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VI. Judical Branch/Civil Liberties/Civil Rights. A. Rule of Law v. Rule of Men. 1. Define Rule of Law – a. society establishes regulations, principles + norms coordinated by unbiased individuals.

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Vi judical branch civil liberties civil rights

VI. Judical Branch/Civil Liberties/Civil Rights

VI. Judicial Branch/Civil Liberties/Civil Rights

A rule of law v rule of men
A. Rule of Law v. Rule of Men

1. Define Rule of Law –

a. society establishes regulations, principles + norms coordinated by unbiased individuals.

b. A society of laws is ruled by laws because - Justice is blind, it is the arbitrator between adversaries.

1) Criminal law - violation of specific laws that will be punished.

2) civil law - disputes between two sides, that violate statutes (legislative decisions) or common laws (judicial decisions)

VI. Judicial Branch/Civil Liberties/Civil Rights

C participants
c. Participants -

1) litigants

a) plaintiff- the one charging v.

b) the defendant - Cegavske v. SWCTA

c) class action suits- A group who have similar complaints, band together to represent all similarly situated.

d) Cases must be “justiciable disputes”- able to be resolved or the plaintiff can be hit with frivolous charges and must pay the court costs. Most cases are settled “outside” of court. . .a deal is made!

e) SIGS can assist in cases w/ amicuscuriae - Friend of the court” briefs!

f) Lawyers - Difficult to participate in the Judicial drama without a lawyer. It’s a game of laws that lawyers must interpret!

VI. Judicial Branch/Civil Liberties/Civil Rights

A2 federal level judicial br
A2. Federal level - Judicial Br

- Art III - . . . judicial pwr shall extend to all cases, in Law + Equity. . and vested in one Supreme Ct + in such inferior courts.

3. The cases: (page 510)

a. application of the Constitution, fed law, or fed treaty.

b. interpretation of the Constitution, fed law or fed treaty.

c. admiralty + maritime laws

d. US, fed gov’t, fed agency

e. rep of foreign gov’t. i.e. ambassador

f. state sues another state, citizen of another state, or foreign gov’t. BUT states can’t be sued by individual or foreign nation in fed court.

g. citizen v. citizen limit is $50,000 or more.

h. two states vying for same property

VI. Judicial Branch/Civil Liberties/Civil Rights

4 the judicial landscape
4. The judicial landscape-

finding the right court. . .

a. Constitutional courts -

1) Judiciary Act of 1789 gets Fed district cts

a) 91 ct’s

b) These cts have original jurisdiction

c) only ct’s to hold trials w/ juries (only 3% end in ruling, the rest are plea bargained)

d) 675 judges–all picked by Prez/confirmed

VI. Judicial Branch/Civil Liberties/Civil Rights

2) Ct of Intern’tl trade

3) Court of Appeals

a) appellate jurisdiction

b) 12 districts

c) correct mistakes made in district cts.

4) Supreme Ct -

a) original and appellate jurisdiction

b) 9 justices

c) Constitutional issues (14th amendment)

d) Judicial Review . . . Which does what?

Ans- challenges leg + exec branch decisions.

5. Special cts + legislative cts (set up to deal w/ powers of Congress)

VI. Judicial Branch/Civil Liberties/Civil Rights

5 jurisdiction
5. Jurisdiction -

a) original - trial starts here. 90% end here

b) appellate - adverse decision from lower ct. or highest state supreme ct sends it up to US Supreme Ct if the SC wishes to accept the case.

VI. Judicial Branch/Civil Liberties/Civil Rights

6 the judges portfolio
6. The Judges’ Portfolio

a. Presidential nomination w/ Senate vote to confirm the appointment

1) Senatorial courtesy - home state senator can immediately VETO a confirmation w/o discussion.

2) Lifetime appointments for all fed judges

which can enhance a president’s legacy

3) impeachment (7 in US history) is available for “unacceptable” behavior.

4) Judge must meet the “litmus test” - ideological purity is critical and Divided Gov’t makes it more difficult to select and confirm judges. Confirmation could go badly if:

a) you have the minority party in Senate

b) Prez is in the late term selections

c) Judge has ethics violations, can nix nomination. i.e. Clarence Thomas survived, Robert Bork did not. OR maybe one is not qualified. i.e. Myers

VI. Judicial Branch/Civil Liberties/Civil Rights

B qualifications judge search
b. Qualifications (Judge Search)

1) Most are Lawyers

2) Male (5 female selections)

3) White (2 blacks selected, i.e. Thurgood Marshal + Thomas

4) SES - upper middle or upper class

5) Protestants + Catholics

6) Party favorites - only 13 of 111 SC judges non partisan selections. 90% partisan selections.

7) IDEOLOGY is the KEY factor

VI. Judicial Branch/Civil Liberties/Civil Rights

C case work fed questions
c. Case work -- “Fed questions”

1) Judicial review gives fed cts power to “hear” federal questions and . . .

overrule Leg + Exec branches -- overturned 100 rulings

Marbury v. Madison 1801 provided right of Judicial Review. . .

2) Rule of 4culls through 7500 case + selects about 100.

3) Solicitor Genrl assists in Appellate ct case load possibilities. . .

a) writ of mandamus - Ct demands action

b) writ of certiorae- Certificate that requests

A lower court to send up a case to the SC

VI. Judicial Branch/Civil Liberties/Civil Rights

4 deliberations opinions
(4) deliberations + opinions

Chief justice delegates authority to writing WHY we (the SC) voted. Only 1/3 of decisions have been unanimous.

a) concurring - We agree and here is why

OR-could stress a “different” constitutional or legal foundation for the opinion

b) dissenting - we disagree

c) stare decisis - decision stands -

d) need SIX judges to vote -- MAJORITY. Tie votes retains lower Ct decision. Need five votes to set a . . .

VI. Judicial Branch/Civil Liberties/Civil Rights

D precedent
(d) Precedent -

lower cts follows decisions of higher cts. SC can overrule its own decisions (200 times) because times change.

Brown v. Board of Educ (54) (Integrate)


Plessy v. Ferguson (1898)

(Separate but equal)

Congress can re-initiate legislation the following term.

(e) Interpretations can follow strict constructionist beliefs (original intent of the constitution) v.

Activist decisions

Political climate can indicate the ideological tendencies of the bench.

VI. Judicial Branch/Civil Liberties/Civil Rights

D court history
d. Court History -

1) First Quarter - Developmental issues

i.e. Marbury v. Madison

2) 2nd Quarter - Economic issues

Munn v. Illinois (1877) set up ICC

3) Third quarter- social issues (1930s-1980s)

a) Warren Ct set “liberal precedents in education, civil liberties, re-apportionment, 1960’s

b) Burger Ct (a Minnesotan selected by Nixon was more conservative although it set precedent w/ Roe v. Wade.

c) Rehnquist Ct - limited rights established by Warren Ct, not reversed; affirmative action policies severly scrutinized.

d) 4th Quarter – Privacy Issues – Roe v. Wade- Today. . .

VI. Judicial Branch/Civil Liberties/Civil Rights

B civil liberties cl
B.Civil Liberties (CL)

1. define -

Indiv legal and constitutional protections v. Govt.

CL’s are found in the Bill of Rights (1-10) and the SC is the final arbitrator.

Winds of change shift these interpretations, especially in time of war . . . (cartoon)

2. Bill of rights review

a. Freedom of Expression (religious, press, speech, assembly - 1)

b. Privacy (3+4)

c. Defendant’s rights (5-8)

d. Other rights (2,5,9-10)

VI. Judicial Branch/Civil Liberties/Civil Rights

3. Only a federal issue Barron v. Baltimore, states or local gov’t could infringe on civil liberties until SC ruled in 1925 that states must follow SOME 1st Amendment rights

Gitlow v. New York. BUT

4. SC used the 14th Amendment as the precedent, not the 1st. States could NOT abridge 1st Am freedoms.

Incorporation doctrine - States have slowly come under the Bill of Rights.

5. Door is now open for Bill of Rights enforcement:

a. 1st Amendment court cases. . .

VI. Judicial Branch/Civil Liberties/Civil Rights

1. Tinker v DesMoines-Dress codes

2. Gitlow v. N.Y. -Incorporation Doctrine

3. Lemon v. Kurtzman-Aid to churches follows set guidelines

4. Engel v. Vitale- Prayer in schools is unconstitutional

5. School District of Abington Township v. Pennsylvania v. Schempp- Prayer violates establishment clause

6. Near v. Minnesota (1931) -no prior restraint censorship

7. Schneck v. U.S. (1919) -Govt could restrict inflam rhetoric

8. Brandenburg v. Ohio- can incite w /o lawless action

9. Reynolds v. US (polygamy + Mormom church) State prevails

VI. Judicial Branch/Civil Liberties/Civil Rights

10. Roth v. U.S. Obsentity cannot be protected by the 1st

11. Miller v. California Community standards sets Obscen

but what is lewd or offensive?

12. N.Y. Times v. Sullivan -Malice

13. Texas v. Johnson -Flag burning is symbolic speech

14. Oregon v. Smith (drug use. . .laws prevail)

15. U.S. v. Playboy Entertainment Group -Target block v. ban 16. Red Lion v. FCC -Gov’t can restrict broadcasts.

17. Reno v. ACLU - 1st Amendment applies to internet

VI. Judicial Branch/Civil Liberties/Civil Rights

18. Ashcroft v. ACLU – US must use filtering software for porn

19. Ny Times v. US (1971) Pentagon papers can be published. No prior restraint

20. DeJonge v. Oregon (1937) invalidated state laws Freedom of Assembly

VI. Judicial Branch/Civil Liberties/Civil Rights

B restrictions on 1st amendment
b. Restrictions on 1st Amendment porn

  • unprotected speech include obscenity, defamatory speech, pornography, fighting words, seditious speech. The PRess now includes cable, faxes + e-mails

  • Libel (Print) + Slander (Vocal) = Malice

    B) Protected speech: Political Speech - Snyder v. Baptist church is OK

    2) Freedom of assembly restrictions - lawful + nonviolent; order maintained by time, place, manner; precise, fairly administered and content neutral. NO prvt property trespassing! 3P’s

    3) Freedom of religion

  • Establishment clause. . .Engel + Lemon

  • Free Exercise Clause – Oregon v. Smith

VI. Judicial Branch/Civil Liberties/Civil Rights

2 nd amendment
2 pornnd Amendment

  • Who has the right to bear arms?

    State or Individual?

VI. Judicial Branch/Civil Liberties/Civil Rights

C accused rights
c. Accused Rights - porn

4th, 5th, 6th, 7th, 8th Amendments:

1). Original intent to protect rights from political arrests. Now it has expanded to protecting rights of the “accused”.

2). Process (T- )

a). Crime (5 to 1 ratio of what’s reported) > Arrest

(1) Probable (Reasonable) Cause to arrest + gather evidence-4th Amendment restricts unreasonable searches + Seizures + Writ of Habeus Corpus issued forbidding imprisonment w/o evidence (Art 1)

(2) Exclusionary rule- Can illegally seized evidence be used against the accused?

((a)) Yes if . . .

((1)) the evidence was in plain view

((2)) Exigent circumstances - time doesn’t allow securing a warrant

((3)) Auto exception - Probable cause that a crime was committed or may be committed.

((4)) Foreign agents can be “tapped”

VI. Judicial Branch/Civil Liberties/Civil Rights

b). search warrant - “Terry” search - Frisk porn

c) Once apprehended- legal counsel

d) Questioning - no forced incriminations (5th) + no excessive bail (8th)

3) Prosecution ( or plea bargain) > Trial

Speedy trial w/ a jury (6th, Art III) + no double jeopardy (5th); confront witnesses (6th)

4) Verdict > Sentencing (if needed)

No cruel or unusual punishments (8th)

VI. Judicial Branch/Civil Liberties/Civil Rights

21. Mapp v. Ohio- Exclusionary rule holds for states too. porn

22. Miranda v. Arizona - Police questioning of suspects

23. Jacobson v. U.S. - IS IT OR IS IT NOT ENTRAPMENT

24. Gideon v. Wainright- Felony charged defendants need counsel

25. Betts v. Brady - Only Cap Punish defendants get counsel

26 Fuhrman v. Georgia-Sentencing too random, but CP is OK

27. Harmelin v. Michigan -severity isn’t necessarly cruel

28. Gregg v. Georgia-Cap Punish is severe, but not cruel

29. McGlesky v. Kemp-Cap Pun does not violate 14th Amend


VI. Judicial Branch/Civil Liberties/Civil Rights

30. Griswold v.Connecticut-Privacy issue over Birth control 9th

31. Roe v. Wade-Trimester ruling unleashed abortion issue

32. Webster v. Reproductive Health Services-states can control who performs abortions, i.,e. state employees

33. Rust v. Sullivan -No fed funds for planning abortions

34. Planned Parenthood v. Casey- abortions can be regulated

35. Sternberg v. Carhart -partial birth abortion is legal

36. Cruzan v. Director, Missouri Dept of Health-patients can refuse med treatment- informed suicide

VI. Judicial Branch/Civil Liberties/Civil Rights

37. Bd of Ed v. Earls – 9th Drug testing is Not unreasonable search.

38. US v. Drayton et al – Weakened exclusionary rule w/o empowering police

39. Atkins v VA., outlawed Death Pen for mentally retarded.

40. Hamdi v. Rumsfeld-Security conditions do not revoke a captured combatant’s rights to redress his/her grievances.

41. District of Columbia v. Heller Right to bear arms 2nd Amendment; city can’t forbid weapons.

42. Ring v. AZ., Juries must deliver death sentences.

43. Kyllo v. US- High Tec surveillance needs a warrant

44. Dickerson v. US– Can’t undermine Miranda. It’s a constitutional rule!

VI. Judicial Branch/Civil Liberties/Civil Rights

Right to bear arms
Right to Bear Arms 9th

2nd Amendment states: A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Court held that:

1) Although the amendment lacks interpretation\

a) DC’s actions were in conflict with the majority of state rulings.

b) DC’s actions were far too encompassing. . .”all weapons should be restrictive”.

c). States still prohibited “concealed weapons”.

d)Takes away the right (or liberty) of self-defense.

e) 5-4 ruling, Scalia wrote majority opinion

VI. Judicial Branch/Civil Liberties/Civil Rights

Vi cee civil rights
VI. Cee. Civil rights - 9th

Providing equality to the minority/majority

1. The question is NOT can gov’t treat people of different races or ethnic nationality differently. . . But it is whether such differences in treatment are reasonable.

2. Historical examples

a. Native Americans

b. Irish discrimination in the NE

c. Japanese-Americans

d. women entering med school in the ‘20’s

e. Rich people get taxed more than poor people.

f. Except in some cases, classifying people on the basis of race or ethnicity is unreasonable - “Suspect Classifications”

VI. Judicial Branch/Civil Liberties/Civil Rights

g. The Constitution does ensure (ALTHOUGH never specifically mentioned) that

1) Gov’t does not discriminate against us

2) Gov’t protects us from interference by private individuals.

h. Framers referred to these rights as “NATURAL RIGHTS”, rights of all people to dignity and worth.

Today they are called HUMAN RIGHTS.

VI. Judicial Branch/Civil Liberties/Civil Rights

3 equality
3. Equality - mentioned) that

a. Promote equality OF:

Freedom “to” and Freedom “from” unless it compromises someone else’s right

1) “E”of opportunity - go for it, you are the catalyst, It also means competition. You are the mover!

2) “E”of Outcome - i.e. Affirmative Action - not just a boost but Gov’t has an obligation to promote minority development. Project evolved from helping the black male to the white female.

VI. Judicial Branch/Civil Liberties/Civil Rights

3) The opposite of affirmative action is Discrimination - denying access.

4). Equal Justice - not equal results or equal rewards. . .the Constitution does NOT intend to provide equal condition. . . just equal opportunity - Life should get better.

a) 1st mention of equality is in the 14th Amendment - All will have “equal protection” unless there is a “compelling public interest” to discriminate.

b) Burden of proof is on the state. THEREFORE . . . to right a past wrong, I may have to discriminate to RIGHT past ills for a period of time!

VI. Judicial Branch/Civil Liberties/Civil Rights

5 black issues
5. Black issues- denying access.

a. although the 13th Amendment prohibits

slavery – 1865 Overturned

Dred Scott v. Sanford

b. ????Amendment Equal protection – 1868


c. ??? Amendment - Right to vote (1870)

15th established racial equality for men . . .

d. Society did not transform as quickly. Civil War is often seen as more of an economic conflict than a racial conflict. So race issues took more time to resolve.

e. Segregation and White Supremacy prevailed. Reconstruction ended in 1877 w/ Whites in control of the south, and blacks were left to

Jim Crow Laws that preached a separate society.

VI. Judicial Branch/Civil Liberties/Civil Rights

I e plessy v ferguson
i.e denying access. Plessy v. Ferguson

1) voting

2) Housing

3) Job procurement

4) accessibility to public accommodations

f. NAACP formed in 1910.

g. During WWI, Blacks migrated north to the cities and their sheer numbers became a political force as middle class became accessible

h. During WWII. . .blacks sought judicial relief.

(1) President Truman and Eisenhower integrated the military and Fed Bureaucracy

VI. Judicial Branch/Civil Liberties/Civil Rights

F 1950 s blacks seek political muscle
f. 1950’s - Blacks seek political muscle- denying access.

1) Martin Luther King, using the First Amendment - Freedom of petition- sought relief via civil disobedience and the white supremacists responded with fire hoses and police tactics that assimilated Nazi Germany. Rosa Parks

2) As Congress dragged its feet w/ a Southern Senatorial block, the executive and judicial branches responded.

a) Brown v. Board of Education (1954)

Segregation by law “de jure segregation” was unconstitutional. But de factosegregation- segregation by choice or reality- still prevailed

until Swann v. Charlotte Mecklenburg Board of Education 1971, the SC ruled that schools will re-district to end segregation via busing, a very unpopular device to integrate.

VI. Judicial Branch/Civil Liberties/Civil Rights

(b) Rosie Parks boycott of Montgomery (1955). Little Rock school integration ‘57.

Whites joining the fray. . .

(c) Birmingham riots 1963

(d) March on Washington 1964

(e) JFK promoted civil rights legislation and it was enacted with the Civil Rights Act of 1964

(f) Hot summers of 1965-1967: Watts, Detroit, Minneapolis, Harlem

(g) Kerner Commission said we have two Americas, white and black and it would take a commitment on the nat’l level to integrate

VI. Judicial Branch/Civil Liberties/Civil Rights

G the feds respond
g. The Feds respond: school integration ‘57.

1) How does one get access to gov’t?

a) Da Vote - Voting Rights Act of 1965 ended the means to effect suffrage.

b) Poll taxes (24th Amendment), White primaries, gerrymandered districts, all were thrown out. Ended the Grandfather clause; Literacy tests; Protest turned to politics = 12,000 African Americans now hold elected office, as compared to 70 in 1965.

c) This has also established “minority v. majority districts that promoted minority electorates . . .

but Shaw v. Reno and other cases has condemned the design of districts using race as the predominant factor.

VI. Judicial Branch/Civil Liberties/Civil Rights

6 women issues
6. Women Issues school integration ‘57.

- Equality > Privacy > Harassment > Choice

a. Blacks showed that judicial route was the quickest way to gain a semblance of equality.

b. A “paternal” court protected women until the 1970’s, but the feminist movement went from social to political and judicial movement and the courts responded.

c. Women in the work force has provided economic equality (by some measurements). Political equality came with the 19th Amendment (1920) but ERA fell short in 1987.

VI. Judicial Branch/Civil Liberties/Civil Rights

D judicial interpretations
d. Judicial interpretations school integration ‘57.

revolves around the reasonable standard

1) Rational base test - Is it reasonable to have boys’ compete VS girls in hockey; or force ALL occupations to have equal number of male and female employees when certain occupations may “fit” a man more, or a female more

or there may not be employees to fill these spots by gender? Reed v. Reed 1971 1st discrimination ruling based on gender.

2) Heightened/medium scrutiny- Important gov’t objectives exist for gender based law. Orr v. Orr. Alimony only to women. . .NOTTT

3) Strict Scrutiny standard. A Man gets the raise because he is the major wage earner, not the female. . .NOTTTTT. Fundamental rights are at issue here. . .

e. Civil Rights Act of ‘64 + ‘72 banned sex discrimination in hiring, firing and compensation.

VI. Judicial Branch/Civil Liberties/Civil Rights

F can women be drafted no
f. Can women be drafted? No. . . school integration ‘57.

Rostker v. Goldberg 1981 - SC will give “great deference” to Congressional policy.

The FATE of ERA was determined with this ruling because if ERA passed, the Rostker ruling could be at risk. Today, women are not allowed in ground troop combat positions and limited naval operations.

g. Womens’ issues now have evolved into Sexual harassment cases as women have moved into the Workplace. Title IX legislation has provided women opportunity in the “Public school” sector which has initiated her advancement in the Private sector.

1) Sexual harassment guidelines

a) requesting sexual favors - Quid pro quo rule - employer is liable

b) hostile environment - liability + negligence

c) Most federal laws are vague

VI. Judicial Branch/Civil Liberties/Civil Rights

H comparable worth
h. Comparable worth school integration ‘57.

- Equal pay for equal worth. . .Women still earn as much as 70% less than their male counterparts in the private sector. Who will pay for equity?

i. Pro-life v. pro choice - Roe v. Wade was, according to the SC, a privacy issue, not when life begins. Opponents say No

1.) Hyde Amendment followed, restricting fed funds to lower income women if the mother is not in danger.

2) SC has given states more leeway in controlling abortions, but still supported women in not contacting their husbands, and partial birth abortions.The issue evolves

VI. Judicial Branch/Civil Liberties/Civil Rights

7 affirmative action
7. Affirmative Action- school integration ‘57.

providing compensation to a discriminated group. Moving beyond equal opportunity to equal results.

a. Results have provoked reverse discrimination charges - Regents of U of Calif v. Bakke. He was denied admittance on race although he had higher test scores . SC favored Bakke, no more quotas, but race can be a factor.

b. Adarand . . .minority quotas are unconsti

VI. Judicial Branch/Civil Liberties/Civil Rights

8 civil rights quests
8. Civil Rights quests school integration ‘57.

has moved into a variety of arenas

a. Age discrimination + mandatory retirements. Rationale basis test.

b. Youth Tests-- Can you divorce your parents. . .Can you pick your legal guardians?

c. Disabled Americans - Americans w/ Disabilities Act of 1990 (ADA)

1) define disabled - AIDS victims, Eye glass wearers. . .Who will bear the cost?

d. Gay + Lesbian Rights - Rights to privacy to Hate crimes to the Boys’ Scouts, who denied a homosexual entrance into the program.

e. Ethnic Inequality-minority/majority grows

f. But the SC has not always been pro-affirmative action. . .Baake, Adarand v. Pena, the Michigan cases has tempered the zeal of the federal gov’t.

VI. Judicial Branch/Civil Liberties/Civil Rights