PS 461: Civil Liberties

PS 461: Civil Liberties Qs on Judicial Review

Contestants • Beau Baustien • Paul Eads • Megan Howard • Jesseca Johnson • Holly Kent • John Klausing • John Mains • Judi Novak • Lori Reifert • Matt Rhodes • Nicholas Thomas • Madison Young

Question 1 • What theory of constitutional interpretation does U.S. Supreme Court Associate Justice Antonin Scalia claim to follow?

Answer 1 • Textualism • Key distinction in the textbook: “Under Scalia’s brand of textualism, it is fair game for justices to go beyond the literal meaning of the words and consider what they would have ordinarily meant to the people of that time…. To other textualists, those we might call pure textualists or literalists, it is only the words in the constitutional text…that justices ought consider. …[T]his distinction—between original intent and literalism—[may] lead to some extraordinary differences in case outcomes.”

Modes of Legal Interpretation Discussed in the Text • Original Intent or Understanding • Textualism I: Literalism • Textualism II: Meaning of the Words • Polls of Other Jurisdictions • Major differences between polls of US jurisdictions and polls of courts abroad • Stare Decisis • Obiter Dictum • Logical Reasoning • Balancing Approaches • Cost-Benefit Analysis

Question 2 • What is the most common way for a legal case to reach the Supreme Court?

Answer 2 • Writ of Certiorari • Supreme Court Rule 10: Considerations Governing Review on Certiorari • Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers:

(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power; • (b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;

(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court. A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.

Question 3 • What does the Supreme Court call the session at which justices ask questions of attorneys on both sides of a case?

Answer 3 • Oral Arguments

Question 4 • Who wrote the majority opinion in Marbury v. Madison?

Answer 4 • Chief Justice John Marshall

Question 5 • To what position did President John Adams intend to appoint William Marbury?

Answer 5 • Justice of the Peace for the District of Columbia

Marbury v. Madison (1803) "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each." “So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.”

Question 6 • What was William McCardle’s profession?

Answer 6 • Journalist • Newspaper editor from Natchez, Mississippi An Example of one of McCardle's editorials in the Vicksburg Times (Nov. 6, 1867):"There is not a single shade of difference between Schofield, Sickles, Sheridan, Pope and Ord [generals in charge of Reconstruction]:...They are all infamous, cowardly, and abandoned villains who, instead of wearing shoulder straps and ruling millions of people should have their heads shaved, their ears cropped, their foreheads branded, and their persons lodged in a penitentiary."

Ex Parte McCardle (1868) “It is unnecessary to consider whether, if Congress had made no exceptions and no regulations, this court might not have exercised general appellate jurisdiction under rules prescribed by itself. For among the earliest acts of the first Congress, at its first session, was the act of September 24th, 1789, to establish the judicial courts of the United States. That act provided for the organization of this court, and prescribed regulations for the exercise of its jurisdiction.” “The exception to appellate jurisdiction in the case before us, however, is not an inference from the affirmation of other appellate jurisdiction. It is made in terms. The provision of the act of 1867, affirming the appellate jurisdiction of this court in cases of habeas corpus is expressly repealed. It is hardly possible to imagine a plainer instance of positive exception. “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words. “What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle.”

Question 7 • What principle of justiciability was set aside for the 1973 case, Roe v. Wade?

Answer 7 • Mootness • Wikipedia: “A matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law. Thereby the matter has been deprived of practical significance or rendered purely academic.” • “There are three major exceptions to this mootness rule. These are cases of "voluntary cessation" on the part of the defendant; questions that are "capable of repetition, yet evading review"; and questions involving class actions where the named party ceases to represent the class.”

Question 8 • What concept of justiciability concerns WHO has the right to initiate a lawsuit?

Answer 8 • Standing • There are three constitutional standing requirements: • Injury: The plaintiff must have suffered or imminently will suffer injury - an invasion of a legally protected interest which is concrete and particularized. The injury must be actual or imminent, distinct and palpable, not abstract. This injury could be economic as well as non-economic. • Causation: There must be a causal connection between the injury and the conduct complained of, so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court. • Redressability: It must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury.

Other Concepts of Justiciability • Advisory Opinions • Ripeness • Exhaustion of all remedies • Collusion • Political Questions

Question 9 • How many federal judicial districts are in the U.S. court system?

Answer 9 • 94 • Lexington is in the Eastern District of Kentucky. KY also has a Western District. • KY falls under the U.S. Court of Appeals for the Sixth Circuit, along with Michigan, Ohio and Tennessee. • There are 11 numbered circuits, plus the Federal Circuit and the District of Columbia Circuit.

Tiebreaker Question • How many cases were filed in the U.S. Supreme Court during the 2005-6 term? • The winner will be the student who comes closest to the actual number, without going over.

Tiebreaker Answer • 8,521 • The total number of cases filed in the Supreme Court increased from 7,496 filings in the 2004 Term to 8,521 filings in the 2005 Term–an increase of 13.7%. The number of cases filed in the Court‘s in forma pauperis docket increased from 5,755 filings in the 2004 Term to 6,846 filings in the 2005 Term–a 19% increase. The number of cases filed in the Court‘s paid docket decreased from 1,741 filings in the 2004 Term to 1,671 filings in the 2005 Term–a 4% decline. During the 2005 Term, 87 cases were argued and 82 were disposed of in 69 signed opinions, compared to 87 cases argued and 85 disposed of in 74 signed opinions in the 2004 Term. No cases from the 2005 Term were scheduled for reargument in the 2006 Term.

PS 461: Civil Liberties