v. Illinois (1877) set up ICC
3) Third quarter- social issues (1930s-1980s)
a) Warren Ct set “liberal precedents in education,
civil liberties, re-apportionment, 1960’s
b) Burger Ct (a Minnesotan selected by Nixon was
more conservative although it set precedent w/
Roe v. Wade.
c) Rehnquist Ct - limited rights established by Warren
Ct, not reversed; affirmative action policies severly
scrutinized.
d) 4th Quarter – Privacy Issues – Roe v. Wade- Today. . .
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B.Civil Liberties (CL)
1. define Indiv legal and constitutional protections v.
Govt.
CL’s are found in the Bill of Rights (1-10) and
the SC is the final arbitrator.
Winds of change shift these interpretations,
especially in time of war . . . (cartoon)
2. Bill of rights review
a. Freedom of Expression (religious, press,
speech, assembly - 1)
b. Privacy (3+4)
c. Defendant’s rights (5-8)
d. Other rights (2,5,9-10)
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3. Only a federal issue Barron v. Baltimore,
states or local gov’t could infringe on civil
liberties until SC ruled in 1925 that states
must follow SOME 1st Amendment rights
Gitlow v. New York.
BUT
4. SC used the 14th Amendment as the
precedent, not the 1st. States could NOT
abridge 1st Am freedoms.
Incorporation doctrine - States have slowly
come under the Bill of Rights.
5. Door is now open for Bill of Rights
enforcement:
a. 1st Amendment court cases. . .
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1. Tinker v DesMoines-Dress codes
2. Gitlow v. N.Y. -Incorporation Doctrine
3. Lemon v. Kurtzman-Aid to churches follows set guidelines
4. Engel v. Vitale- Prayer in schools is unconstitutional
5. School District of Abington Township v. Pennsylvania v.
Schempp- Prayer violates establishment clause
6. Near v. Minnesota (1931) -no prior restraint censorship
7. Schneck v. U.S. (1919) -Govt could restrict inflam rhetoric
8. Brandenburg v. Ohio- can incite w /o lawless action
9. Reynolds v. US (polygamy + Mormom church) State prevails
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10. Roth v. U.S. Obsentity cannot be protected by the
1st
11. Miller v. California Community standards sets
Obscen
but what is lewd or offensive?
12. N.Y. Times v. Sullivan -Malice
13. Texas v. Johnson -Flag burning is symbolic
speech
14. Oregon v. Smith (drug use. . .laws prevail)
15. U.S. v. Playboy Entertainment Group -Target
block v. ban
16. Red Lion v. FCC
-Gov’t can
restrict broadcasts.
17. Reno v. ACLU - 1st Amendment applies to
internet
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18. Ashcroft v. ACLU – US must use
filtering software for porn
19. Ny Times v. US (1971) Pentagon
papers can be published. No prior
restraint
20. DeJonge v. Oregon (1937)
invalidated state laws Freedom of
Assembly
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b. Restrictions on 1st Amendment
unprotected speech include obscenity, defamatory
speech, pornography, fighting words, seditious
speech. The PRess now includes cable, faxes + emails
a)
Libel (Print) + Slander (Vocal) = Malice
B) Protected speech: Political Speech - Snyder v.
Baptist church is OK
2) Freedom of assembly restrictions - lawful +
nonviolent; order maintained by time, place,
manner; precise, fairly administered and content
neutral. NO prvt property trespassing! 3P’s
3) Freedom of religion
a)
Establishment clause. . .Engel + Lemon
b)
Free Exercise Clause – Oregon v. Smith
1)
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2nd Amendment
Who has the right to bear arms?
State or Individual?
a.
“A well regulated Militia, being
necessary to the security of a free
State, the right of the people to
keep and bear Arms, shall not be
infringed.”
DC v. Heller
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c. Accused Rights 4th, 5th, 6th, 7th, 8th Amendments:
1). Original intent to protect rights from political arrests. Now it
has expanded to protecting rights of the “accused”.
2). Process (T- )
a). Crime (5 to 1 ratio of what’s reported) > Arrest
(1) Probable (Reasonable) Cause to arrest + gather evidence4th Amendment restricts unreasonable searches + Seizures +
Writ of Habeus Corpus issued forbidding imprisonment w/o
evidence (Art 1)
(2) Exclusionary rule- Can illegally seized evidence be used
against the accused?
((a)) Yes if . . .
((1)) the evidence was in plain view
((2)) Exigent circumstances - time doesn’t allow securing a
warrant
((3)) Auto exception - Probable cause that a crime was
committed or may be committed.
((4)) Foreign agents can be “tapped”
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b). search warrant - “Terry” search - Frisk
c) Once apprehended- legal counsel
d) Questioning - no forced incriminations
(5th) + no excessive bail (8th)
3) Prosecution ( or plea bargain) > Trial
Speedy trial w/ a jury (6th, Art III) + no
double jeopardy (5th); confront witnesses
(6th)
4) Verdict > Sentencing (if needed)
No cruel or unusual punishments (8th)
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21. Mapp v. Ohio- Exclusionary rule holds for states too.
22. Miranda v. Arizona - Police questioning of suspects
23. Jacobson v. U.S. - IS IT OR IS IT NOT ENTRAPMENT
24. Gideon v. Wainright- Felony charged defendants need
counsel
25. Betts v. Brady - Only Cap Punish defendants get counsel
26 Fuhrman v. Georgia-Sentencing too random, but CP is OK
27. Harmelin v. Michigan
-severity isn’t necessarly cruel
28. Gregg v. Georgia-Cap Punish is severe, but not cruel
29. McGlesky v. Kemp-Cap Pun does not violate 14th Amend
30.
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30. Griswold v.Connecticut-Privacy issue over Birth
control 9th
31. Roe v. Wade-Trimester ruling unleashed abortion
issue
32. Webster v. Reproductive Health Services-states
can control who performs abortions, i.,e. state
employees
33. Rust v. Sullivan -No fed funds for planning
abortions
34. Planned Parenthood v. Casey- abortions can be
regulated
35. Sternberg v. Carhart -partial birth abortion is
legal
36. Cruzan v. Director, Missouri Dept of Healthpatients can refuse med treatment- informed
suicide
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37. Bd of Ed v. Earls –Drug testing is Not unreasonable
search.
38. US v. Drayton et al – Weakened exclusionary rule w/o
empowering police
39. Atkins v VA., outlawed Death Pen for mentally
retarded.
40. Hamdi v. Rumsfeld-Security conditions do not revoke
a captured combatant’s rights to redress his/her
grievances.
41. District of Columbia v. Heller Right to bear arms 2nd
Amendment; city can’t forbid weapons.
42. Ring v. AZ., Juries must deliver death sentences.
43. Kyllo v. US- High Tec surveillance needs a warrant
44. Dickerson v. US– Can’t undermine Miranda. It’s a
constitutional rule!
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Right to Bear Arms
2nd Amendment states: A well-regulated Militia,
being necessary to the security of a free State,
the right of the people to keep and bear Arms,
shall not be infringed.
Court held that:
1) Although the amendment lacks interpretation\
a) DC’s actions were in conflict with the majority of
state rulings.
b) DC’s actions were far too encompassing. . .”all
weapons should be restrictive”.
c). States still prohibited “concealed weapons”.
d)Takes away the right (or liberty) of self-defense.
e) 5-4 ruling, Scalia wrote majority opinion
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VI. Cee. Civil rights Providing equality to the minority/majority
1. The question is NOT can gov’t treat people of
different races or ethnic nationality differently. . .
But it is whether such differences in treatment are
reasonable.
2. Historical examples
a. Native Americans
b. Irish discrimination in the NE
c. Japanese-Americans
d. women entering med school in the ‘20’s
e. Rich people get taxed more than poor people.
f. Except in some cases, classifying people on the
basis of race or ethnicity is unreasonable - “Suspect
Classifications”
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g. The Constitution does ensure (ALTHOUGH
never specifically mentioned) that
1) Gov’t does not discriminate against us
2) Gov’t protects us from interference by
private individuals.
h. Framers referred to these rights as
“NATURAL RIGHTS”, rights of all people to
dignity and worth.
Today they are called HUMAN RIGHTS.
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3. Equality -
a. Promote equality OF:
Freedom “to” and Freedom “from” unless it
compromises someone else’s right
1) “E”of opportunity - go for it, you are the
catalyst, It also means competition. You
are the mover!
2) “E”of Outcome - i.e. Affirmative Action not just a boost but Gov’t has an obligation
to promote minority development. Project
evolved from helping the black male to the
white female.
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3) The opposite of affirmative action is
Discrimination - denying access.
4). Equal Justice - not equal results or equal
rewards. . .the Constitution does NOT
intend to provide equal condition. . . just
equal opportunity - Life should get better.
a) 1st mention of equality is in the 14th
Amendment - All will have “equal
protection” unless there is a “compelling
public interest” to discriminate.
b) Burden of proof is on the state.
THEREFORE . . . to right a past wrong, I
may have to discriminate to RIGHT past
ills for a period of time!
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14th Amendment
Sect 1: Citizenship: All persons born or naturalized
. . . Are citizens of the US and cannot deny the
privileges or immunities of citizenship (=
Opportunity) . . .or deny due process.
Sect 2: Reps shall be apportioned
Sect 3: Can’t be a terrorist unless Congress
approves
Sect. 4: Public debt validity.
Sect. 5: Congress shall enforce.
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5. Black issues-
a. although the 13th Amendment prohibits
slavery – 1865 Overturned
Dred Scott v. Sanford
b. ????Amendment Equal protection – 1868
14th
c. ??? Amendment - Right to vote (1870)
15th established racial equality for men . . .
d. Society did not transform as quickly. Civil War is
often seen as more of an economic conflict than a
racial conflict. So race issues took more time to
resolve.
e. Segregation and White Supremacy prevailed.
Reconstruction ended in 1877 w/ Whites in
control of the south, and blacks were left to
Jim Crow Laws that preached a separate society.
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i.e Plessy v. Ferguson
1) voting
2) Housing
3) Job procurement
4) accessibility to public accommodations
f. NAACP formed in 1910.
g. During WWI, Blacks migrated north to the cities
and their sheer numbers became a political force
as middle class became accessible
h. During WWII. . .blacks sought judicial relief.
(1) President Truman and Eisenhower integrated the
military and Fed Bureaucracy
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f. 1950’s - Blacks seek political muscle1) Martin Luther King, using the First Amendment Freedom of petition- sought relief via civil
disobedience and the white supremacists
responded with fire hoses and police tactics that
assimilated Nazi Germany. Rosa Parks
2) As Congress dragged its feet w/ a Southern
Senatorial block, the executive and judicial
branches responded.
a) Brown v. Board of Education (1954)
Segregation by law “de jure segregation” was
unconstitutional. But de facto segregationsegregation by choice or reality- still prevailed
until Swann v. Charlotte Mecklenburg Board of
Education 1971, the SC ruled that schools will redistrict to end segregation via busing, a very
unpopular device to integrate.
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(b) Rosie Parks boycott of Montgomery (1955). Little
Rock school integration ‘57.
Whites joining the fray. . .
(c) Birmingham riots 1963
(d) March on Washington 1964
(e) JFK promoted civil rights legislation and it was
enacted with the Civil Rights Act of 1964
(f) Hot summers of 1965-1967: Watts, Detroit,
Minneapolis, Harlem
(g) Kerner Commission said we have two Americas,
white and black and it would take a commitment
on the nat’l level to integrate
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g. The Feds respond:
1) How does one get access to gov’t?
a) Da Vote - Voting Rights Act of 1965 ended the
means to effect suffrage.
b) Poll taxes (24th Amendment), White primaries,
gerrymandered districts, all were thrown out.
Ended the Grandfather clause; Literacy tests;
Protest turned to politics = 12,000 African
Americans now hold elected office, as compared
to 70 in 1965.
c) This has also established “minority v. majority
districts that promoted minority electorates . . .
but Shaw v. Reno and other cases has
condemned the design of districts using race as
the predominant factor.
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6. Women Issues
- Equality > Privacy > Harassment > Choice
a. Blacks showed that judicial route was the
quickest way to gain a semblance of
equality.
b. A “paternal” court protected women until
the 1970’s, but the feminist movement
went from social to political and judicial
movement and the courts responded.
c. Women in the work force has provided
economic equality (by some
measurements). Political equality came
with the 19th Amendment (1920) but ERA
fell short in 1987.
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d. Judicial interpretations
revolves around the reasonable standard
1) Rational base test - Is it reasonable to have boys’
compete VS girls in hockey; or force ALL
occupations to have equal number of male and
female employees when certain occupations may
“fit” a man more, or a female more
or there may not be employees to fill these spots by
gender? Reed v. Reed 1971 1st discrimination
ruling based on gender.
2) Heightened/medium scrutiny- Important gov’t
objectives exist for gender based law. Orr v. Orr.
Alimony only to women. . .NOTTT
3) Strict Scrutiny standard. A Man gets the raise
because he is the major wage earner, not the
female. . .NOTTTTT. Fundamental rights are at
issue here. . .
e. Civil Rights Act of ‘64 + ‘72 banned sex
Judicial Branch/Civil
Liberties/Civil
discrimination in VI.
hiring,
firing
and compensation. 38
Rights
f. Can women be drafted? No. . .
Rostker v. Goldberg 1981 - SC will give “great
deference” to Congressional policy.
The FATE of ERA was determined with this ruling
because if ERA passed, the Rostker ruling could be
at risk. Today, women are not allowed in ground
troop combat positions and limited naval
operations.
g. Womens’ issues now have evolved into Sexual
harassment cases as women have moved into the
Workplace. Title IX legislation has provided women
opportunity in the “Public school” sector which has
initiated her advancement in the Private sector.
1) Sexual harassment guidelines
a) requesting sexual favors - Quid pro quo rule employer is liable
b) hostile environment - liability + negligence
c) Most federal laws are vague
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h. Comparable worth
- Equal pay for equal worth. . .Women still earn as
much as 70% less than their male counterparts in
the private sector. Who will pay for equity?
i. Pro-life v. pro choice - Roe v. Wade was, according
to the SC, a privacy issue, not when life begins.
Opponents say No
1.) Hyde Amendment followed, restricting fed funds
to lower income women if the mother is not in
danger.
2) SC has given states more leeway in controlling
abortions, but still supported women in not
contacting their husbands, and partial birth
abortions.The issue evolves
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7. Affirmative Actionproviding compensation to a
discriminated group. Moving
beyond equal opportunity to equal
results.
a. Results have provoked reverse
discrimination charges - Regents of
U of Calif v. Bakke. He was denied
admittance on race although he had
higher test scores . SC favored
Bakke, no more quotas, but race can
be a factor.
b. Adarand . . .minority quotas are unconsti
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8. Civil Rights quests
has moved into a variety of arenas
a. Age discrimination + mandatory retirements.
Rationale basis test.
b. Youth Tests-- Can you divorce your parents. . .Can
you pick your legal guardians?
c. Disabled Americans - Americans w/ Disabilities
Act of 1990 (ADA)
1) define disabled - AIDS victims, Eye glass wearers.
. .Who will bear the cost?
d. Gay + Lesbian Rights - Rights to privacy to Hate
crimes to the Boys’ Scouts, who denied a
homosexual entrance into the program.
e. Ethnic Inequality-minority/majority grows
f. But the SC has not always been pro-affirmative
action. . .Baake, Adarand v. Pena, the Michigan
cases has tempered the zeal of the federal gov’t.
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