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Unit Six:
The Judicial Branch
Section 1:
Section 2:
Section 3:
Section 4:
Section 5:
Section 6:
Section 7:
Section 8:
Section 9:
The Federal Court System
The Supreme Court
How the Supreme Court Works
Influencing Court Decisions
Voting Rights and Equal Protection
Rights of the Accused and Civil Liberties
Law in America
Civil and Criminal Law
Section 1: The Federal Court System
■How does federal court jurisdiction differ from state court jurisdiction?
■How do Supreme Court decisions reflect the attempts of the justices to address changing society?
■How do constitutional courts and legislative courts differ in their jurisdiction?
■How are federal court justices chosen?
Jurisdiction of the Courts
The United States judiciary consists of parallel systems of federal and state courts. Each of the 50 states
has its own system of courts whose powers derive from state constitutions and laws. The federal court
system consists of the Supreme Court and lower federal courts established by Congress. Federal courts
derive their powers from the Constitution and federal laws.
Federal Court Jurisdiction
The authority to hear certain cases is called the jurisdiction of the court. In the dual court system, state
courts have jurisdiction over cases involving state laws, while federal courts have jurisdiction over cases
involving federal laws. Sometimes the jurisdiction of the state courts and the jurisdiction of the federal
courts overlap. The Constitution gave federal courts jurisdiction in cases that involve United States laws,
treaties with foreign nations, or interpretations of the Constitution. Federal courts also try cases involving
bankruptcy and cases involving admiralty or maritime (of the sea) law. Federal courts are also given the
jurisdictional authority to hear cases if certain parties or persons are involved. Examples of these include:
(l) ambassadors and other representatives of foreign governments; (2) two or more state governments; (3)
the United States government or one of its offices or agencies; (4) citizens who are residents of different
states; and (5) citizens who are residents of the same state but claim lands under grants of different states.
In most cases the difference between federal and state court jurisdiction is clear. In some instances,
however, both federal and state courts have jurisdiction, a situation known as concurrent jurisdiction.
Concurrent jurisdiction exists, for example, in a case involving citizens of different states in a dispute
concerning more than $75,000. In such a case, a person may sue in either a federal or a state court. If the
person being sued insists, however, the case must be tried in a federal court.
Original and Appellate Jurisdiction
The court in which a case is originally tried is known as a trial court. A trial court has original
jurisdiction. In the federal court system, the district courts as well as several other lower courts have only
original jurisdiction. If a person who loses a case in a trial court wishes to appeal a decision, he or she
may take the case to a court with appellate jurisdiction. The federal court system provides courts of
appeals that have only appellate jurisdiction. Thus, a party may appeal a case from a district court to a
court of appeals. If that party loses in the court of appeals, he or she may appeal the case to the Supreme
Court, which has both original and appellate jurisdiction.
Original Jurisdiction means the case can be brought to that court first, before being heard in a lower
court. Appellate Jurisdiction means the case can only be brought to that court after it has been heard in
a lower court and the decision has been appealed. Discretionary Jurisdiction means the court has the
power to decide whether to hear a particular case brought before it.
Developing Supreme Court Power
Since its creation by the Constitution, the Supreme Court has developed into the most powerful court in
the world. It may also be the least understood institution of American government. The role of the Court
has developed from custom, usage, and history.
Early Precedents
Certain principles were established early in the Court’s history. Neither the Supreme Court nor any
federal court may initiate action. A judge or justice may not seek out an issue to bring it to court. The
courts must wait for litigants, or people engaged in a lawsuit, to come before them. Federal courts will
only determine cases. They will not simply answer a legal question, regardless of how significant the
issue or who asks the question.
Marbury v. Madison
This case, on the surface, said that Congress was limited by the Constitution, but on a deeper level set the
precedent for greater Supreme Court authority in interpreting laws. When Chief Justice John Marshall
said that the Judiciary Act of 1789 had given the Court more power than the Constitution had allowed, he
secured for the Court the power to review acts of Congress— the power of judicial review.
States’ Rights Era and the Scott Case
In the1830s, the Court began to emphasize the rights of the states and the rights of citizens in an
increasingly democratic society. Then states’ rights became tied to the slavery issue. In Dred Scott v.
Sandford (1857) the court declared African Americans were not and could not be citizens and Congress
was powerless to stop the spread of slavery.
Post-Civil War Era
Following the Civil War the Supreme Court issued several rulings on the Thirteenth, Fourteenth, and
Fifteenth Amendments. These Reconstruction amendments were intended to ensure the rights and
liberties of newly freed African Americans, but the Court did not strongly apply the due process clause
of the Fourteenth Amendment when individuals challenged business or state interests. The due process
clause says that no state may deprive any person of life, liberty, or property without the due process of
law. In 1896 the Court upheld a Louisiana law that required railroads operating within the state to provide
separate cars for white and African American passengers. In Plessy v. Ferguson the Court established the
“separate but equal” doctrine, which held that if facilities for both races were equal, they could be
separate. This ruling would not be overturned until Brown v. Board of Education of Topeka in 1954.
The Court and Business
The Court had refused to broaden federal powers to enforce the rights of individuals. However, it seemed
willing to broaden the police power of the states to protect consumers from the growing power of
business. It held that some private property, such as a railroad, was invested with a public interest. A state
could properly exercise its power to regulate such property. More often, however, the Court sided with
business interests as the nation industrialized. During the Progressive era the Court upheld several federal
and state laws regulating business, but it returned to its support for business by the 1920s. In the 1930s the
Court began to uphold laws that regulated business.
Protecting Civil Liberties
The Supreme Court emerged as a major force in protecting civil liberties under Chief Justice Earl Warren,
who served from 1953 to 1969. In Brown v. Board of Education of Topeka, the Court outlawed
segregation in public schools. In several other cases the Court issued rulings that extended equal
protection in voting rights and the fair apportionment of representation in Congress and state legislatures.
In other cases the Warren Court applied due process requirements and Bill of Rights protections to
persons accused of crimes. Although the Court since then has not been as aggressive in advancing these
decisions, it has not overruled any major decision of the Warren Court. As the twentieth century drew to a
close, it was apparent that the Supreme Court had carved out considerable power to influence policy in
the United States. The legal views of the justices and their opinions on the various cases put before them
would determine how the Court would use that power.
Constitutional Courts
Courts established by Congress under the provisions of Article III of the Constitution are constitutional
courts. These courts include the federal district courts, the federal courts of appeals, and the United States
Court of International Trade.
Federal District Courts
Congress created district courts in 1789 to serve as trial courts. These districts followed state boundary
lines. As the population grew and cases multiplied, Congress divided some states into more than 1
district. Today the United States has 94 districts, with each state having at least 1 district court. United
States district courts are the trial courts for both criminal and civil federal cases. District courts use 2
types of juries in criminal cases. A grand jury, which usually includes 16 to 23 people, hears charges
against a person suspected of having committed a crime. If the grand jury believes there is sufficient
evidence to bring the person to trial, it issues an indictment—a formal accusation charging a person with
a crime. If the jury believes there is not sufficient evidence, the charges are dropped.
A petit jury, which usually consists of 6 or 12 people, is a trial jury. Its function is to weigh the evidence
presented at a trial in a criminal or civil case. In a criminal case, a petit jury renders a verdict of guilty or
not guilty. In a civil case, the jury finds for either the plaintiff, the person bringing the suit, or the
defendant, the person against whom the suit is brought. If the parties in a civil case do not wish a jury
trial, a judge or a panel of three judges weighs the evidence. District courts are the workhorses of the
federal judiciary, hearing hundreds of thousands of cases each year. This caseload represents more than
80 percent of all federal cases. District courts have jurisdiction to hear cases involving federal questions:
issues of federal statutory or constitutional law. They can also hear some cases involving citizens of
different states. In the vast majority of their cases, district courts render the final decision. Few are
Officers of the Court
Many appointed officials provide support services for district courts. Each district has a United States
attorney to represent the United States in all civil suits brought against the government and to prosecute
people charged with federal crimes. Each district court appoints a United States magistrate who issues
arrest warrants and helps decide whether the arrested person should be held for a grand jury hearing. A
bankruptcy judge handles bankruptcy cases for each district. A United States marshal carries out such
duties as making arrests, securing jurors, and keeping order in the courtroom. With the help of deputy
clerks, bailiffs, and a stenographer, a clerk keeps records of court proceedings.
Federal Courts of Appeals
Good records are important because a person or group that loses a case in a district court may appeal to a
federal court of appeals or, in some instances, directly to the Supreme Court. Congress created the United
States courts of appeals to ease the appeals workload of the Supreme Court. The caseload of appellate
courts has increased dramatically since 1980. The appellate level includes 13 United States courts of
appeals. The United States is divided into 12 judicial circuits, or regions, with 1 appellate court in each
circuit. The thirteenth court is a special appeals court with national jurisdiction. Usually, a panel of three
judges sits on each appeal. In a very important case, all of the circuit judges may hear the case.
As their name implies, the courts of appeals have only appellate jurisdiction. The courts of appeals may
decide an appeal in one of three ways: uphold the original decision, reverse that decision, or send the case
back to the lower court to be tried again. Unless appealed to the Supreme Court, decisions of the courts of
appeals are final.
The Court of International Trade
Formerly known as the United States Customs Court, this court has jurisdiction over cases dealing with
tariffs. Citizens who believe that tariffs are too high bring most of the cases heard in this court. The Court
of International Trade is based in New York City, but it is a national court. The judges also hear cases in
other major port cities around the country such as New Orleans and San Francisco. The Circuit Court of
Appeals for the Federal Circuit hears decisions appealed from this court.
Legislative Courts
Along with the constitutional federal courts, Congress has created a series of courts referred to as
legislative courts. As spelled out in Article I of the Constitution, the legislative courts help Congress
exercise its powers. Thus, it was the power of Congress to tax that led to the creation of the United States
Tax Court. The congressional power of regulating the armed forces led to the formation of the Court of
Military Appeals.
U.S. Court of Federal Claims
Established in 1982, the U.S. Court of Federal Claims is a court of original jurisdiction that handles
claims against the United States for money damages. A person who believes that the government has not
paid a bill for goods or services may sue in this court.
United States Tax Court
Acting under its power to tax, Congress provided for the present Tax Court. As a trial court, it hears cases
relating to federal taxes. Cases come to the Tax Court from citizens who disagree with Internal Revenue
Service rulings or other Treasury Department agency rulings about the federal taxes they must pay. The
Tax Court is based in Washington, D.C., but it hears cases throughout the United States. A federal court
of appeals handles cases appealed from the Tax Court.
Foreign Intelligence Surveillance Court
Congress created this court in 1978 as part of the Foreign Intelligence Security Act (FISA). The court was
authorized to secretly wiretap people suspected of spying against the United States. In the 2001 USA
Patriot Act, Congress gave the court a four-year authorization to approve wiretaps and searches of anyone
suspected of “terrorism or clandestine activities.” FISA search warrants do not have to be made public
and can be issued without probable cause, which is not the case with most criminal cases.
Selection of Federal Judges
Article II, Section 2, of the Constitution provides that the president, with the advice and consent of the
Senate, appoints all federal judges. The legal profession regards a position on the federal bench as
recognition of a lawyer’s high standing in the profession. Judges in the constitutional courts serve, as the
Constitution prescribes, “during good behavior,” which, in practice means for life. A life term grants
judges freedom from public or political pressures when deciding cases.
Party Affiliation
Presidents favor judges who belong to their own political party. Another factor that emphasizes the
political nature of court appointments is the power of Congress to increase the number of judgeships.
Studies have shown that when one party controls both the presidency and Congress, it is more likely to
increase the number of judicial posts.
Judicial Philosophy
Because judges are appointed for life, presidents view judicial appointments as a means of perpetuating
their political ideologies even after they have left the White House. This fact has made judicial
appointments a political issue rather than merely a matter of assessing a judicial candidate’s
Senatorial Courtesy
In naming judges to trial courts, presidents customarily follow the practice of senatorial courtesy. Under
the senatorial courtesy system, a president submits the name of a judicial candidate to the senators from
the candidate’s state before submitting it for formal Senate approval. If either or both senators oppose the
nominee, the president usually withdraws the name and nominates another candidate. The practice of
senatorial courtesy is limited to the selection of judges to the district courts and other trial courts. It is not
followed in the case of nominations to the courts of appeals and the Supreme Court. Circuit courts of
appeals cover more than one state, so that an appointment to this court is regional in nature. A position on
the Supreme Court is a national selection rather than a statewide or a regional one.
The Background of Federal Judges
Almost all federal judges have had legal training and have held a variety of positions in law or
government including service as law school professors, members of Congress, leading attorneys, and
federal district attorneys. Until very recently few women, African Americans, or Hispanics were
appointed as judges in the lower federal courts. President Lyndon Johnson appointed Thurgood Marshall
the first African American justice to the Supreme Court. President Ronald Reagan appointed Sandra Day
O’Connor the first female justice to the Supreme Court. President Barack Obama appointed Sonia
Sotomayor the first Latino/Latina to the Supreme Court.
Section 2: The Supreme Court
■Why does the Supreme Court hear very few cases under its original jurisdiction?
■What political influences affect the selection of Supreme Court justices?
The Supreme Court stands at the top of the American legal system. Article III of the Constitution created
the Supreme Court as one of three coequal branches of the national government, along with Congress and
the president. The Supreme Court is the court of last resort in all questions of federal law. The Court is
not required to hear all cases presented before it, and carefully chooses the cases it will consider. It has
final authority in any case involving the Constitution, acts of Congress, and treaties with other
nations. Most of the cases the Supreme Court hears are appeals from lower courts. The decisions of the
Supreme Court are binding on all lower courts. Today the Court hears all its cases in the Supreme Court
building in Washington, D.C.
Supreme Court Jurisdiction
The Supreme Court has both original and appellate jurisdiction. Article III, Section 2, of the Constitution
sets the Court’s original jurisdiction. It covers two types of cases: (1) cases involving representatives of
foreign governments and (2) certain cases in which a state is a party. Congress may not expand or curtail
the Court’s original jurisdiction. Many original jurisdiction cases have involved two states or a state and
the federal government. The Supreme Court’s original jurisdiction cases form a very small part of its
yearly workload— an average of fewer than five such cases a year. Most of the cases the Court decides
fall under the Court’s appellate jurisdiction. Under the Supreme Court’s appellate jurisdiction, the Court
hears cases that are appealed from lower courts of appeals, or it may hear cases from federal district
courts in certain instances where an act of Congress was held unconstitutional. The Supreme Court may
also hear cases that are appealed from the highest court of a state, if claims under federal law or the
Constitution are involved. In such cases, however, the Supreme Court has the authority to rule only on the
federal issue involved, not on any issues of state law. A state court, for example, tries a person charged
with violating a state law. During the trial, however, the accused claims that the police violated
Fourteenth Amendment rights with an illegal search at the time of the arrest. The defendant may appeal to
the Supreme Court on that particular constitutional issue only. The Supreme Court has no jurisdiction to
rule on the state issue (whether the accused actually violated state law). The Court will decide only
whether Fourteenth Amendment rights were violated.
Supreme Court Justices
The Supreme Court is composed of 9 justices: the chief justice of the United States and 8 associate
justices. Congress sets this number and has the power to change it. In a recent year the eight associate
justices received salaries of $173,600. The chief justice received a salary of $181,400. Congress sets the
justices’ salaries and may not reduce them. Under the Constitution, Congress may remove Supreme Court
justices through impeachment for and conviction of “treason, bribery, or other high crimes and
misdemeanors.” No Supreme Court justice has ever been removed from office through impeachment,
Duties of the Justices
The Constitution does not describe the duties of the justices. Instead, the duties have developed from
laws, through tradition, and as the needs and circumstances of the nation have developed. The main duty
of the justices is to hear and rule on cases. This duty involves them in three decision-making tasks:
deciding which cases to hear from among the thousands appealed to the Court each year; deciding the
case itself; and determining an explanation for the decision, called the Court’s opinion. The chief justice
has several additional duties such as presiding over sessions and conferences at which the cases are
discussed. The chief justice also carries out a leadership role in the Court’s judicial work and helps
administer the federal court system. The justices also have limited duties related to the 12 federal judicial
circuits. One Supreme Court justice is assigned to each federal circuit. Occasionally, justices take on
additional duties as their workload permits. In 1963 Chief Justice Earl Warren headed a special
commission that investigated the assassination of President Kennedy. To maintain their objectivity on the
bench, justices are careful not to become involved in outside activities that might prevent them from
dealing fairly with one side or the other on a case. If justices have any personal or business connection
with either of the parties in a case, they usually disqualify themselves from participating in that case.
Appointing Justices
Justices reach the Court through appointment by the president with Senate approval. The Senate usually
grants such approval, and presidents with strong support in the Senate are less likely to have their
candidates rejected, but there is no guarantee. The Senate even chose to reject one of President
Washington’s nominees. As is the case with lower court judges, political considerations often affect a
president’s choice of a nominee to the Court. Usually presidents will choose someone from their own
party, sometimes as a reward for faithful service to the party. But presidents must be careful to nominate
people who are likely to be confirmed by the Senate. Presidents prefer to nominate candidates whose
political beliefs they believe are similar to their own. However, several presidents have discovered that it
is very difficult to predict how an individual will rule on sensitive issues once he or she becomes a
member of the Court. When President Eisenhower named Earl Warren as chief justice in 1953, he
expected Warren to continue to support the rather conservative positions he had taken as governor of
California. The Warren Court, however, turned out to be the most liberal, activist Court in the country’s
The Role of the American Bar Association
The American Bar Association (ABA) is the largest national organization of attorneys. The role of the
ABA is solely to evaluate the professional qualifications of candidates for all Article III judicial
positions— the Supreme Court, the United States Courts of Appeals, and the United States District
Courts. The committee rates nominees as either “well qualified,” “qualified,” or “not qualified.” The
ABA rating is advisory, and neither the president nor the Senate is required to follow it.
The Role of the Justices
Members of the Supreme Court sometimes have considerable influence in the selection of new justices.
As leaders of the Court, chief justices have often been very active in the selection process. Justices who
must work with the newcomers often participate in selecting candidates. They may write letters of
recommendation supporting candidates who have been nominated, or they may lobby the president for a
certain candidate.
Supreme Court Justices
Chief Justice
John Roberts
Ruth Bader Ginsburg
(G.W. Bush)
Antonin Scalia
Stephen Breyer
Anthony Kennedy
Sonia Sotomayor
Clarence Thomas
Elena Kagan
(G.H. Bush)
Samuel Alito
(G.W. Bush)
Section 3: How the Supreme Court Works
■By what route do most cases from other courts reach the Supreme Court?
■What are the main steps the Supreme Court takes in deciding cases?
■Does the Court’s judicial review give it too much power compared to that of the other branches?
■By what means is the Supreme Court limited in its power?
The Court’s Procedures
During the term the Court sits for two consecutive weeks each month. At these sittings the justices listen
to oral arguments by lawyers on each side of the cases before them. Later they announce their opinions on
cases they have heard. The Court hears oral arguments from Monday through Wednesday. On
Wednesdays and Fridays the justices meet in secret conferences to decide cases. After a two-week sitting,
the Court recesses and the justices work privately on paperwork. They consider arguments in cases they
have heard and study petitions from plaintiffs who want the Court to hear their cases. They also work on
opinions—written statements on cases they have already decided.
The Court has time to grant review to only about 1 percent of appealed cases. In the opinions that
accompany this small number of cases, the Court sets out general principles that apply to the nation as
well as to the specific parties in the case. It is mainly through these cases that the Court interprets the law
and shapes public policy.
How Cases Reach the Court
Some cases begin at the Supreme Court because they fall under its original jurisdiction. The vast majority
of cases, however, reach the Supreme Court only as appeals from lower court decisions. These cases
come to the Supreme Court in one of two ways—on appeal or by writ of certiorari.
Writ of Certiorari
The main route to the Supreme Court is by a writ of certiorari (SUHR • shee • uh • RAR• ee)—an order
from the Court to a lower court to send up the records on a case for review. The party seeking review
petitions the Court for certiorari and must argue either that the lower court made a legal error in handling
the case or that the case raises a significant constitutional issue. The Supreme Court is free to choose
which cases it will consider, and it rejects more than 90 percent of requests for certiorari. Denial of
certiorari does not necessarily mean that the justices agree with the lower court’s decision. Instead, they
may see the case as not being important enough to the public welfare to reconsider. Whatever the reason,
when the Court denies certiorari, the lower court’s decision stands.
On Appeal
Certain cases reach the Court on appeal, meaning that the decision of a lower federal or state court has
been requested to be reviewed. In most cases, an appeal results from instances in which a lower court has
ruled a law unconstitutional or dismissed the claim that a state law violates federal law or the
Constitution. Few cases actually arrive on appeal, and the Court dismisses many of them.
When a case is dismissed, the decision of the lower court becomes final.
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The Solicitor General
Close to half of the cases decided by the Supreme Court involve the federal government in the suit. The
solicitor general is appointed by the president and represents the federal government before the Supreme
Court. The solicitor general serves as a link between the executive branch and the judicial branch.
Presidents expect their solicitor general to support the administration’s views on major legal questions.
The solicitor general plays a key role in setting the Court’s agenda by determining whether the federal
government should appeal lower federal court decisions to the Supreme Court.
Selecting Cases
When petitions for certiorari come to the Court, the justices or their clerks identify cases worthy of
serious consideration, and the chief justice puts them on a “discuss list” for all the justices to consider.
Almost two-thirds of all petitions for certiorari never make it to the discuss list. At the Court’s Friday
conferences, the chief justice reviews the cases on the discuss list. Then the justices—armed with memos
from their clerks, other information on the cases, and various law books—give their views. In deciding to
accept a case, the Court operates by the “rule of four.” If four of the nine justices agree to accept the
case, the Court will do so. When the justices accept a case, they also decide whether to ask for more
information from the opposing lawyers or to rule quickly on the basis of written materials already
available. If the Court rules without consulting new information, the ruling may be announced with a per
curiam (puhr KYUR• ee • AHM) opinion—a brief, unsigned statement of the Court’s decision.
Steps in Deciding Major Cases
The Supreme Court follows a set procedure when hearing important cases. Much of this activity goes on
behind the scenes, with only a small part taking place in an open courtroom.
Submitting Briefs
After the Court accepts a case, the lawyers on each side submit a brief. A brief is a written statement
setting forth the legal arguments, relevant facts, and precedents supporting one side of a case. Parties not
directly involved in the case but who have an interest in its outcome may also submit written briefs.
Called amicus curiae (uh • mee • kuhs KYUR • ee • EYE)—or “friend of the court”—briefs, they come
from individuals, interest groups, or government agencies claiming to have information useful to the
Court’s consideration of the case. Sometimes the briefs present new ideas or information. More often,
however, they are most useful for indicating which interest groups are on either side of an issue.
Oral Arguments
After briefs are filed, a lawyer for each side is asked to present an oral argument before the Court. Each
side is allowed 30 minutes to summarize the key points of its case. Justices often interrupt the lawyer
during his or her oral presentation, sometimes challenging a statement or asking for further information.
The lawyer speaks from a lectern that has a red light and a white light. The white light flashes 5 minutes
before the lawyer’s time is up. When the red light comes on, the lawyer must stop talking immediately.
The Conference
On Wednesdays and Fridays the justices meet to discuss the cases they have heard. The nine justices
come into the conference room and, by tradition, each shakes hands with the other eight. Everyone else
leaves. Then one of the most secret meetings in Washington, D.C., begins. For the next several hours, the
justices debate the cases. No meeting minutes are kept. The chief justice presides over the discussion of
each case and usually begins by summarizing the facts of the case and offering recommendations for
handling it. In the past the justices discussed cases in detail. Today the Court’s heavy caseload allows
little time for such debates. Instead, each decision gets about 30 minutes of discussion. Cases being
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considered for future review each get about 5 minutes. The chief justice merely asks each associate
justice, in order of seniority, to give his or her views and conclusions. Then the justices vote. Each
justice’s vote carries the same weight. A majority of justices must be in agreement to decide a case, and at
least six justices must be present for a decision. If a tie occurs, the lower court decision is left standing.
The Court’s vote at this stage, however, is not necessarily final.
Writing the Opinion
For major cases the Court issues at least one written opinion. The opinion states the facts of the case,
announces the Court’s ruling, and explains its reasoning in reaching the decision. These written opinions
are as important as the decision itself. Not only do they set precedent for lower courts to follow in future
cases, but they also are the Court’s way to communicate with Congress, the president, interest groups, and
the public. The Court issues four kinds of opinions. In a unanimous opinion, all justices vote the same
way. About one-third of the Court’s decisions are unanimous. A majority opinion expresses the views of
the majority of the justices on a case. One or more justices who agree with the majority’s conclusions
about a case (but agree for different reasons) write a concurring opinion. A dissenting opinion is the
opinion of justices on the losing side in a case. Because the Court does change its mind on issues, a
dissenting opinion may even become the majority opinion on a similar issue many years later. If the chief
justice has voted with the majority on a case, he or she assigns someone in the majority to write the
opinion. When the chief justice is in the minority, the most senior associate justice among the majority
assigns one of the justices on that side of the case to write the majority opinion.
Public policy established from a case may depend in large part on who writes the opinion. For this reason,
chief justices often assign opinions in very important cases to themselves or to a justice whose views on
the case are similar to their own. While finalizing the written opinions, the Court is still selecting and
hearing new cases.
Tools for Shaping Policy
Congress makes policy by passing laws. The president shapes policy by carrying out laws and by drawing
up the national budget. As the Supreme Court decides cases, it determines policy in three ways. These
include: (l) using judicial review, (2) interpreting the meaning of laws, and (3) overruling or reversing its
previous decisions. Under Chief Justice Earl Warren in the 1950s, the Court took a stand far in advance of
public opinion. The cases seemed to contain more and more public policy. It seemed the Court had
become an agent of change.
Judicial Review
The Supreme Court’s power to examine the laws and actions of local, state, and national governments and
to cancel them if they violate the Constitution is called judicial review. The Supreme Court first assumed
the power of judicial review and ruled an act of Congress unconstitutional in the case of Marbury v.
Madison in 1803. Since then, the Court has invalidated close to 200 provisions of federal law. This
number may seem insignificant when compared to the thousands of laws Congress has passed, but when
the Court declares a law unconstitutional, it often discourages the passage of similar legislation for years.
In addition, some of these rulings have had a direct impact on the nation’s direction.
The Supreme Court may also review presidential policies. For example, the Court has limited the
president’s power to impound, or refuse to spend, money Congress has appropriated. The Supreme Court
exercises judicial review most frequently at the state and local levels. In recent years the Court has used
judicial review to significantly influence public policy at the state level in the areas of racial
desegregation, reapportionment of state legislatures, and police procedures. Judicial review of state laws
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and actions may have as much significance as the Court’s activities at the federal level. For example, in
Miranda v. Arizona 6 (1966), the Court ruled that police had acted unconstitutionally and had violated a
suspect’s rights. The Miranda decision brought major changes in law enforcement policies and
procedures across the nation.
Interpretation of Laws
Another way that the Court shapes public policy is by interpreting existing federal laws. Congress often
uses very general language in framing laws, leaving it to the executive or judicial branch to apply the law
to a specific situation. The Supreme Court, in the end, decides what Congress means, and the impact of its
rulings is felt across the nation. Major acts of Congress, such as the Interstate
Commerce Act, have come before the Court repeatedly in settling disputes.
Overturning Earlier Decisions
One of the basic principles of law in making judicial decisions is stare decisis (STEHR • ee dih • SY •
suhs)—a Latin term that means “let the decision stand.” Under this principle, once the Court rules on a
case, its decision serves as a precedent, or model, on which to base other decisions in similar cases. This
principle is important because it makes the law predictable. If judges’ decisions were unpredictable from
one case to another, what was legal one day could be illegal the next. On the other hand, the law needs to
be flexible and adaptable to changing times, social values and attitudes, and circumstances. Flexibility
exists partly because justices sometimes change their minds. Also, new justices may bring different legal
views to the Court and, over time, shift its position on some issues. A perfect example is the Supreme
Court overturning the Plessy v. Ferguson ruling of 1896 with their decision in Brown v. Board in 1954.
Limits on the Supreme Court
Despite its importance, the Court does not have unlimited powers. Restrictions on the types of issues and
kinds of cases the Court will hear, limited control over its own agenda, lack of enforcement power, and
the system of checks and balances curtail the Court’s activities.
Limits on Types of Issues
Despite the broad range of its work, the Court does not give equal attention to all areas of national policy.
For example, the Court has played only a minor role in making foreign policy. Over the years most
Supreme Court decisions have dealt with civil liberties, economic issues, federal legislation and
regulations, due process of law, and suits against government officials. Civil liberties cases tend to
involve constitutional questions and make up the bulk of the Court’s cases. Appeals from prisoners to
challenge their convictions, for example, account for about one-fourth of the Court’s decisions. Most of
these cases concern constitutional issues, such as the right to a fair trial and the proper use of evidence.
Many of the Court’s other cases deal with economic issues such as government regulation of business,
labor-management relations, antitrust laws, and environmental protection. The Court also spends time
resolving disputes between the national government and the states or between two states.
Limits on Types of Cases
The Supreme Court has developed many rules and customs over the years. As a result, the Court will hear
only cases that meet certain criteria. First, the Court will consider only cases where its decision will make
a difference. It will not hear a case merely to decide a point of law. Further, unlike courts in some
countries, the Supreme Court will not give advisory opinions—a ruling on a law or action that has not
been challenged. Second, the plaintiff—the person or group bringing the case—must have suffered real
harm. It is not enough for people merely to object to a law or an action because they think it is unfair.
Plaintiffs must show that the law or action being challenged has harmed them. Third, the Court accepts
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only cases that involve a substantial federal question. The legal issues in dispute must affect many people
or the operation of the political system itself. Finally, the Court has traditionally refused to deal with
political questions—issues the Court believes the executive or legislative branches should resolve. In the
2000 presidential election, however, the Court for the first time heard two cases involving the recounting
of votes in the state of Florida. In the end, the difference between a political question and a legal question
is whatever the Court determines it to be.
Limited Control Over Agenda
A third limit on the Supreme Court’s power to shape public policy is that with few exceptions it can
decide only cases that come to it from elsewhere in the legal system. As a result, events beyond the
Court’s control shape its agenda. Of course, the Court can and does signal its interest in a subject by
deliberately taking on a specific case. Still, even when the Court wishes to rule in an area, it may have to
wait years for the right case in the proper context to come along.
Lack of Enforcement Power
A fourth factor limiting the Court’s power to shape public policy is the Court’s limited ability to enforce
its rulings. During the1960s some officials, ranging from school principals to judges to governors, sought
ways to avoid Court rulings on integrating schools. President Eisenhower had to send troops to Arkansas
to enforce the Brown v. Board ruling. Moreover, the Supreme Court simply is not able to closely monitor
the millions of trial decisions throughout the United States to make sure its rulings are followed.
Nevertheless, most Court decisions are accepted and generally enforced.
Checks and Balances
The Constitution provides that the legislative and executive branches of the national government have
several ways to try to influence or check the Supreme Court’s power. These checks include the
president’s power to appoint justices, the Senate’s power to approve appointments, and Congress’s power
to impeach and remove justices. The system of checks and balances is a process that the Framers intended
would both monitor and protect the integrity of the Court.
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Section 4: Influencing Court Decisions
■How do relationships among the justices affect the Supreme Court?
■What are the various external influences on Supreme Court decisions?
Basing Decisions on the Law
Law is the foundation for deciding cases that come before the Supreme Court. Justices, like other people,
often hold strong opinions on issues that come before them. In the end, however, they must base their
decisions on principles of law, and not simply on their personal opinions. Laws and the Constitution,
however, are not always clear in their meaning. If they were, a Supreme Court would not be needed. The
First Amendment, for example, prohibits any law “abridging freedom of speech,” but does this right
provide absolute freedom or do limits exist? Does freedom of speech mean that a person has the right to
falsely cry “Fire” in a crowded theater? The Fourth Amendment prohibits unreasonable searches and
seizures, but what is unreasonable? Can tapping a person’s telephone be considered an unreasonable
Most of the cases the Supreme Court is asked to rule on involve difficult questions like these. Where the
meaning of a statute or a provision of the Constitution is not clear, the justices of the Court must interpret
the language, determine what it means, and apply it to the circumstances of the case. In interpreting the
law, however, justices are not free to give it any meaning they wish. They must relate their interpretations
logically to the Constitution itself, to statutes that are relevant to the case, and to legal precedents. The
Court explains, in detail, the legal principles behind any new interpretation of the law.
Views of the Justices
Supreme Court justices, like other political figures, are people with active interests in important issues.
Some justices, for example, may believe that individual rights must be protected at almost all costs, even
if that means a few criminals may go unpunished. Other justices may be more concerned about rising
crime rates. They may feel that a little loss of freedom from wiretaps or stop-and- frisk laws is acceptable
if it helps curb crime. Over the years some justices become identified with specific views on certain
issues. Because most justices take consistent positions in areas of personal concern, voting blocs, or
coalitions of justices, exist on the Court on certain kinds of issues. In recent years one group of justices
has consistently tended toward liberal positions on civil rights and economic issues. A different bloc has
consistently tended to take more conservative positions on the same issues. When justices retire and new
appointees take their places, the size and power of each bloc may change. A majority bloc on certain
issues may gradually become the minority bloc. If the Court is badly split over an issue, a justice whose
views are not consistent with either bloc may represent a swing vote, or the deciding vote. When new
justices are appointed, the Court sometimes overturns precedents and changes direction in its
Relations Among the Justices
Today the justices work almost the entire year and live with their families in or near Washington,
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D.C. The justices communicate with one another mostly in writing: Indeed, a justice may go through an
entire term without being once in the chambers of all the other eight members of the Court. Despite the
lack of frequent interaction, the quality of personal relations among the justices influences the Court’s
decision making. A Court marked by harmony is more likely to agree on decisions than one marked by
personal antagonisms. Justices who can work easily with one another will be more likely to find common
solutions to problems. Even when justices are at odds with one another, they will try to avoid open
conflict. Relatively good personal relations among justices who disagreed strongly on legal issues marked
some modern Courts. At other times severe personal conflicts have seriously divided the Court.
Influence of the Chief Justice
The chief justice has several powers that can be used to influence the Court’s decisions. In presiding over
the Court during oral arguments and in conference, the chief justice can direct discussion and frame
alternatives. In addition, the chief justice makes up the first version of the discuss list and assigns the
writing of opinions to the justices. These advantages do not necessarily guarantee leadership by a chief
justice. Supreme Court chief justices must make skillful use of the tools of influence available to them if
they are to be effective leaders and shape the Court’s decisions. The chief justice can also influence the
amount of personal conflict that might exist on the Court.
The Court and Society
The Court is insulated from society due to lifetime tenure of the justices and from rules that limit the way
interest groups may try to influence the Court. Still, the Supreme Court does not exist in a vacuum. The
justices are interested in the Court’s prestige and in maintaining as much public support as possible. In
addition, the justices are part of society and are affected by the same social forces that shape public
Concern for Public Support
As already noted, the Court relies on the cooperation and goodwill of others to enforce its decisions. The
justices recognize that the Court’s authority and power depend in part on public acceptance of and support
for its decisions. They know that when the Court moves too far ahead or lags too far behind public
opinion, it risks losing valuable public support and may weaken its own authority.
Influence of Social Forces
The values and beliefs of society influence Supreme Court justices. As society changes, attitudes and
practices that were acceptable in one era may become unacceptable in another. In time the Court’s
decisions will usually reflect changes in American society, providing another reason why the Court
sometimes reverses its earlier decisions. The Brown v .Board ruling is an example of this kind of change.
Balancing the Court’s Power
The judicial branch, like the two other branches of the national government, operates within the system of
separation of powers and checks and balances. Thus, the powers of Congress and the president affect the
Supreme Court’s decisions.
The President’s Influence
A president’s most important influence over the Court is the power to appoint justices, with Senate
consent. Presidents generally use this appointment power to choose justices who seem likely to bring the
Court closer to their own philosophy. The importance of being able to make even a single Court
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appointment can be decisive when the votes of only one or two justices can swing the direction of Court
decisions. Presidents may also exercise influence with the Court in less formal ways. As head of the
executive branch, the president plays a role in enforcing Court decisions. Executive departments and
agencies must enforce Court decisions in such areas as integration and equal employment opportunity if
they are to have any impact. An administration may enforce such Court decisions vigorously or with little
enthusiasm, depending on its views on these issues.
The Influence of Congress
The system of checks and balances can also be used to try to shape the Court’s decisions. Congress can
pass laws to try to limit the Court’s options in ordering remedies. Also, after the Court has rejected a law,
Congress may reenact it in a different form, hoping that the justices will change their minds. Congress
also may propose a constitutional amendment to overturn a Court ruling. This strategy has been used
successfully several times. Another way Congress exercises power over the Court is through its right to
set the justices’ salaries. Although Congress cannot reduce the justices’ salaries, at times it has shown its
anger toward the Court by refusing the justices raises. Congress also sets the number of justices on the
Court. Finally, in recent years the Senate has used its confirmation power to shape the Court’s position.
When the president nominates someone to the Court, the Senate scrutinizes the nominee’s attitudes about
sensitive social issues. Judging the nominee’s stand on selected issues has given Congress increased
power to influence the direction the Court will take in shaping public policy.
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Section 5: Citizenship
■How does the United States classify noncitizens?
■How has immigration policy in the United States changed over time?
■What are the requirements for citizenship in the United States?
■What are the main responsibilities of American citizens?
Duties of citizens include obeying the law, paying taxes, and being loyal to the American government and
its basic principles. As participants in government, citizens have the responsibility to be informed, vote,
respect the rights and property of others, and respect different opinions and ways of life. Concerned
citizens must be willing to exercise both their rights and their responsibilities.
National Citizenship
Over the years the basis of citizenship has changed significantly in the United States. Today citizenship
has both a national and state dimension. This was not always so, however. The articles of the Constitution
mention citizenship only as a qualification for holding office in the federal government. The Founders
assumed that the states would decide who was, or was not, a citizen, and their citizens were also citizens
of the United States. The exceptions were African Americans and immigrants who became United States
citizens through naturalization, the legal process by which a person is granted the rights and privileges
of a citizen.
Dred Scott v. Sandford
The basis of state citizenship was at stake in the controversial Dred Scott v. Sandford case in 1857. The
Court reasoned that African Americans, whether enslaved or free, were not United States citizens at the
time the Constitution was adopted. Therefore, they could not claim citizenship. Only descendants of
people who were state citizens at that time, or immigrants who became citizens through naturalization,
were United States citizens. The Court also stated that Congress could not forbid slavery in United States
The Fourteenth Amendment
The Fourteenth Amendment to the Constitution overruled the Dred Scott decision. The amendment
clearly established what constitutes citizenship at both the national and state levels of government. The
Fourteenth Amendment was clear and forceful about the basis of citizenship. The Fourteenth Amendment
guaranteed that people of all races born in the United States and subject to its government are citizens,
making state citizenship an automatic result of national citizenship.
Citizenship by Birth
The Fourteenth Amendment set forth two of the three basic sources of United States citizenship—birth on
American soil and naturalization. The third source of citizenship is being born to a parent who is a United
States citizen. Like most other nations, the United States follows the principle of jus soli (YOOS SOH•
LEE), a Latin phrase that means “law of the soil.” Jus soli, in effect, grants citizenship to nearly all people
born in the United States or in American territories. Birth in the United States is the most common basis
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of United States citizenship. Another method of automatic citizenship is birth to an American parent or
parents. This principle is called jus sanguinis (YOOS SAHN • gwuh• nuhs), which means the “law of
blood.” The rules governing jus sanguinis can be very complicated. If an individual is born in a foreign
country and both parents are United States citizens, the child is a citizen, provided one requirement is met.
One of the parents must have been a legal resident of the United States or its possessions at some point in
his or her life. If only one of the parents is an American citizen, however, that parent must have lived in
the United States or an American possession for at least 5 years.
Citizenship by Naturalization
All immigrants who wish to become American citizens must go through naturalization. At the end of that
process, they will have almost all the rights and privileges of a native-born citizen. The major exception is
that a naturalized citizen is not eligible to serve as president or vice president of the United States.
Congress has defined specific qualifications and procedures for naturalization. These include a residency
requirement that immigrants must satisfy before they can even apply to become citizens. The U.S.
Bureau of Citizenship and Immigration Services, a bureau of the Department of Homeland Security,
administers most of the key steps of the naturalization process.
Qualifications for Citizenship
Immigrants who want to become citizens must meet five requirements. (1) Applicants must have entered
the United States legally. (2) They must be of good moral character. (3) They must declare their support
of the principles of American government. (4) They must prove they can read, write, and speak English.
(5) They must show some basic knowledge of American history and government. Draft evaders, military
deserters, polygamists, anarchists, Communists, or followers of any other totalitarian system will be
denied citizenship.
Losing Citizenship
Only the federal government can both grant citizenship and take it away. Americans can lose their
citizenship in any of three ways: through expatriation, by being convicted of certain crimes, or through
denaturalization. The simplest way to lose citizenship is through expatriation, or giving up one’s
citizenship by becoming a naturalized citizen of another country. A person automatically loses his or her
American citizenship in this case. A person may lose citizenship when convicted of certain federal crimes
that involve extreme disloyalty. These crimes include treason, participation in a rebellion, and attempts to
overthrow the government through violent means. The loss of citizenship through fraud or deception
during the naturalization process is called denaturalization.
The Responsibilities of Citizens
Responsible citizens need to know about the laws that govern society and to be aware of their basic legal
rights. Respect for the law is crucial in modern society, but this respect depends on knowledge of the law.
Also, the American ideal of citizenship has always stressed each citizen’s responsibility to participate in
political life. Through participation, citizens help govern society and themselves and are able to fashion
policies in the public interest. Through participation, individuals can put aside personal concerns and
learn about one another’s political goals and needs. In short, participation teaches about the essentials of
democracy—majority rule, individual rights, and the rule of law. The most common way a citizen
participates in political life is by voting. Exercising this right is the only way of ensuring their strength
and vitality.
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Section 6: Voting Rights and Equal Protection
■Why did it take so long for African Americans and for women to win voting rights?
■What did each of the voting rights acts achieve?
■What is the constitutional meaning of “equal protection”?
■How has the Court applied the equal protection clause to the issue of discrimination?
The right to vote, or suffrage, is the foundation of American democracy. Today almost all United States
citizens 18 years old or older may exercise this right. Like other rights, however, the right to vote is not
absolute. It is subject to regulations and restrictions. Unlike today, the right to vote for all citizens over
the age of 18 did not always exist. During various periods in the history of the United States, law, custom,
and sometimes even violence prevented certain groups of people from voting.
Early Limitations on Voting
Before the American Revolution, the colonies placed many restrictions on the right to vote. Women and
most African Americans were not allowed to vote; neither were white males who did not own property or
pay taxes. Also excluded in some colonies were people who were not members of the dominant religious
group. As a result, only about 5 or 6 percent of the adult population was eligible to vote. Why did these
restrictions exist? Educated men of the time did not believe in mass democracy in which every adult
could vote. Many believed voting was best left to wealthy, white, property-owning males. As John Jay,
first chief justice of the United States put it: “The people who own the country ought to govern it.”
During the first half of the 1800s, state legislatures gradually abolished property requirements and
religious restrictions for voting. By the mid-1800s the country had achieved universal white adult male
suffrage. The issue of woman suffrage, however, had not been addressed.
Woman Suffrage
The fight for woman suffrage dates from the mid-1800s. Woman suffrage groups grew in number and
effectiveness in the last half of the century, and by 1914 they had won the right to vote in 11 states, all of
them west of the Mississippi. Not until after World War I, when the Nineteenth Amendment was
ratified, was woman suffrage put into effect nationwide.
African American Suffrage
When the Constitution went into effect in 1789, African Americans, both enslaved and free, made up
about 20 percent of the United States population. Yet nowhere were enslaved persons permitted to vote,
and free African Americans who were allowed to vote could do so in only a few states.
The Fifteenth Amendment
The first effort to extend suffrage to African Americans nationwide came shortly after the Civil War,
when the Fifteenth Amendment was ratified in 1870. The amendment provided that no state can deprive
any citizen of the right to vote “on account of race, color, or previous condition of servitude.” This
amendment was also important because for the first time the national government set rules for voting, a
power that only the states had previously exercised.
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Grandfather Clause
Although the Fifteenth Amendment was an important milestone on the road to full suffrage, it did not
result in complete voting rights for African Americans. Southern states set up a number of roadblocks to
limit and discourage the participation of African American voters. One such roadblock was the so-called
grandfather clause incorporated in the constitutions of some Southern states. The grandfather clause
provided that only voters whose grandfathers had voted before 1867 were eligible to vote without paying
a poll tax or passing a “literacy test”. Because the grandfathers of most African American Southerners
had been enslaved and had not been permitted to vote, this clause prevented most of them from voting.
The Supreme Court declared the grandfather clause unconstitutional in 1915.
Literacy Test
Until recent years many states required citizens to pass a literacy test to qualify to vote. Some Southern
states used the literacy tests to keep African Americans from the polls. While in many cases white voters
were judged literate if they could write their names, African American voters were often required to do
much more. For example, they were frequently asked to explain a complicated part of the state or national
constitution. The Voting Rights Acts of 1965 and 1970 and later additions to these laws outlawed literacy
Poll Tax
Another device designed to discourage African American suffrage was the poll tax. A poll tax was an
amount of money—usually one or two dollars—that a citizen had to pay before he or she could vote. It
was a financial burden for poor citizens of all ethnic backgrounds. In addition, the tax had to be paid well
in advance of Election Day, and the poll-tax payer had to present a receipt showing payment before being
permitted to enter the voting booth. Thousands of African Americans in the states with poll taxes were
excluded from the polls. In 1964, the Twenty-fourth Amendment outlawed the poll tax in national
elections. The use of the poll tax in state elections, however, was not eliminated until a 1966 Supreme
Court decision.
The Voting Rights Acts
Despite the elimination of many discriminatory practices by the early 1960s, African American
participation in elections, particularly in the South, was still limited. The civil rights movement of the
1960s resulted in national legislation that enabled larger numbers of African Americans to participate in
the electoral process. The 1965 Voting Rights Act was one of the most effective suffrage laws ever
passed in this country. The voting rights laws also forbade the unfair division of election districts in order
to diminish the influence of minority groups. The laws provided for the appointment of poll watchers to
ensure that the votes of all qualified voters were properly counted. Literacy tests were abolished. The
increased opportunity to vote meant that African American Southerners could now play a more important
role in political life in the South. Recent efforts at voting reform include the Help America Vote Act of
2002. Under this act, states must meet new federal requirements to reform the voting process and make it
as consistent and inclusive as possible.
Twenty-Sixth Amendment
For many years the minimum voting age in most states was 21. In the 1960s, when many young
Americans were fighting in Vietnam, a movement to lower the voting age to 18 began. The basic
argument was that if individuals were old enough to be drafted and fight for their country, they were old
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enough to vote. The Twenty-sixth Amendment ended this debate, setting the voting age at 18. Thus
more than 10 million citizens between the ages of 18 and 21 gained the right to vote.
Meaning of Equal Protection
The Fourteenth Amendment forbids any state to “deny to any person within its jurisdiction the equal
protection of the law.” The Supreme Court has ruled that the Fifth Amendment’s due process clause also
provides equal protection. Generally the equal protection clause means that state and local governments
cannot draw unreasonable distinctions among different groups of people. The key word is unreasonable.
In practice, all governments must classify or draw distinctions among categories of people. For example,
when a state taxes cigarettes, it taxes smokers but not nonsmokers. When a citizen challenges a law
because it violates the equal protection clause, the issue is not whether a classification can be made. The
issue is whether or not the classification is reasonable. Over the years the Supreme Court has developed
guidelines for considering when a state law or action might violate the equal protection clause.
The Rational Basis Test
The rational basis test provides that the Court will uphold a state law when the state can show a good
reason to justify the classification. This test asks if the classification is “reasonably related” to an
acceptable goal of government. A law prohibiting people with red hair from driving would fail the test
because there is no relationship between the color of a person’s hair and driving safely. However, the
Supreme Court upheld a state law that imposes longer prison sentences for people who commit “hate
crimes,” or crimes motivated by prejudice. Unless special circumstances exist, the Supreme Court puts
the burden of proving a law unreasonable on the people challenging the law. Special circumstances arise
when the Court decides that a state law involves a “suspect classification” or a “fundamental right.”
Suspect Classifications
When a classification is made on the basis of race or national origin, it is a suspect classification and
“subject to strict judicial scrutiny.” A law that requires African Americans but not whites to ride in the
back of a bus would be a suspect classification. When a law involves a suspect classification, the Court
reverses the normal presumption of constitutionality. It is no longer enough for the state to show that the
law is a reasonable way to handle a public problem. The state must show the Court that there is “some
compelling public interest” to justify the law and its classifications.
Fundamental Rights
The third test the Court uses is that of fundamental rights, or rights that go to the heart of the American
system or are indispensable in a just system. The Court gives a state law dealing with fundamental rights
especially close scrutiny. The Court, for example, has ruled that the right to travel freely between the
states, the right to vote, and First Amendment rights are fundamental. State laws that violate these
fundamental rights are unconstitutional.
Proving Intent to Discriminate
Laws that classify people unreasonably are said to discriminate. Discrimination exists when individuals
are treated unfairly solely because of their race, gender, ethnic group, age, physical disability, or religion.
Such discrimination is illegal, but it may be difficult to prove. The Supreme Court ruled that to prove a
state guilty of discrimination, one must prove that an intent to discriminate motivated the state’s action.
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The Struggle for Equal Rights
The Fourteenth Amendment, guaranteeing equal protection, was ratified in 1868, shortly after the Civil
War. Yet for almost a century the courts upheld discrimination against and segregation of African
Americans. Racial discrimination is treating members of a race differently simply because of race.
Segregation is separation of people from the larger social group. By the late 1800s, about half the states
had adopted Jim Crow laws. These laws, most often in Southern states, required racial segregation in
such places as schools, public transportation, and hotels. The laws were supported by the Supreme
Court’s decision in Plessy v. Ferguson. It wasn’t until Brown v. Board that the Supreme Court overturned
the Plessy decision and ruled that separate but equal doctrine was unconstitutional. According to the
Court’s decision in Brown “separate but equal” is inherently “unequal”. After the Brown decision, many
African Americans and whites worked together to end segregation through the Civil Rights Movement.
Influenced by the Civil Rights Movement, Congress began to pass civil rights laws. The Civil Rights Act
of 1964 and other laws sought to ensure voting rights and equal job opportunities.
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Section 7: Rights of the Accused and Civil Liberties
■What constitutes unreasonable searches and seizures by the police?
■In the 1960s, how did the Supreme Court rule on the right to counsel and self-incrimination cases?
■What are the issues involved when the Supreme Court deals with affirmative action cases?
■How does the reasonableness standard apply in cases of sex discrimination?
Searches and Seizures
The police need evidence to accuse people of committing crimes, but getting evidence often requires
searching people or their homes, cars, or offices. To protect the innocent, the Fourth Amendment
guarantees “the right of people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” No precise definition of “unreasonable” has been made, so the
courts have dealt with Fourth Amendment issues on a case-by-case basis. Today the police must state
under oath that they have probable cause to suspect someone of committing a crime to justify a search.
Generally they must obtain a warrant from a court official before searching for evidence or making an
arrest. The warrant must describe the place to be searched and the person or things to be seized.
The police do not need a warrant to search and arrest a person they see breaking the law. This power
extends to even minor infractions for which the penalty is only a small fine. Also, the police do not need a
warrant to search garbage placed outside a home for pickup. Since the 1980s, the Court has considered
certain kinds of drug tests as searches that do not require a warrant. Even without direct evidence that one
or more workers use drugs, such tests are lawful if they serve to protect public safety.
The Exclusionary Rule
In 1914 the Court established the exclusionary rule—any illegally obtained evidence cannot be used in a
federal court. This rule did not apply to state courts until Mapp v. Ohio (1961) extended the protection to
state courts. Some people have criticized the exclusionary rule. They ask whether criminals should go free
simply because the police made a mistake in collecting evidence. In 1984 the Court ruled that as long as
the police act in good faith when they request a warrant, the evidence they collect may be used in court
even if the warrant is defective. That same year the Court also approved an “inevitable discovery”
exception to the exclusionary rule. The Court held that evidence obtained in violation of a defendant’s
rights can be used at trial. The prosecutor, however, must show that the evidence would have eventually
been discovered by legal means.
Fourth Amendment in High Schools
Fourth Amendment protections may be limited inside high schools. The Supreme Court ruled that school
officials do not need warrants or probable cause to search students or their property. All that is needed are
reasonable grounds to believe a search will uncover evidence that a student has broken school rules. The
Court also upheld mandatory “suspicionless” drug tests for all students participating in interscholastic
Wiretapping and Electronic Eavesdropping
The Supreme Court considers wiretapping, eavesdropping, and other means of electronic surveillance to
be search and seizure. The Court held that the Fourth Amendment “protects people—and not simply
‘areas’” against unreasonable searches and seizures. The ruling extended Fourth Amendment protections
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by prohibiting wiretapping without a warrant. Furthermore, Congress made laws that require court orders
for any type of wiretaps.
Guarantee of Counsel
The Sixth Amendment guarantees a defendant the right “to have the assistance of counsel for his
defense.” Generally the federal courts provided counsel, or an attorney, in federal cases. For years,
however, people could be tried in state courts without having a lawyer. As a result, defendants who could
pay hired the best lawyers to defend them and stood a better chance of acquittal. People who could not
pay had no lawyer and were often convicted because they did not understand the law.
Gideon v. Wainwright
Clarence Gideon was charged in Florida with breaking into a pool hall with the intent to commit a
crime—a felony. Because he was too poor to hire a lawyer, Gideon requested a court-appointed attorney.
The request was denied by the court. Gideon was convicted and sentenced to a five-year jail term. While
in jail, Gideon studied law books. He appealed his own case to the Supreme Court with a handwritten
petition. In 1963, in a unanimous verdict, the Court agreed that Gideon should have been provided with
an attorney per his request. Gideon was released, retried with a lawyer assisting him, and acquitted.
Hundreds of other Florida prisoners and thousands more in other states who had been convicted without
counsel were also set free. The Court has since extended the Gideon decision by ruling that whenever a
jail sentence of 6 months or more is a possible punishment—even for misdemeanors and petty offenses—
the accused has a right to a lawyer at public expense from the time of arrest through the appeals process.
The Fifth Amendment says that no one “shall be compelled in any criminal case to be a witness against
himself.” The courts have interpreted this amendment’s protection against self-incrimination to cover
witnesses before congressional committees and grand juries as well as defendants in criminal cases. This
protection rests on a basic legal principle: the government bears the burden of proof. Defendants are not
obliged to help the government prove they committed a crime or to testify at their own trial. The Fifth
Amendment also protects defendants against confessions extorted by force or violence. Giving people the
“third degree” is unconstitutional because this pressure forces defendants, in effect, to testify against
themselves. The same rule applies to state courts through the due process clause of the Fourteenth
Escobedo v. Illinois
In 1960 Danny Escobedo was picked up for a possible murder by police and questioned him at length.
Escobedo repeatedly asked to see his lawyer, but his requests were denied. No one during the course of
the interrogation advised Escobedo of his constitutional rights. After a long night at police headquarters,
Escobedo made some incriminating statements to the police. At his trial, the prosecution used these
statements to convict Escobedo of murder. In 1964 the Supreme Court reversed Escobedo’s conviction,
ruling that Escobedo’s Fifth Amendment right to remain silent and his Sixth Amendment right to an
attorney had been violated. The Court reasoned that the presence of Escobedo’s lawyer could have helped
him avoid self-incrimination. A confession or other incriminating statements an accused person makes
when he or she is denied access to a lawyer may not be used in a trial. This is another version of the
exclusionary rule.
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Miranda v. Arizona
Two years later, the Court established strict rules for protecting suspects during police interrogations. In
March 1963, Ernesto Miranda had been arrested and convicted for the rape and kidnapping of an 18-yearold woman. The victim selected Miranda from a police lineup, and the police questioned him for two
hours. During questioning, Miranda was not told that he could remain silent or have a lawyer. Miranda
confessed, signed a statement admitting and describing the crime, was convicted, and then appealed. In
Miranda v. Arizona (1966) the Supreme Court reversed the conviction. The Court ruled that the Fifth
Amendment’s protection against self-incrimination requires that suspects be clearly informed of their
rights before police question them. Unless they are so informed, their statements may not be used in court.
The Court set strict guidelines for police questioning of suspects. These guidelines are now known as the
Miranda Rules.
Double Jeopardy
The Fifth Amendment states in part that no person shall be “twice put in jeopardy of life and limb.”
Double jeopardy means a person may not be tried twice for the same crime, thus protecting people from
continual harassment. However, if a criminal act violates both state and federal law, the case may be tried
at both levels. In addition, a single act may involve more than one crime. A person may be tried
separately for each offense. When a trial jury fails to agree on a verdict, the accused may have to undergo
a second trial. Double jeopardy does not apply when the defendant wins an appeal of a case in a higher
Cruel and Unusual Punishment
The Eighth Amendment forbids “cruel and unusual punishments,” the only constitutional provision
specifically limiting penalties in criminal cases. The Supreme Court has rarely used this provision. During
the 1970s the Supreme Court handed down several decisions on the constitutionality of the death penalty.
In 1972, the Court ruled that capital punishment as then administered was not constitutional. The Court
found the death penalty was being imposed in apparently arbitrary ways for a wide variety of crimes and
mainly on African Americans and poor people. The decision, however, stopped short of flatly outlawing
the death penalty. Instead, it warned the states that the death penalty needed clarification. Thirty-five
states responded with new death penalty laws. The Court also ruled mandatory death penalties
unconstitutional. The Court held that such laws failed to take into consideration the specifics of a crime
and any possible mitigating circumstances. Still, in 1976 the Court ruled that under adequate guidelines
the death penalty does not constitute cruel and unusual punishment. The Court stated: “Capital
punishment is an expression of society’s moral outrage. . . . It is an extreme sanction, suitable to the most
extreme of crimes.” In 2012, the Court ruled that sentencing a juvenile to life without parole violated the
Eighth Amendment, after previously ruling that death sentences for juveniles was unconstitutional.
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Challenges for Civil Liberties
Changing ideas, social conditions, and technology will always create new issues for civil liberties. Key
issues today involve affirmative action, discrimination against women, the right to know about
government actions, privacy, and the fight against terrorism.
Affirmative Action
In the 1960s a new approach to dealing with discrimination developed through affirmative action
programs. Affirmative action refers to government policies that directly or indirectly give a preference to
minorities, women, or the physically challenged in order to make up for past discrimination caused by
society as a whole. Affirmative action is used in hiring and promotions, government contracts, admission
to schools and training programs, and many other areas. Most affirmative action programs are required by
federal government regulations or court decisions. Other programs are voluntary efforts. One of the most
important applications of affirmative action has been in higher education. In 1978 the Supreme Court
ruled that colleges and universities could take race into account when admitting students, as long as they
did not use a strict quota system that set aside a certain number of slots to minority candidates (Regents of
the University of California v. Bakke). At the same time, the Court has made it clear that not all forms of
affirmative action in college admissions are acceptable, such as prohibiting a “point system” in the
application process.
The policy of affirmative action has caused much disagreement. Its supporters argue that minorities and
women have been so handicapped by past discrimination that they suffer from disadvantages not shared
by white males. Supporters also argue that increasing the number of minorities and women in desirable
jobs is such an important social goal that it should be taken into account when judging a person’s
qualifications for a job, school application, or promotion. Therefore, supporters claim, simply stopping
discrimination is not enough; government has the responsibility to actively promote equality for
minorities. Opponents claim that any discrimination based on race or gender is wrong, even to correct
past injustices. They argue that merit should be the only basis for making decisions on jobs, promotions,
and school admissions. Some opponents have used the term reverse discrimination to describe situations
where qualified individuals lose out to others chosen because of their race, ethnicity, or gender. The
nation’s heated debate over affirmative action continues to the present.
Discrimination Against Women
Prior to the 1970s, the Supreme Court generally ruled that laws discriminating against women did not
violate the equal protection clause of the Fourteenth Amendment. In theory, many of these laws were
designed to protect women from night work, overtime work, heavy lifting, and “bad elements” in society.
In practice, they often discriminated against women. In 1971 the Supreme Court for the first time held
that a state law was unconstitutional because it discriminated against women. In Reed v. Reed, the Court
ruled that a law that automatically preferred a father over a mother as executor of a son’s estate violated
the equal protection clause of the Fourteenth Amendment. The Reed decision created a new standard for
judging constitutionality in gender discrimination cases. The Supreme Court said any law that classifies
people on the basis of gender “must be reasonable, not arbitrary, and must rest on some ground of
difference.” That difference must serve “important governmental objectives” and be substantially related
to those objectives. In addition, in 1977 the Court said that treating women differently from men (or vice
versa) is unconstitutional when based on no more than “old notions” about women and “the role-typing
society has long imposed on women.”
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Since the Reed decision, federal courts have allowed some distinctions based on gender, while they have
invalidated others. All of the following prohibited actions result from Supreme Court decisions that bar
distinctions based on gender: (1) States cannot set different ages at which men and women become legal
adults. (2) States cannot set different ages at which men and women are allowed to purchase alcohol. (3)
States cannot exclude women from juries. (4) Employers cannot require women to take a pregnancy leave
from work. (5) Girls cannot be kept off Little League baseball teams. (6) Private clubs and community
service groups cannot exclude women from membership. (7) Employers must pay women monthly
retirement benefits equal to those paid to men. (8) States cannot bar women from state-supported military
The following permitted actions are based on Supreme Court decisions that allow differences based on
gender: (1) All-boy and all-girl public schools are allowed as long as enrollment is voluntary and quality
is equal. (2) A state can give widows a property tax exemption not given to widowers. (3) A state may
prohibit women from working in all-male prisons. (4) Hospitals may bar fathers from the delivery room.
Citizens’ Right to Know
The right of citizens and the press to know what their government is doing is an essential part of
democracy. Citizens cannot make intelligent judgments about the government’s actions unless they have
adequate information. Government officials, however, are often reluctant to share information about their
decisions and policies. The national government’s security classification system, operating since 1917,
provides that information on government activities related to national security and foreign policy may be
kept secret. Millions of government documents are classified as secret each year and made unavailable to
the public.
The Freedom of Information Act
In 1966 Congress passed the Freedom of Information Act requiring federal agencies to provide citizens
access to public records on request. Exemptions are permitted for national defense materials, confidential
personnel and financial data, and law enforcement files. People can sue the government for disclosure if
they are denied access to materials.
The Sunshine Act
Before 1976 many government meetings and hearings were held in secret. Such closed sessions made it
difficult for the press, citizens’ groups, lobbyists, and the public to keep an eye on governmental
decisions. In the Sunshine Act of 1976, Congress helped correct that situation by requiring that many
meetings be open to the public. Some closed meetings are allowed, but in that case a transcript, or
summary record, of the meeting must be made available.
Citizens’ Right to Privacy
The Constitution does not mention a specific right to privacy. In 1965, however, the Supreme Court ruled
that personal privacy is one of the rights protected by the Constitution. The Court said that specific
guarantees in the First, Third, Fourth, and Fifth Amendments created an area of privacy that is protected
by the Ninth Amendment and is applied to the states by the due process clause of the Fourteenth
Amendment. In recent decisions, the Court has recognized the right to privacy in personal matters such as
child rearing, abortion, and personal relations within the confines of the home. The Court has also held
that the right to personal privacy is limited when the state has a “compelling need” to protect society.
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Internet Issues
Widespread use of the Internet is creating many new challenges to the right to privacy. One concern is
online surveillance by the government. The FBI, for example, has developed a powerful new wiretapping
technology known as “Carnivore.” The system can readily intercept the full content of e-mail flowing
through the Internet or target particular words or phrases in messages sent by anyone on a network.
Online privacy is also being threatened by the ability of Web sites and hackers to gather information
about people as they “surf” the Web.
Terrorism and the USA Patriot Act
War or other national emergencies create tension in a democracy between the need to maintain individual
rights and the need to implement strong measures to protect the nation’s security. The USA Patriot Act,
passed quickly by Congress in response to the September 11, 2001, terrorist attacks, has greatly increased
the federal government’s power to detain, investigate, and prosecute people suspected of terrorism. The
law allows federal agencies to monitor Internet messages, to tap phones with approval only from a secret
foreign intelligence court, and to seize a person’s library and other private records without showing
“probable cause” as normally required in criminal investigations. The law also broadens the scope of who
could be considered a terrorist, allows the FBI to share evidence collected in criminal probes, and gives
the attorney general sweeping new powers to detain and deport people.
The American people strongly supported the Patriot Act at the time of its passage. Later on, however,
concerns arose over whether the Act poses a threat to civil liberties. Many legal experts have noted that
provisions in the law could lead to changes in some of the most basic principles of the American legal
system, such as the right to a jury trial, the privacy of attorney-client communications, and protections
against preventive detention.
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Section 8: Law in America
■What are the four major sources of law in the United States?
■How do the key principles of the legal system provide justice for citizens?
The set of rules and standards by which a society governs itself is known as law. Law defines the
individual’s rights and obligations and specifies the ways citizens and government relate to each other.
Law serves several functions in our society. It is used to resolve conflict, protect rights, limit government,
promote general welfare, set social goals, and control crime. While so many laws might seem to limit our
freedom, laws also guarantee our individual liberties. Indeed, the rule of law is the principle that both the
government and its citizens should be subject to law, and that no person is above the law, regardless of his
or her position. This principle is a hallmark of democratic societies because it means government
decisions and actions should be made according to established laws rather than by arbitrary actions and
Constitutional Law
The Constitution is the most fundamental and important source of law in the United States. The U.S.
Supreme Court has the final word on the meaning of the U.S. Constitution. The term constitutional law
applies to that branch of the law dealing with the formation, construction, and interpretation of
constitutions. For the most part, cases involving constitutional law decide the limits of the government’s
power and the rights of the individual. Day-to-day decisions by the president, Congress, and other public
officials often involve interpreting the meaning of the Constitution and thus can shape constitutional law.
However, the decisions of courts, especially the U.S. Supreme Court, are the main sources of information
about the meaning and interpretation of the U.S. Constitution and state constitutions. Constitutional law
cases may deal either with civil law or criminal law.
Statutory Law
Another source of American law is statutory law. A statute is a law written by a legislative branch of
government. The United States Congress, state legislatures, and local legislative bodies write thousands
of these laws. Statutes passed by city councils are called ordinances. Statutes may limit citizens’
behavior when, for instance, they set speed limits, specify rules for inspecting food products, or set the
minimum age to obtain a work permit. Most decisions of federal courts deal with statutory law, and many
of the cases decided by the Supreme Court are devoted to interpreting statutory laws. In most of these
cases, the courts determine what a statute means or whether it deprives a person of a constitutional right
when it is carried out.
Administrative Law
A significant feature of local, state, and national government in America today is the large number of
administrative agencies that run government programs and provide services. Administrative law spells
out the authority and procedures to be followed by these agencies, as well as the rules and regulations
issued by such agencies. Many administrative law cases deal with problems of fairness and due process
because most administrative agencies either regulate people’s behavior, or provide or deny government
benefits such as welfare payments or medical insurance. Thus, disputes constantly arise over whether
agencies have acted fairly and given people the opportunity to present facts relevant to their case.
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Common Law
The single most important basis of the American legal system is common law, also called case law. This
is law made by judges in the process of resolving individual cases. When a new case is similar to cases
already decided and in the books, the judges follow the earlier ruling, or precedent. In cases without
precedent, judges decided using common sense and customs, creating precedent for future cases. In
today’s courts it is common for judges to rule based on common law and equity, or decisions based on a
system of fairness.
Legal System Principles
Four basic principles underlie the operation of both federal and state courts and the actions of the
thousands of men and women who serve in the American legal system. These principles include equal
justice under the law, due process of law, the adversary system of justice, and the presumption of
Equal Justice Under the Law
The phrase “equal justice under the law” refers to the goal of the American court system to treat all
persons alike. It means that every person, regardless of wealth, social status, ethnic group, gender, or age,
is entitled to the full protection of the law. The equal justice principle grants all Americans rights, such as
the right to a trial by a jury of one’s peers. The Fifth through the Eighth Amendments to the Constitution
spell out these specific guarantees.
Due Process of Law
Closely related to the principle of equal justice is the principle of due process of law. Due process has
both a substantive part and a procedural part. Substantive due process is a kind of shorthand for certain
rights, some that are specified in the Constitution (like free speech) and some that are not specified (like
the right of privacy in making personal decisions). The Fifth and Fourteenth Amendments contain the due
process principle. Cases about the way a law is administered involve procedural due process. Procedural
due process prohibits arbitrary enforcement of the law. It also provides safeguards intended to ensure that
constitutional and statutory rights are protected by law enforcement. At the most basic level, procedural\
due process can be seen in the guarantees of the Fourth and Sixth Amendments.
The Adversary System
American courts operate according to the adversary system of justice. Under the current adversary
system, the courtroom is a kind of arena in which lawyers for the opposing sides try to present their
strongest cases. The lawyer for each side is generally expected to do all that is legally permissible to
advance the cause of his or her client. The judge in the court has an impartial role and should be as fair to
both sides as possible, especially in implementing the essence of the law.
Presumption of Innocence
In the United States system of justice, the government’s police power is balanced against the presumption
that a person, although accused, is innocent until proven guilty. The notion of presumed innocence is not
mentioned in the Constitution, but it is deeply rooted in American legal heritage. The burden of proving
an accusation against a defendant falls on the prosecution. The defendant does not have to prove his or
her innocence. Unless the prosecution succeeds in proving the accusation, the court must declare the
defendant not guilty.
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Section 9: Civil and Criminal Law
■What are the various types of civil law that affect people today?
■What are the steps in a civil law case?
■How are the types of crime identified according to severity?
■What are the main steps in a criminal case?
Civil law concerns disputes among two or more individuals or between individuals and the government.
Civil cases arise because one party believes it has suffered an injury at the hands of another party or wants
to prevent a harmful action from taking place.
Types of Civil Law
Civil law touches nearly every phase of daily life—from buying a house to getting married. About 90
percent of the cases heard in state courts concern civil laws. Four of the most important types of civil law
deal with contracts, property, family relations, and civil wrongs causing physical injury or injury to
property, called torts.
A contract is a set of voluntary promises, enforceable by the law, between parties who agree to do or not
do something. We enter into contracts all the time: when we join a health club, buy a car with credit, get
married, or agree to do a job for someone. In an expressed contract the terms are specifically stated by
the parties, usually in writing. An implied contract is one in which the terms are not expressly stated but
can be inferred from the actions of the people involved and the circumstances. A valid contract has
several characteristics. All parties to a contract must be mentally competent and in most cases must be
legal age adults. The contract cannot involve doing or selling anything illegal. The contract’s elements
must include an offer, acceptance, and in most cases a consideration. An offer is a promise that something
will or will not happen. One party to a contract must then accept the offer made by the other party. If you
agree, in writing or orally, this constitutes the acceptance. Finally, the parties must give some type of
consideration. They must give, exchange, perform, or promise each other something of value, such as a
refinished bumper in return for $500. A very large number of civil suits involve disagreements over
Property Law
An important type of civil law deals with the use and ownership of property. The ability of private
individuals to own, buy, and sell property is one feature of a democratic society. Real property has been
defined by the courts to be land and whatever is attached to or growing on it, such as houses and trees.
Personal property includes movable things like clothes or jewelry as well as intangible items like stocks,
bonds, copyrights, or patents. Many kinds of legal disputes arise over using, owning, buying, and selling
Family Law
Another branch of civil law deals with the relationships among family members. This includes marriage,
divorce, and parent-child relationships, including child custody issues. Today marriage is a civil contract
entered into by both parties. Divorce legally ends a marriage and leaves both parties free to remarry.
Legal disputes involving such domestic relations account for a large number of civil cases in state courts.
Family law is changing rapidly as the meaning of family changes in American society.
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Torts or Civil Wrongs
A tort is any wrongful act, other than breach of contract, for which the injured party has the right to sue
for damages in a civil court. Those responsible for damage caused to someone’s property, such as
breaking a window, or for injury to someone caused by negligence, such as failing to clear ice from the
sidewalk, may be sued by the party suffering the damage or injury. Further, the wronged party may
sometimes seek punitive damages—additional money—as a way to punish the party causing the injury.
There are two major categories of torts. An intentional tort involves a deliberate act that results in harm to
a person or property. The person committing the act may have obviously sought to hurt someone, for
instance, by hitting them or spreading lies about them. Assault and battery and defamation of character
are examples. Or, the person may be liable for doing harm even if his or her actions, such as playing a
practical joke that unintentionally results in an injury, seemed innocent at the time. Negligence is another
kind of tort involving careless or reckless behavior. A person is negligent when he or she fails to do
something a reasonable person would have done, or does something a prudent person would not have
done. Leaving a sharp kitchen knife where small children could easily reach it and not having the brakes
checked on an old car with high mileage are examples of negligence that could result in legal liability if
someone is injured.
Steps in a Civil Case
Civil cases are called lawsuits. The plaintiff is the person who brings charges in a lawsuit, called the
complaint. The person against whom the suit is brought is the defendant. The plaintiff in a civil suit
usually seeks damages, an award of money from the defendant. If the court decides in favor of the
plaintiff, the defendant must pay the damages to the plaintiff. Usually the defendant is also required to
pay court costs. If the court decides in favor of the defendant, the plaintiff must pay all the court costs and
of course receives nothing from the defendant. In some lawsuits involving equity, the plaintiff may ask
the court to issue an injunction, a court order that forbids a defendant to take or continue a certain action.
Here are the steps:
1. Hire a lawyer
2. File a complaint with the courts
3. The defendant receives a summons, or notice of lawsuit
4. Both sides partake in discovery, or preparing for trial by fact-checking and gathering
witnesses and/or evidence
5. Negotiate a settlement (if accepted, the case ends)
6. Trial, which ends in a verdict
7. With the verdict comes the award
8. Then, there is still the possibility of an appeal or a necessary court-order to enforce payment
by the losing party
Small Claims Court
Most states today have provided an alternative to the lengthy trial process by creating small claims
courts. These courts hear civil cases commonly dealing with collecting small debts, property damage,
landlord-tenant disputes, small business problems, and the like. Basically, these cases are like those you
would see on Judge Judy or The Peoples Court.
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Criminal Law
In criminal law cases, the government charges someone with a crime and is always the prosecution. The
defendant is the person accused of a crime. A crime is an act that breaks a criminal law and causes injury
or harm to people or to society in general. By far, most crimes committed in the United States break state
laws and are tried in state courts. In recent years, however, there have been an increasing number of
federal criminal cases. A federal criminal case might involve such crimes as tax fraud, counterfeiting,
selling narcotics, mail fraud, kidnapping, and driving a stolen car across state lines. If a criminal court
finds a person guilty, the judge may order the defendant to serve a term in prison, to pay a fine, or both.
The criminal justice system is the system of state and federal courts, judges, lawyers, police, and prisons
that has the responsibility for enforcing criminal law. There is a separate juvenile justice system with
special rules and procedures for handling cases dealing with juveniles, who in most states are people
under the age of 18.
Types of Crime
Crimes may be classified as petty offenses, misdemeanors, or felonies. Minor crimes such as parking
illegally, littering, disturbing the peace, minor trespassing, and driving beyond the speed limit are petty
offenses. When people commit a petty offense, they often receive a ticket, or citation, rather than being
arrested. More serious crimes like vandalism, simple assault, stealing inexpensive items, writing bad
checks for modest amounts, being drunk and disorderly, and so on are misdemeanors. A person found
guilty of a misdemeanor may be fined or sentenced to jail, usually for one year or less. Serious crimes
such as burglary, kidnapping, arson, rape, fraud, forgery, manslaughter, or murder are considered
felonies. These crimes are punishable by imprisonment for a year or more. In the case of murder, the
punishment could be death. People convicted of felonies may also lose certain civil rights such as the
right to vote, possess a firearm, or serve on a jury. Further, they may lose employment opportunities in
some careers such as the military, law, teaching, or law enforcement. Misdemeanors may sometimes be
treated as felonies. Drunk driving, for instance, is often a misdemeanor. However, if a person has been
arrested for drunk driving and has been convicted of the same offense before, that person may be charged
with a felony.
Steps in Criminal Cases
There are several steps which nearly every criminal case follows, although the exact procedures often
vary from state to state. At each step defendants are entitled to the protections of due process guaranteed
in the Bill of Rights. The prosecutor, a government lawyer with the responsibility for bringing and
proving criminal charges against a defendant, must prove beyond a reasonable doubt to a judge or jury
that the defendant violated the law.
Investigation and Arrest
Criminal cases may begin when police believe a crime has been committed and start an investigation to
gather enough evidence to convince a judge to give them a warrant to arrest someone. A valid arrest
warrant must list the suspect’s name and the alleged crime. The arrested person is taken to a police
station where the charges are recorded or “booked.” At this point the suspect may be fingerprinted,
photographed, or put in a lineup to be identified by witnesses. Police may (often with a court order)
administer a blood test, or take a handwriting sample. These procedures do not violate a person’s
constitutional rights, and lawyers do not have to be present. However, suspects have the right to ask for a
lawyer before answering questions.
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Initial Appearance
Whenever someone is arrested, he or she must be brought before a judge as quickly as possible, usually
within 24 hours, to be formally charged with a crime. This is the right of Habeus Corpus. The judge
explains the charges to the defendant and reads the person’s rights. If the charge is a misdemeanor, the
defendant may plead guilty and the judge will decide on a penalty. If the defendant pleads not guilty, a
date is set for a trial. When the crime is a felony, the defendant usually is not asked to enter a plea. Rather,
the judge sets a date for a preliminary hearing, and a process aimed at determining the merits of the
charges begins. The judge may also decide whether the suspect will be released or “held to answer.” A
suspect may be released on his or her “own recognizance” if the judge thinks the person is a good risk to
return to court for trial, or the judge may require bail, a sum of money the accused leaves with the court
until he or she returns for trial. According to the Eighth Amendment,1 the amount of bail required should
fit the severity of the charge but cannot be excessive. In some cases bail may be denied, as when a
defendant is likely to flee.
Preliminary Hearing or Grand Jury
The next step in the criminal justice process also varies from state to state and between state and the
federal governments. In federal courts and in many state courts, cases will go to a grand jury, a group of
citizens who review the prosecution’s allegations in order to determine if there is enough evidence for an
indictment, or formal criminal charge. If a preliminary hearing is used instead of a grand jury
indictment, the prosecution presents its case to a judge. If the judge believes there is a probable cause to
believe the defendant committed the crime, the case moves to the next stage. If the judge decides the
government does not have enough evidence, the charges are dropped.
Plea Bargaining
In about 90 percent of all criminal cases, the process comes to an end with a guilty plea because of plea
bargaining, which is similar to the settlement stage of civil court cases. In this pretrial process the
prosecutor, defense lawyer, and police work out an agreement through which the defendant pleads guilty
to a lesser crime (or fewer crimes) in return for the government not prosecuting the more serious (or
additional) crime with which the defendant was originally charged. Supporters of the process claim it is
efficient and saves the state the cost of a trial in situations where guilt is obvious, as well as those where
the government’s case may have weaknesses. Some opponents argue “copping a plea” allows criminals to
get off lightly. Others say that it encourages people to give up their rights to a fair trial.
Arraignment and Pleas
At the arraignment the judge reads the formal charge against the defendant in an open courtroom. The
defendant is represented by an attorney. During this process the judge may ask the defendant questions to
ensure the person understands the charges and the process. A copy of the charges is given to the
defendant, and the judge asks if the defendant pleads guilty or not guilty. The defendant then enters one of
four pleas responding to the charges. It could be: (1) not guilty, (2) not guilty by reason of insanity, (3)
guilty or, in some states, (4) no contest. By pleading no contest the defendant indirectly admits guilt by
saying, “I will not contest it;” however, this does not go on the records as a guilty plea. If the defendant
pleads guilty or no contest, he or she has given up the right to a defense, the judge then decides a
punishment, and the defendant may be sent to prison immediately. If the plea is not guilty, there must be a
trial, and a court date is set.
The Trial
The Sixth Amendment guarantees that defendants should not have to wait a long time before their trial
starts. However, the courts are so crowded that long delays are common. Defendants accused of a felony
have a right to choose between a jury trial or one heard only by a judge, known as a bench trial. In a
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bench trial the judge hears all the evidence and determines guilt or innocence. Experience has shown that
judges are more likely to find defendants guilty than are juries. A jury is a group of citizens who hear
evidence during a trial in order to decide guilt or innocence. The prosecuting and defense attorneys select
jurors from a large pool of residents within the court’s jurisdiction. Both sides try to avoid jurors who
might be unfavorable to their side. When the jury and alternate jurors have been selected, the prosecution
presents its case against the defendant. Witnesses are called, and evidence is presented. The defense
attorney has the right to cross-examine prosecution witnesses, and at any time either side can object to
statements or actions by the other side. Next, the defense has its turn and may call witnesses. The
prosecuting attorney has the right to cross-examine them. Under the Fifth Amendment defendants do not
have to testify, and refusal to testify cannot be taken as an admission of guilt. The attorneys for both sides
then present closing arguments that summarize the cases and respond to the opposition’s case.
The Decision
After closing arguments the judge gives the jury a set of instructions on proper legal procedures for the
case, and explains the law that the jury is required to apply to the facts brought out at trial. The jury
members then go to a jury room to decide if the defendant is guilty or not guilty. To decide that a person
is guilty, the jury must find the evidence convincing “beyond a reasonable doubt.” Nearly all criminal
cases require a unanimous vote for a verdict, or decision, of guilty. If the jury cannot agree on a verdict, a
situation known as a hung jury, the court usually declares a mistrial. A new trial with another jury may
be scheduled later.
When the verdict is “not guilty,” the defendant is released immediately and with very few exceptions
cannot be tried again for the same crime. If the verdict is “guilty,” the judge usually determines the
sentence, the punishment to be imposed on the offender. Sentences may require time in prison, the
payment of a fine, or a number of hours of community service. In a few states jurors may play a role in
sentencing, particularly in cases in which the death penalty is a possible sentence. The law usually sets
minimum and maximum penalties for various crimes, and the judge chooses a punishment from within
those ranges. People convicted of misdemeanors and felonies have the right to appeal their cases to a
higher court, although this right to appeal is not a constitutional one.
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