Chapter Sixteen
The Judiciary
Organization
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Civil Law and Criminal Law
• A private party files
the lawsuit as the
plaintiff.
• Burden of Plaintiff, but
can be shifted to
Defendant
• ‘For the Plaintiff’ or
‘For the Defendant’ by
a preponderance of
the evidence
• Remedy is
Compensation
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• The state, representing
the people, prosecutes
the case.
• Presumption of
Innocence; burden of
proof is on the state
• ‘Guilty or Not Guilty’
beyond a reasonable
doubt
• Remedy is Punishment
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Article III, Section 1
Which branch of government is given the power
to establish lower federal courts?
The judicial power of the United States, shall be
vested in one Supreme Court, and in such inferior
courts as the Congress may from time to time
ordain and establish.
Why do you think this is the case?
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District and Circuit (Appellate) Courts
Administrative Office of the United States Courts (January 1983).
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Selection
Back row: Alito, Ginsburg, Breyer, Sotomayor.
Front row: Kennedy, Stevens, Chief Justice Roberts, Scalia, Thomas.
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Article II, Section 2
(The President) shall nominate, and by and
with the advice and consent of the Senate,
shall appoint ambassadors, other public
ministers and consuls, judges of the
Supreme Court, and all other officers of the
United States.
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Selecting Judges
• Tradition of Senatorial Courtesy
– Potential Nominees for federal courts are
first recommended by the National Bar
Association
– They are then reviewed by senators from
the state
– Senators ‘blue slip’ the nominee
Is this Constitutional?
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Selecting Judges
• Presidents seek judicial appointees who
share their political ideologies
– ‘Litmus test’
– delays in securing Senate confirmations
– But only 29 of 145 Supreme Court nominees
have been rejected
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Constitutional Interpretation
• Strict Construction: judges are bound by
the wording of the Constitution
– most strict constructionists tend to be
conservative Republicans
• Activist: judges should look to the
underlying principles and intentions of the
founders
– most activists tend to be liberal Democrats
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Current Supreme Court
Ginsberg (Clinton, 1993): very liberal
Stevens (Ford, 1975): consistently liberal
Breyer (Clinton, 1994): consistently liberal
Sotomayor (Obama, 2009): centrist but more likely to vote liberal
Kennedy: the swing vote, but considered a conservative
Alito (Bush, 1990): consistently conservative
Roberts (Bush, 2005): consistently conservative
Scalia (Reagan, 1986): extremely conservative
Thomas (Bush, 1991): : extremely conservative
The current court is considered conservative
The most likely justices to leave the court during Obama's
administration are Stevens and Ginsburg.
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Selecting Judges
http://www.youtube.com/watch?v=gasBJMNUiHg
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Robert Bork, 1987
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Robert Bork's America is a land in which
women would be forced into back-alley
abortions, blacks would sit at segregated
lunch counters, rogue police could break
down citizens' doors in midnight raids,
schoolchildren could not be taught about
evolution, writers and artists could be
censored at the whim of the Government,
and the doors of the Federal courts would
be shut on the fingers of millions of
citizens for whom the judiciary is—and is
often the only—protector of the
individual rights that are the heart of our
democracy... President Reagan is our
president. But he should not be able to
impose his reactionary vision of the
Constitution on the Supreme Court and
the next generation of Americans. No
justice would be better than this injustice.
-Senator Ted Kennedy, 1987
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Harriet Miers, 2005
•
•
•
•
•
•
•
•
•
Bachelor’s in Math, 1965
Law Degree from SMU, 1968
Clerked for a Judge, 1970
Attorney for GW Bush, 1976
Member of Dallas City Council,
1990
Ran Bush’s Campaign for
Governor of Texas, 1994
Chair of Texas Lottery, 1995
Deputy Chief of Staff to
President, 2001
Nominated to Supreme Court,
2005
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Article III, Section 1
What is the term of a Supreme Court justice?
The judges, both of the supreme and inferior courts,
shall hold their offices during good behaviour,
and shall, at stated times, receive for their
services, a compensation, which shall not be
diminished during their continuance in office
Why do you think this is their term?
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Jurisdiction
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Article III, Section 2
List three examples of cases that would fall under the
judicial power of the Supreme Court.
The judicial power shall extend to all cases, in law and equity, arising
under this Constitution, the laws of the United States, and treaties
made, or which shall be made, under their authority;
--to all cases affecting ambassadors, other public ministers and consuls;-to all cases of admiralty and maritime jurisdiction;-to controversies to which the United States shall be a party;
--to controversies between two or more states;--between a state and
citizens of another state;
--between citizens of different states;
--between citizens of the same state claiming lands under grants of
different states,
and between a state, or the citizens thereof, and foreign states, citizens
or subjects.
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Article III, Section 2
List three examples of cases that would fall under the
judicial power of the Supreme Court.
All cases dealing with
• Federal Questions
–
–
–
–
–
The Constitution or Federal laws
Treaties
Ambassadors, other public ministers and consuls
Admiralty and maritime jurisdiction
The United States government
• Diversity Cases
–
–
–
–
–
Two or more states
A state and citizens of another state
Citizens of different states
citizens of the same state over property in a different state
a state or citizen and foreign states or citizens
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Federal Cases
• Federal question cases: involving the
U.S. Constitution, federal law, or treaties
• Diversity cases: involving different states,
or citizens of different states
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Article III, Section 2
What is “Original Jurisdiction”?
The ability and authority to hear and decide
cases for the first time based on hearing
testimony and viewing evidence
In contrast to hearing a case “on appeal”
after a verdict has been rendered.
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Article III, Section 2
Under what circumstances does the Supreme
Court have “original jurisdiction”?
In all cases affecting ambassadors, other public
ministers and consuls, and those in which a state
shall be party, the Supreme Court shall have
original jurisdiction.
In all the other cases before mentioned, the
Supreme Court shall have appellate jurisdiction,
both as to law and fact, with such exceptions, and
under such regulations as the Congress shall
make.
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Article III, Section 2
Under what circumstances does the Supreme
Court have “original jurisdiction”?
In all cases dealing with
• ambassadors, other public ministers and consuls
• a state government
In all the other cases
• the Supreme Court shall have appellate
jurisdiction
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Florida Court System
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Procedure
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Procedure
• The Supreme Court Term begins the first Monday in
October
• The Court divides its time into sessions of approximately
four weeks.
– “Sittings," two-week periods during which the Justices hear arguments
– “Recesses," the alternating two weeks where they hold conferences and
write opinions.
– The Justices may hear as many as 24 cases each sitting.
• The Justices actively hear arguments from October until
the end of April or early May using this rotating schedule
• During May and June, the Justices announce decisions
• From July through September, they read petitions for
writs of certiorari and discuss cases for the next term.
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Procedure
• Standing
• Writ of cert
– 7000 petitions
– 100 granted
• Expenses
– In forma pauperis
– Fee shifting
• Political Questions
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Standing to Sue
• There must be a real controversy between
adversaries
• Harm must be demonstrated
– Actual
– Personal
– Class actions
• Sovereign immunity
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Writs of Certiorari
• Most cases arrive through a writ of
certiorari
• Requires agreement of four justices to
hear the case
– Involves significant federal or constitutional
question
– Involves conflicting decisions by circuit courts
– Involves Constitutional interpretation by one of
the highest state courts
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• Brief
Procedure
– Stare Decisis
• Precedent
– Remedy
• Amicus Curiae
– ‘Friend of the Court’
• Oral Argument
–
–
–
–
–
Plaintiff
Defendant
Inquiry by Justices
Closing Arguments
Rebuttal
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The Supreme Court in Action
• Lawyers submit briefs that set forth the
facts of the case, summarizes the lower
court decision, gives the argument of their
side of the case citing appropriate
precedent, and suggests remedy
• Amicus Curiae briefs are submitted
• Oral arguments are given by lawyers after
briefs are submitted
• Justices then question the attorneys
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Inquisitorial and Adversarial Legal Systems
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Adversarial Systems
• In the ADVERSARIAL SYSTEM, two or more
opposing parties gather evidence
• The parties then present the evidence, and their
arguments, to a judge or jury.
• The judge or jury knows nothing of the litigation
until the parties present their cases to the
decision maker.
• The judge acts as a referee on points of law.
• The judge or jury determine both the verdict and
the remedy.
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My Cousin Vinny
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The Inquisitorial System
• In the INQUISITORIAL system, the presiding judge is not
a passive recipient of information.
• The judge actively steers the search for evidence and
questions the witnesses
• Attorneys play a more defensive role, suggesting
arguments and precedents and answering the judge’s
questions.
• The judge determines the verdict and the remedy.
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Inquisitorial and Adversarial Legal Systems
• The goal of both the adversarial system and the
inquisitorial system is to find the truth.
• The adversarial system
– seeks the truth by pitting the parties against each other in the
hope that competition will reveal it
– the adversarial system places a premium on the individual rights
of the accused
• The inquisitorial system
– seeks the truth by questioning those most familiar with the events
in dispute
– The inquisitorial systems places the rights of the accused
secondary to the search for truth.
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Inquisitorial and Adversarial Legal Systems
• While lower courts tend to be Adversarial, the Supreme
Court is more Inquisitorial.
• After opening arguments, Justices question and crossexamine the attorneys
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Picket Fences
THE FACTS
• Brian Latham was arrested for murder, and given his Miranda rights
by deputy Sherriff Ken Lakos.
• Latham requested an attorney.
• Latham met with his attorney, Douglas Wambaugh, who advised him
to keep silent.
• After Wambaugh left, Lakos began a conversation with Latham.
• Knowing Latham was a devout Catholic, Lakos asked Latham where
the body of the victim was so that she could receive last rites from a
priest.
• Latham told Lakos where to find the body.
• District Attorney Don Littleton prosecuted and obtained a conviction
and death penalty based on Latham’s implicit confession
• Wambaugh appealed to the Supreme Court.
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Picket Fences
THE LAW (Legal Precedent)
• Miranda v. Arizona, 1966, suspects must be
informed of their right to counsel and their right to remain
silent before interrogation.
• Brewer v. Williams, 1977, a person is entitled to the
help of a lawyer as soon as he is arrested
• Edwards v. Arizona, 1981, interrogation must stop
when a suspect invokes the right to counsel.
• Minnick v. Mississippi, 1990, when counsel is
requested, officials may not reinitiate interrogation without
counsel present whether or not the accused has already
consulted with his attorney.
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Wisconsin Court System
Supreme Court
•Seven justices elected statewide to 10-year terms
•Senior Justice sits as Chief Justice
Court of Appeals
Judges elected district wide to six-year terms
First court of appeal from Circuit Court
Circuit Court
•Judges elected countywide to six-year terms
•Jurisdiction includes felony crimes, contracts, and any civil matter which
significantly involves the state.
•First court of appeal from municipal courts
Municipal Court
•Judges chosen under local laws
•Jurisdiction includes county and municipal laws, personal injury, family law,
juvenile delinquency, probate, traffic, small claims, landlord-tenant issues, and
misdemeanor criminal law.
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Picket Fences
May It Please the Court
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Kinds of Court Opinions
• Per curiam: brief and unsigned
• Opinion of the court: majority opinion
• Concurring opinion: agrees with the ruling
of the majority opinion, but modifies the
supportive reasoning
• Dissenting opinion: minority opinion
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Development of the Federal Courts
• Most Founders probably expected judicial
review but did not expect the federal courts
to play such a large role in policy-making
• But the federal judiciary evolved toward
judicial activism, shaped by political,
economic, and ideological forces
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Judicial Review
• Judicial review: the right of the federal
courts to rule on the constitutionality of laws
and executive actions
• It is the chief judicial weapon in the checks
and balances system
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1789 to 1865
• Two issues: Federal power and Slavery
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Judicial Review
Marbury v. Madison (1803)
• The Supreme Court
has the power to
declare an act of
congress
unconstitutional.
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Marbury v. Madison
THE FACTS
• President John Adams was defeated by Thomas Jefferson in the
election of 1800.
• Fearing Jefferson would appoint ‘strict constructionist’ (states’ rights)
judges, Adams packed the court with 59 ‘midnight’ appointments
• The Adams administration delivered all but 17 of these.
• New Secretary of State James Madison refused to deliver the
remaining 17.
• William Marbury filed suit against Madison for a Writ of Mandamus
forcing him to appoint Marbury to a judicial seat.
• Marbury filed his lawsuit in the Supreme Court under the Judiciary Act
of 1789 giving the Supreme Court original jurisdiction on such Writs.
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Marbury v. Madison
THE DECISION
• Madison was obligated to respect appointments by the previous
administration.
• Federal Courts do have the power to issue Writs of Mandamus to
compel Federal officials to act
• BUT . . . .
• The Supreme Court could not issue the Writ in this case because the
Judiciary Act of 1789 was UNCONSTITUTIONAL
– The law states the Supreme Court has original jurisdiction on
Writs of Mandamus
– Article III of the Constitution does not explicitly list Writs of
Mandamus as the original jurisdiction of the Supreme Court
– The Supreme Court only has appellate jurisdiction in these cases.
– Congress cannot change the Constitution without amending it.
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Judicial Review
• Marbury v. Madison
“It is emphatically the
province and duty of
the judiciary to say
what the law is, and a
law repugnant to the
Constitution is void.”
-John Marshall
Chief Justice of the Supreme Court,
1801-1835
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Judicial Review
McCulloch v. Maryland (1819)
• Federal law is
supreme over state
law, and the power
granted to the federal
government should
be interpreted broadly
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McCulloch v. Maryland
THE FACTS
• The US congress passed a law in 1816 authorizing the creation of a
National Bank.
• The state of Maryland pass a law to tax all transactions of the
National Bank branch located in Maryland.
• James McCulloch, head of the Baltimore branch of the National Bank
refused to pay the tax.
• The state of Maryland filed in state court to compel McCulloch to pay.
• On appeal, the Maryland state Supreme Court held for Maryland
because the Constitution did not specifically state that the Federal
Government was authorized to charter a bank, the Bank of the United
States was unconstitutional.
• McCulloch appealed to the US Supreme Court
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McCulloch v. Maryland
THE DECISION
• Congress has the power to charter the bank
• The US Constitution is a social contract between all the citizens, and
therefore supersedes state sovereignty
• The Federal government, though limited, is supreme within its sphere
of action
• Therefore, the US Supreme Court could rule on the Constitutionality
of state laws
• Article I, section 8 explicitly gives the US congress the power to tax
and spend
• The ‘Necessary and Proper’ clause of the Constitution grants to
Congress implied powers for implementing the Constitution's express
powers as long as it is not explicitly forbidden by the Constitution
• Therefore, State action may not impede valid constitutional exercises
of power by the Federal government.
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Judicial Review
Would Marshall have
been considered an
activist or a strict
constructionist?
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Judicial Review
Dred Scott v Sanford, 1857
“[Blacks] must be regarded
as beings of an inferior
order, and altogether unfit
to associate with the white
race, and having no rights
which the white man was
bound to respect..”
-Roger Taney
Chief Justice of the Supreme Court,
1836-1864
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Dred Scott
THE FACTS
• Dred Scott, a slave from Missouri, was taken by his master to
Minnesota, a federal territory where slavery was illegal.
• Scott filed a lawsuit in federal court claiming that he was now free.
THE DECISION
• The enumerated powers of the Constitution do not include the
regulation of slavery
• All Federal laws prohibiting slavery were therefore unconstitutional
• Slaves are not citizens, they are property. Therefore
– they cannot file lawsuits
– And cannot be taken from their masters without due process and
adequate compensation
• Blacks are not citizens of the US and cannot ever be citizens
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Dred Scott
Justice McLean’s Dissent
• Article I, section 9 does imply
federal power to regulate slavery
• There is no Constitutional basis
for the claim that blacks cannot
be citizens.
• At the time of the ratification of
the Constitution, black men could
vote in ten of the thirteen states.
• This fact made them citizens not
only of their states but of the
United States.
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Judicial Review
US v Amistad, 1841
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Judicial Review
US v Amistad, 1841
•Pedro Montez and Jose Ruiz purchase 53 Amistads at auction in Havana.
•Evidence: Dated Bill of Sale
•Ruiz and Montez deliver the Amistads to the cargo ship Amistad for
carriage to a plantation near Puerto Principe in Cuba.
•Evidence: Personal Testimony and dated Bill of Receipt
•Cinque, Grabeau, Burnah, and Konomah organize a revolt, capture the
ship, and kill the entire crew with the exception of Ruiz, Montez, and the
Captain’s personal slave, Antonio.
•Evidence: Personal Testimony
•The Amistad is spotted and boarded off Long Island, NY, by the USS
Washington commanded by Capt. Thomas Gedney. The Amistad is
escorted it to New London, CT. The Amistads are taken to the New
Haven jail.
•Evidence: Personal Testimony, Arrest Records, Captain's Log
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Judicial Review
US v Amistad, 1841
1808 Federal Law
Slave importation illegal
(interstate trade still legal)
1788 Connecticut Law
Slavery abolished
1819 Federal Law
Africans rescued from slave ships are to be returned to Africa
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US v Amistad, 1841
Pinckney Treaty between US and Spain, 1795
Article VI
Agreement to protect each others vessels in territorial waters
Article VII
Agreement to extradite criminals to stand trial
Article IX
Agreement to return property seized by piracy or mutiny
Article X
Agreement to return property lost by shipwreck or storm
Article XX
Agreement to allow all parties full access to other’s courts of
law
Treaty Abolishing International Slave Trade 1817
Britain, US, France, Portugal, and Spain
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Judicial Review
US v Amistad, 1841
Montez and Ruiz file for return of their property.
Gedney et all file for salvage claims on the total property value of the Amistad,
including all slaves.
The Spanish Ambassador Calderon de la Barca makes a formal request to the
United States Department of State that the Africans be extradited to Spain to stand
trial for piracy, mutiny, and murder.
United States Secretary of State John Forsyth, at the request of President Van
Buren, files on behalf of Spain represented by District Attorney William
Holabird in court.
The Amistad Committee (The Anti-Slavery Society) of Lewis Tappan, Josiah
Gibbs, and Roger Baldwin filed charges of assault, kidnapping, and false
imprisonment against Ruiz and Montez, and for habeas corpus, requesting
freedom for the Amistads and their return to Africa. The abolitionists
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US v Amistad
THE DECISION
• The Circuit Court ruled that it lacked jurisdiction
as the issue took place on a Spanish ship in
Spanish waters, and therefore the case should be
extradited to Spain.
• The Amistads appealed
• The District Court ruled in favor of the Amistads,
stating that there were not property the moment
they set foot in Connecticut, and that therefore
they should be returned to Africa under the 1819
Federa. Law.
• The US appealed to the Supreme Court
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US v Amistad
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US v Amistad
THE DECISION
• The Africans in question were never legal property.
• They were not criminals, but "unlawfully kidnapped, and
forcibly and wrongfully carried on board a slave vessel".
• When Amistad came US waters, however, the Court
believed it to be in the possession of the Africans on
board. Therefore, Federal law did not apply, and the
President was not required to return the Amistads to
Africa.
• The Supreme Court ruled that the Amistad’s were born
free, and therefore free human beings who had the right
of self-defense against the crime of being kidnapped, but
that the US had no obligation to return them if they didn’t
want to go.
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US v Amistad
THE DECISION
• “ Upon the whole, our opinion is, that the decree of the
district court ought to be affirmed, except so far as it
directs the negroes to be delivered to the president, to be
transported to Africa, in pursuance of the Federal act of
the 3rd of March 1819; and as to this, it ought to be
reversed: and that the said negroes be declared to be
free, and be dismissed from the custody of the court, and
go without delay.[
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1865 to 1936
• The Supreme Court was supportive of
private property, but could not develop a
principle distinguishing between reasonable
and unreasonable regulation of business
• The Court interpreted the Fourteenth and
Fifteenth amendments narrowly as applied
to blacks—it upheld segregation, excluded
blacks from voting in many states
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1936 to Present
• The Court establishes tradition of deferring
to the legislature in economic regulation
cases
• The Warren Court provided a liberal
protection of rights and liberties against
government trespass
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Controversies
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Trouble Between the Branches?
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Arguments for Judicial Activism
• Courts should correct injustices when other
branches or state governments refuse to do
so
• Courts are the last resort for those without
the power or influence to gain new laws
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Arguments Against Judicial Activism
• Judges lack expertise in designing and
managing complex institutions
• Initiatives require balancing policy priorities
and allocating public revenues
• Courts are not accountable because judges
are not elected
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Checks on Judicial Power
• Judges have no enforcement mechanisms
• Confirmation and impeachment
proceedings
• Changing the number of judges
• Revising legislation
• Amending the Constitution
• Altering jurisdiction
• Restricting remedies
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Public Opinion and the Courts
• Defying public opinion frontally may be
dangerous to the legitimacy of the Supreme
Court, especially elite opinion
• Opinion in realigning eras may energize
court
• Public confidence in the Supreme Court
since 1966 has varied with popular support
for the government generally
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• What constitutes treason in this section 3?
• What is required to convict a person of treason?
• Why do you think Treason is the only specific crime that is mentioned
in the Constitution?
Section 3.
• Treason against the United States, shall consist only in levying war
against them, or in adhering to their enemies, giving them aid and
comfort. No person shall be convicted of treason unless on the
testimony of two witnesses to the same overt act, or on confession in
open court.
• The Congress shall have power to declare the punishment of treason,
but no attainder of treason shall work corruption of blood, or forfeiture
except during the life of the person attainted.
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