Unit 5 Final Review

The Judicial Branch, Civil Rights and Civil Liberties

What do Federal Courts Do?

• Federal courts are responsible for interpreting and settling disputes arising from federal laws

• State courts handle state laws• Most acts involve state laws• It is possible for one act to violate both

(trading drugs, tax evasion)

Structure & Jurisdiction• Federal District Courts:

– 91 courts of original jurisdiction (trial courts that determine guilt or not)– Decide both civil and criminal matters

• Circuit Courts of Appeals– 13 courts of appellate jurisdiction (hear cases on appeal when an error in

law occurs)– Someone must claim a federal constitutional right has been violated– Decide issues of law not fact– Panels of appointed judges decide; no juries

• Supreme Court– Court of last resort– Has original AND appellate jurisdiction (mostly hears appeals)– Nine appointed justices (including the Chief Justice)

Politics of the Judiciary

• Judges and Justices (Supreme Court only) are appointed for life by President

• All must be confirmed by Senate (Senate Judiciary Committee interviews)

• Nominees share ideology of President• Abortion rights, school prayer, affirmative action are

all hot-button issues• Senatorial Courtesy: Senators in a state where an

appointee will sit have traditionally submitted a list of names to the P from which he chooses

Politics of the Judiciary

• Judicial Restraint- Judges who are reluctant to overturn the acts of a legislature are said to practice judicial restraint

• Judicial Activism- Judges who have no qualms about overturning a legislative action are considered activist– Liberals often see judges as constitutional

interpreters who should reflect current values; are considered activist for this reason

How a Case Reaches the Supreme Court

• Custom and tradition have determined this process NOT the Constitution

• Rule of Four-If four of the nine justices agree to review the lower court’s decision, they grant a writ of certiorari (a legal document used to request the lower court transcripts)

• The legal question must be justiciable—involve an actual legal dispute (not a political one)

• Standing- The petitioner must have a real interest in the outcome of the case

Judicial Review

• Not expressly granted the Supreme Court in the Constitution

• The right to judge the constitutionality of laws and actions of the government

• Established in Marbury v. Madison, 1803.• John Marshall was justice at this time; he was

a Federalist who worked to increase the powers of the federal government over states

The Marshall Court

• Fletcher v. Peck, 1810 – The first case in which the Court overturned a state law on

constitutional grounds• McCulloch v. Maryland, 1819

– States cannot tax tax the national bank– Reinforced the Supremacy Clause of the Const.– Upheld idea of implied powers of national gov’t

• Gibbons v. Ogden, 1824– Increased federal power over states by defining commerce

broadly and implying that anything concerning interstate trade could be regulated by federal gov’t

Key Terms

• Original / appellate jurisdiction• Senatorial courtesy• Judicial restraint / activism• Marbury v. Madison / McCulloch v. Maryland• Writ of Cert / Rule of Four• Justiciable / standing

How to Discuss a Court Case

• Don’t give background case narrative• Do explain – The essential legal questions and reasoning of the

court in its decision – The case’s consequences / impact on government

and society (i.e. Marbury = power of judicial review)

– What was the consequence of Heart of Atlanta Hotel v. U.S.?

Civil Rights v. Liberties

• Civil Rights– Protections from discrimination based on race,

gender or other minority status • Civil Liberties– Protections of citizens from the abuse of

government power

History of Civil Liberties

• BOR only protects Americans from the federal government

• It wasn’t until the 14th Amendment and the actions of the Supreme Court that freedoms were selectively incorporated to apply to states

• Gitlow v. NY, 1925 was first time SC ruled that state limits on speech and press could not exceed limits allowed the nat’l gov’t

Selective Incorporation

• The Court has applied the BOR to state law on a case-by-case basis.

• The following rights have NOT yet been incorporated

• 2nd Amendment right to bear arms• 3rd Amendment protection against quartering soldiers• 5th Amendment right to indictment by a grand jury• 7th Amendment right to a jury trial in civil cases• 8th Amendment protection against excessive bail

First Amendment Rights: Speech

• Unprotected speech: obscenity, slander, libel or speech that sparks violence

• Clear and Present Danger Test (Schenck v. US, 1919)

• Preferred Position Doctrine, 1940’s– Freedom of speech fundamental to liberty, thus any

limits must address severe, imminent threats to the nation

– Court will protect offensive but nonthreatening speech

1st Amendment Rights: Press

• Courts must weigh the need to be informed versus security concerns

• The preferred position doctrine applies• Prior restraint:

– Preventing publication / censoring– Is rarely constitutional (Pentagon Papers, i.e.)

• Obscenity: Miller v. California, 1973– Use average person & community standards to judge– Does the work lack value (artistic, literary, scientific)?– Does the work depict sexual behavior in an offensive manner?

1st Amendment: Freedom of Assembly & Association

• Does not extend to violent groups or to demonstrations that incite violence

• Reasonable restrictions, if applied to all groups, are acceptable

• Gatherings must not disrupt daily life

1st Amendment: Freedom of Religion

• Establishment Clause: – Gov’t may NOT require religious observation– Has been used to prevent school prayer, public nativity

scenes, bans on teaching evolution– Court has allowed subsidies for textbooks, lunches and

buses at religious schools • Free exercise clause: – Gov’t may NOT prevent individuals from practicing their

faith– This is not absolute (no human sacrifice, polygamy, denial

of medical treatment…)

1st Amendment: Religion

• In deciding whether a law violates the establishment clause, the court uses …

• The Lemon Test (Lemon v. Kurtzman, 1971)– Does the law have a secular, rather than religious,

purpose?– Does the law neither promote nor discourage

religion?– Does the law avoid “excessive entanglement” of

the government and religious institutions?

Rights of the Accused

• Fundamental protection against government abuse of power

• Many are found in the 5th Amendment• The 1960’s Warren Court (Chief Justice Earl

Warren) greatly expanded protections for the accused

• The Rehnquist Court (mid 1980s til 2005) limited these expansions

4th Amendment

• Limits power of the government to search for evidence of criminal activity (search and seizure)

• Police must have probable cause and convince a judge to issue a warrant

• Evidence found illegally by police is excluded in trial (Exclusionary Rule)

• This was established in Mapp v. Ohio, 1961• There are some exceptions to warrant requirement

(plain view, consent, when safety is a concern)

5th Amendment

• Protection from self-incrimination• Defendant cannot be forced to testify at trial• Miranda v. Arizona, 1966– Defendant must be notified of his right to remain

silent, his right to a lawyer, and his protection from self-incrimination

– Court decided Miranda was deprived his 14th Amendment right to due process and threw out his confession since he was read his rights

6th Amendment

• Guarantees defendants the right to an attorney in federal criminal cases.

• This was incorporated to states via 14th Amendment due process clause in case Gideon v. Wainwright, 1963

• Also Right to a Speedy Trial (100 day limit from arrest to trial)

8th Amendment

• Forbids Cruel and Unusual Punishment• Is the death penalty?• Court has placed limits on the death penalty but

acknowledged that it is constitutional– Furman v. Georgia, 1972- Court halted death penalty

until it became less arbitrary (racist)– Gregg v. Georgia, 1976- With adequate rules, the

death penalty resumes– Atkins v. Virginia, 2002-mentally retarded cannot be

executed

Right to Privacy

• Not specifically mentioned in Constitution• Griswold v. Connecticut, 1965- Court ruled BOR

contained an implied right to privacy– A combination of the 1st, 3rd, 4th, 5th, 9th and 14th

Amendments added up to this right to privacy • Roe v. Wade, 1973 – – Legalized abortion based on a woman’s right to

privacy; established national guidelines for abortions– Is really a subset of Griswold decision

Civil Rights and African Americans

• Prior to the Civil War, most blacks were slaves with virtually no legal rights

• Free blacks also denied basic civil rights (voting, equal protection)

• 13th Amendment ended slavery• 14th Amendment

– Designed to prevent states from mistreating freed blacks– Provided citizenship for former slaves – Has due process and equal protection clauses– At first was narrowly interpreted; later used by Court to apply

BOR to states

Civil Rights and African Americans

• 15th Amendment- Universal male suffrage; banned laws that would prevent blacks from voting

• Jim Crow laws and voting restrictions- Court upheld discriminatory laws in South; didn’t enforce amendments

• 24th Amendment ended poll taxes

Civil Rights Acts

• Civil Rights Act, 1964 – – Increased the rights of blacks and other minorities– Gave federal gov’t greater means to enforce laws– Banned discrimination in public accommodations– Prohibited discrimination in hiring based on race

and gender– Required gov’t to end funding for any program

that didn’t comply with law– Serious consequences for states that ignored laws

Voting Rights Act, 1965

• Designed to address voting discrimination in South

• Allowed fed gov’t to step into any state where less than 50% of state was registered to vote

• Prevented literacy tests

Civil Rights Today

• Segregation is still a challenge today• De facto segregation describes the divides

between races that exist today despite laws to end it; neighborhoods and schools

• De jure segregation was segregation by law; now illegal

Affirmative Action

• Programs aimed at changing the discrimination that continues in employment, housing and higher education

• Seek to create opportunities for minorities but are controversial and politically unpopular

• Regents UC Davis v. Bakke, 1978 case – Reverse discrimination; ended quotas

Civil Rights and Women

• Received right to vote 19th Amendment in 1920

• Employment discrimination based on gender outlawed by Civil Rights Act, 1964

• Title IX, 1972 prohibits gender discrimination in higher education (sports)

• Sexual harassment is forbidden

Other Major Civil Rights Advances

• Americans with Disabilities Act, 1990– Requires businesses with more than 24 employees

to make offices accessible to disabled– Requires public places be accessible whenever

possible