RUBRIC for 1996 Question on Pres appts:
(a) 2 Patterns:
• Increase in number of ind; (no credeit for ind party)
• dems appt dems; Rs appts rs
• Inds rarely appt
(b) POLITICAL Factors
• Sen Courtesy
• Litmus test for issues
• Diversity (make it pol)
• Partisanship
• Patronage
• Ideology (con/ lib or restraint/ active or strict /loose)
• Sen Jud Committee or Full Senate (must pass, appeal esp if divided govt)
• NO CREDIT for competence (not political) or public opinion
(RUBRIC for 967Question on court activism and ideology
(a) pattern:
• variation in activism
• Cyclical pattern
• Very few laws decl unC
(b) Activism can be lib or conserv—this is the ONLY ok anser
(c) Other Factor
EXPLAIN with eg
Cases or opp presented to ct
Nature of times
Increased legislation
The Roberts Court,
Back row (left to right):Sonia Sotomayor, Stephen G. Breyer, Samuel A.
Alito, and Elena Kagan. Front row (left to right): Clarence Thomas,
Antonin Scalia, Chief Justice John G. Roberts, Anthony Kennedy, and
Ruth Bader Ginsburg
SEE THIS
http://www.nytimes.com/interactive/2010/07/25/weekinreview/2009
0725_supremecourt_pano.html?ref=us
And this http://www.nytimes.com/interactive/2010/07/25/us/scotus-
quiz.html?ref=supreme_court
Listen to: capital steps: life term
How judges are selected in states
November 3, 2010
Ouster of Iowa Judges Sends Signal to Bench
By A. G. SULZBERGER
DES MOINES — An unprecedented vote to remove three Iowa Supreme Court justices
who were part of the unanimous decision that legalized same-sex marriage in the state
was celebrated by conservatives as a popular rebuke of judicial overreach, even as it
alarmed proponents of an independent judiciary.
The outcome of the election was heralded both as a statewide repudiation of same-sex
marriage and as a national demonstration that conservatives who have long complained
about “legislators in robes” are able to effectively target and remove judges who issue
unpopular decisions. Leaders of the recall campaign said the results should be a warning
to judges elsewhere. “I think it will send a message across the country that the power
resides with the people,” said Bob Vander Plaats, an unsuccessful Republican candidate
for governor who led the campaign. “It’s we the people, not we the courts.”
But critics of the campaign, including those who see the courts as a protector of minority
rights, said the politicization of uncontested judicial elections represented a danger.
“What is so disturbing about this is that it really might cause judges in the future to be less
willing to protect minorities out of fear that they might be voted out of office,” said Erwin
Chemerinsky, the dean of the University of California, Irvine, School of Law. “Something
like this really does chill other judges.”
The Courts Relations with other institutions:
Justiciable Disputes
There must be an actual controversy between the parties, meaning that the parties
can not agree to a lawsuit where all parties seek the same particular judgment from
the court (known as a collusive suit or friendly suit); rather, the parties must each be
seeking a different outcome.
The question must be neither unripe nor moot.
An unripe question is one for which there is not yet at least a threatened injury
to the plaintiff, or where all available judicial alternatives have not been
exhausted.
A moot question is one for which the potential for an injury to occur has ceased
to exist, or where the injury has been removed.
The suit must not be seeking judgment upon a political question.
Political questions involve matters where there is: "a textually demonstrable constitutional
commitment of the issue to a coordinate political department" (meaning that the U.S.
Constitution requires another branch of government to resolve questions regarding the
issue);
If the case fails to meet any one of these requirements, the court cannot hear it.
.
The jurisdiction of the federal courts
• Dual court system State courts are the real workhorses in the dual
court system. In the early 1990s, state courts averaged about 90
million cases annually, compared with 270,000 in federal courts.
• Federal cases listed in Article III and Eleventh Amendment
– Federal-question cases: involving U.S. Constitution, federal law,
treaties
– Diversity cases: involving different states, or citizens of different
states
• Some cases can be tried in either court. Example: if both federal and
state laws have been broken (dual sovereignty) Justified: each
government has right to enact laws and neither can block prosecution
out of sympathy for the accused
• State cases sometimes can be appealed to Supreme Court
• remember to hear the case, not only must the court have either federal
question or diversity jurisdiction, the case must not be moot and the
plaintiff must have standing
The U. S. Supreme Court has two different kinds of jurisdiction. Original
and appellate.
Jurisdiction is the legal authority to decide a lawsuit brought before a
Court. This is the first question the Court has to decide .... does this
Court have the legal authority to decide this lawsuit? If it does, it will hear
and decide the case. If it does not have jurisdiction over the case to hear
and decide it, it will dismiss the case.
Now, what is ORIGINAL jurisdiction? This is the kind where the Court
has power to hear the case begin in it. The case starts there.
On the other hand APPELLATE jurisdiction is the legal authority to
REVIEW a case begun in a lower court. If the parties are not satisfied
with the decision of say the FEDERAL DISTRICT COURT they may
appeal to the Circuit Court of Appeals .... this is the first level of review of
the lower court's decision.
The Supreme Court is given its ORIGINAL jurisdiction by the U. S. Constitution,
and in an early case, Marbury v Madison, 1 Cranch 137 (1803) the Court held
that Congress cannot add to or change the ORIGINAL jurisdiction given the
Court by the Constitution.
Constitution's grant of ORIGINAL JURISDICTION: ARTICLE III, SECTION 2:
...... (omitting non-relevant parts)
In all cases affecting ambassadors, other public ministers and Consuls, and
those in which a State shall be a party*, the Supreme Court shall have original
jurisdiction (emphasis added),
"In all other cases before mentioned, the Supreme Court shall have appellate
jurisdiction..."
*An example of such a case is the 1998 case of State of New Jersey v. State of New
York. In this case, the two states litigated the question of which state had jurisdiction
over Ellis Island. "Original jurisdiction" cases are rare, with the Court hearing one or two
cases each term.
So there are three ways a case can
Reach the Supreme Court
Original jurisdiction
Through an appeal from a state supreme court
Through an appeal from a federal appellate court
Federal vs. State Courts
Federal Courts State Courts
U.S. Supreme Court State Supreme Court
Intermediate
U.S. Court of Appeals
Appellate Courts
U.S. District Courts Trial Courts
of General Jurisdiction
Magistrate Courts
Lower Courts
And something else to remember about the
Supreme Court: it exercises BOTH judicial review
AND statutory construction
More than half the cases the court agrees to hear are not constitutional, but statutory,
presenting questions much like the one posed by Hackworth v. Progressive Casualty
Insurance Company, No. 06-1300. To whom does a statute apply? Precisely what
behavior does it prohibit? How does it fit with another law on the books that seems to
suggest something quite different?
The 73 cases the court selected for argument during the current term included 41
statutory cases, 27 that raised chiefly constitutional issues and 5 other kinds that raised
issues of retroactivity and jurisdiction. (These calculations are subject to interpretation;
at the margins, the categories can easily overlap, as when the court is asked to interpret
a statute in such a way as to avoid a potential constitutional problem.)
Statutory cases are not necessarily less challenging for the justices or less
important to the country than constitutional cases; whether the Clean Air Act
applies to global warming, to recall one statutory case from the current term, is a
question with more impact than whether a certain type of appeal in patent cases meets
the jurisdictional requirements of Article III of the Constitution, to recall another case,
this time a constitutional one.
The Majority
The Minority
The Decision
The Supreme Court ruled that the Environmental Protection Agency has the authority to regulate
heat-trapping gases in automobile emissions. The court further ruled that the agency could not
sidestep its authority to regulate the greenhouse gases that contribute to global climate change
unless it could provide a scientific basis for its refusal.
Common law is the system of deciding cases that originated in England and
which was latter adopted in the U.S.. Common law is based on precedent (legal
principles developed in earlier case law) instead of statutory laws. It is the
traditional law of an area or region created by judges when deciding individual
disputes or cases. Common law changes over time.
The U.S. is a common law country. In all states except Louisiana, which is
based on Napoleonic code, the common law of England was adopted as the
general law of the state, or varied by statute. Today almost all common law has
been enacted into statutes with modern variations by all the states. Broad
areas of the law, such as property, contracts and torts are traditionally part of
the common law. Because these areas of the law are mostly within the
jurisdiction of the states, state courts are the main source of common law. The
area of federal common law is primarily limited to federal issues that have not
been addressed by a statute.
Similar ideas but . . . Precedent, stare decisis,
Limits on the Courts: Nature of Courts
stare decicis: principle of discipline self-imposed on the
judiciary. It doesn’t prevent the overruling of precedents, but it
puts a heavy burden on the party seeking to have precedent
overruled
The Impact of the Lower Courts.
If lower courts dislike a Supreme
Court ruling, they cannot overturn
it but can seek to apply it in as
limited a fashion as possible.
The Argument over Interpretation of the Constitution
Original Intent: Judges and justices should determine and apply the
original intent of the framers;
Reagan's Attorney general, Edwin Meese, "A jurisprudence of original
intent is not difficult to describe. Where the language of the Constitution
is specific, it must be obeyed, Where there is a demonstrable consensus
among the framers and ratifiers as to a principle stated or implied by the
Constitution, it should be followed. Where there is ambiguity as to the
precise meaning or reach of a constitutional provision, it should be
interpreted and applied in a manner so as to at least not contradict the
text of the Constitution itself."
Justice Antonin Scalia said: "The
Constitution is not a living organism.
It is a legal document. It says some
things and doesn't say others.“
Versus “contemporary meaning:
Constitution is a flexible document that should be interpreted in the context of the
contemporary world.
In response to Meese's view, Justice Brennan called the attorney general "arrogant"
and "doctrinaire" stating that "it is impossible to gauge accurately the intent of the
framer's on the application of principle to specific, contemporary questions." He and
others maintained that what appears to be deference to the intentions of the framers is
just a cover up for conservative decisions. They pointed out that trying to guess or
reconstruct the framer's intentions is very difficult. Most of the issues today derive from
a world the framers could not even comprehend--school bussing, the Internet,
wiretapping etc. Furthermore, there is often no record of the framers intentions as a
whole; they embraced general principles, not specific solutions and they often
disagreed. According to Brennan, the Supreme Court must apply the Constitution in a
contemporary context, and adapt it to present needs--the Constitution was never
intended to preserve a "pre-existing society" but to "put into place new principles that
the prior political community had not sufficiently recognized.
As he saw it, "the genius of the Constitution rests not in any static meaning
it might have had in a world that is dead and gone, but in the adaptability
of its great principles to cope with current problems and current needs.
What the constitutional fundamentals meant to the wisdom of other times
cannot be their measure to the vision of our times."
Justice Ruth Bader Ginsburg is shown speaking in Ohio last week. In
a speech last month in South Africa, she discussed what she called
"dynamic versus static, frozen-in-time constitutional interpretation."
What is the correlation between ideology and original vs
contemporary meaning?
Contrast that to Judicial Activism vs Judicial Restraint
Judicial activism: the philosophy that courts should take an active role in solving social,
economical and political problems
Judicial restraint: philosophy that the courts should play minimal policy making roles, and allow
the states and the other 2 branches of the fed. govt. to solve social, economic and political
problems. One measure is the number of laws declared unconstitutional. Proponents emphasize
that federal judges are unelected and so removed from popular control. They point out also that
judges are trained as lawyers, expert in defining rights and duties, but not is designing complex
institutions
Both liberals and conservatives accuse the court of judicial activism
An activist court that was
Conservative
A same-sex marriage ruling sparked a removal campaign.
Proponents of an independent judiciary were alarmed at a vote to remove three Iowa
justices who were part of a unanimous decision to allow gay marriage.
Whole process of nomination becoming much more contentious--
"borking" is on the rise
1. During divided govt event slower
2. Senatorial courtesy practices also complicates- in fact it has the
potential to shut down the nomination process in appellate court districts
where no state has two senators from the party in control--that's federalism
for you!
3. Process has become "tit for tat" -- when dems controlled senate they
said repubs were obstruction; when repubs control senate they say dems are
obstructing
4. 2004 Republicans consider the “nuclear option” ie getting rid of the
filibuster for judicial nominations b/c Democrats have been filibustering
some of their nominees; compromise reached by (14) senators “gang of 14”
(Mcain one of them--now getting flack from conservatives)
According to The New York Times, the verb to bork might
be defined as "to destroy a judicial nominee through a
concerted attack on his character, background and
philosophy.“ This definition stems from the history of the
fight over Bork's nomination. Bork was widely lauded for
his competence, but reviled for his character and
philosophy.
Elite Recruitment: Nominating Federal Judges/Justices:
1) President selects potential candidates, usually with the advice from White
House Counsel.
2) President usually interviews or meets with the candidates for the
Supreme Court in private. While the public is frequently aware of these
meetings, the contents of the meetings are usually not disclosed.
Occasionally, the name of a nominee is unofficially leaked to the press.
3) The White House Counsel or other senior administration official will meet
with federal judicial nominees. The president may or may not meet with a
federal judicial nominee.
4) President submits the name(s) to the Senate. SJC is “gatekeeper” but
takes vote on floor; Remember “senatorial courtesy”
5) In some cases, interest groups will run advertisements in favor of or
against a nominee, usually at the Supreme Court level. These public
relations campaigns are aimed at convincing the public and the Senate to
support or oppose the Supreme Court (or federal judicial) nominee.
Factors affecting selection of federal judges
Senatorial courtesy (not for Supreme Court!)--gives senators from a
nominee's home state virtual veto
Senate judiciary committee “the gatekeeper” screen the nominees and sends
a recommendation to Senate floor for approval or rejection
Senate: majority vote needed to confirm--has rejected approximately 21%
this century--much more contentious since Kennedy; filibuster can stop
Political parties--generally from same party
Race--and gender
Ideology: It is difficult to ensure however; predicting future behavior is
hard; new issues can arise which president did not consider; Potential judges
can refuse to answer direct questions about how they would rule on a
particular case
age--since it is for life, will outlast president's term
ABA rating—Bush ends
In the United States, senatorial courtesy is the custom whereby
the Senate will refuse to confirm any presidential appointments if
objections are raised by either
the senior senator of the president's political party, or
the senators from the state to which the appointment applies.
Senatorial courtesy is strictly observed in connection with federal
district court judgeships, U.S. attorneys, and federal marshals.
Except in rare cases, senatorial courtesy is not honored by the
president or the entire Senate when the president and home state
senators are of different parties.Senatorial courtesy is strictly
observed in connection with federal district court judgeships, U.S.
attorneys, and federal marshals. Except in rare cases, senatorial
courtesy is not honored by the president or the entire Senate when
the president and home state senators are of different parties.
Diversity on the Federal Courts
Characteristics of Federal District Court Appointees, Presidents Johnson-Clinton
Johnson Nixon Ford Carter Reagan Bush Clinton
Sex 98.4% 99.4% 98.1% 85.6% 91.7% 80.4% 71.5%
Male 1.6% 0.6% 1.9% 14.4% 8.3% 19.6% 28.5%
Female
Race 93.4% 95.5% 88.5% 78.7% 92.4% 89.2% 75.1%
White 4.1% 3.4% 5.8% 13.9% 2.1% 6.8% 17.4%
Black 2.5% 1.1% 1.9% 6.9% 4.8% 4.0% 5.9%
Hispanic 0% 0% 3.9% 0.5% 0.7% 0% 1.3%
Asian 0% 0% 0% 0% 0% 0% 0.3%
Native American
Experience 31.3% 28.5% 34.6% 44.6% 36.9% 41.9% 48.2%
Judiciary 47.4% 60.9% 43.2% 49.9% 49% 45.9% 29.3%
Law 21.3% 10.6% 21.2% 5% 13.4% 10.8% 11.5%
Government 0% 0% 0% 0.5% 0.7% 1.4% 1.0%
Other
Party 94.3% 7.3% 21.2% 91.1% 4.8% 6.1% 87.5%
Democrat 5.7% 92.7% 78.8% 4.5% 91.7% 88.5% 6.2%
Republican 0% 0% 0% 4.5% 3.4% 5.4% 6.3%
Independent
NY Times October 14th, 2005
The process in detail:
Senate Judiciary Committee holds a committee hearing in which the committee
members question the nominee and other witnesses (such as friends and previous co-
workers) about the nominee’s background and qualifications. These hearings are
televised and segments are frequently shown on news programs. All Senators have
access to transcripts and tapes of the hearings. (Before the hearing, both committee staff
and the FBI will have completed an extensive background check on the nominee. This
check will ensure that the nominee has paid his taxes, has not been convicted of a serious
crime, is a person of good standing in his/her community, etc.)
Senate Judiciary Committee, led by the chairperson, holds a vote on whether or not
to recommend the nominee for confirmation.
Full Senate votes on whether or not to confirm the nominee. A simple majority (51
votes or more) is required. However, filibusters by the minority party can prevent a vote
on a judicial nomination from coming to the floor. In recent years, with a closely divided
Senate, this has become a more common tactic used by the minority. Since it takes 60
votes to cut off a filibuster and no one party has had that many members, it is a powerful
tool used by the minority party to block a nomination. Such tactics are often criticized by
the majority party as unconstitutional.
If the full Senate votes to confirm by 51 votes or more, the nominee is confirmed.
Courts as Policy Makers: Key Powers
Judicial Review
Statutory Construction
Power of Supreme court to overrule precedent
Power to order remedies
Limits on the Courts
Nature of Courts: standing, no enforcement, Principle of stare decicis, moot
questions, political Questions” The doctrine that many issues (political questions)
ought to be resolved by the elected branches of government is also a restraint.
Limits on the Courts . . . continued
President : power to appoint, propose amending constitution or
rewriting law; propose changing size of Court or jurisdiction of Court,
power to make ______ appts
Bush nominates Alito for Supreme
Court
USA October 2005
Limits on the Courts . . . continued
Congress: senate confirmation, Congressional power to impeach and remove,
Constitutional Amendment (start the process); Rewrite legislation, Redefine
federal jurisdiction of the courts--entire jurisdiction for lower courts, appellate
for Sup.ct. (what kinds of cases the courts will or won't have) Increase the
number of courts and judges and thus the type of judges to Congress and the
President likes. eg. in 1979, Congress (democratic) created 152 new District
and appeals court positions--then Carter gets to appoint ;Redefine number of
justices on sup.ct.
Supreme Court nominee Samuel Alito being sworn in
during his confirmation hearing before the Senate Judiciary
Committee on Capitol Hill, Monday
Limits on the Courts . . . continued
Public opinion—at least for Supreme Court
In support of Alito
Protesters marched in Washington Monday in an event
organized by abortion opponents. President Bush
addressed the crowd via telephone. NYT Jan 23, 2005
A group of Alaskans gathered in Washington on Wednesday in support
of a $2.5 billion punitive damages award against Exxon Mobil previously
upheld by a federal appeals court NYT Feb 28 2008
.
Limits on the Courts “John Marshall has made his ruling; now let
him enforce it”
In Worcester v. Georgia, the United
States Supreme Court held that Cherokees
were entitled to federal protection from
the actions of state governments which
would infringe on the tribe's sovereignty .
The court ruled that the Cherokee nation
was a "distinct community" with self-
government "in which the laws of
Georgia can have no force
The state of Georgia ignored the ruling.
This is what Jackson actually said:
"the decision of the supreme court has fell
still born, and they find that they cannot
coerce Georgia to yield to its mandate."
Friends Of Health Overhaul Defend It In
Federal Court Case
Nov 17 2010
In case you missed it, Friday was the last day for
people with something to say about the new federal
health law to file briefs in the huge multistate lawsuit in
Florida challenging its constitutionality.
Since so many winning Republicans ran on, among
other things, opposition to the law, it's not a huge
shock that many of those so-called amicus filings
came from prominent GOPers seeking to add their two
cents to the charge that the law exceeded Congress'
authority.
Post WWII Courts: Warren 1953-1969 an
activist court that was . . .The most liberal court
Rights of defendants
•Brennon: “a civilization should be judged by the
treatment of its outsiders”
•used _____ _____clause of 14th amendment to
apply rights in B of Rights to states
Mapp v Ohio (exclusionary rule
applied to states)
Gideon
Escobedo (right to remain silent)
Miranda
Brown vs Board of Education 1954
First Amendment: Engle v. Vitale 1962 (no school prayer)—
solid wall
Almighty God, we
acknowledge our
dependence upon thee,
and we beg Thy blessings
.
upon us, our parents, our
teachers and our Country
Happy members of the group
that challenged New York's
daily prayer in Engel v Vitale.
Apportionment: Baker v Carr--tells states how to draw lines
Privacy: Griswold v. Connecticut--
created from "penumbras“
Post WWII Courts . . . Continued
Burger court--69-86-
More conservative than Warren BUT had some significantly liberal
decisions: Nixon had 4 appointees--helped some but pres. always get
surprises
Defendant's rights:
weakened exclusionary
rule:
Affirmative Action–
• Bakke--says quotas are
not ok, but race can be a
factor but . .
• US Steelworker v. Weber,
court found that Kaiser
aluminum's special
training program, which
employed a quota for When Associate Justice Sandra Day O’Connor took
minorities was ok as a her seat on the Burger Court in 1981, she was the
first woman to serve on the Supreme Court of the
means to rectify past
United States. She retired on January 31, 2006
discrimination
Limits on exec: U.S. v Nixon--unanimous no exec. priv in
criminal case
Free speech: Buckly v Valheo
Women's issues: Reed--fist time unconstitutional because of
gender (probate giving male preference as administrator);
Craig v Boren (drink age) medium scrutiny
Abortion: Roe v. Wade 1973
Post WWII Courts . . . continued
Rehnquist court –1986-2006
states rights
stuck down many laws passed by Congress:
•RFRA (Religious Freedom Restoration Act
struck down),
•gun free zone act US v Lopez (struck down), Morrison
Morrison
•Brady Bill in Printz (struck down background
check requirement of Brady bill),
•Violence Against Women Protection act
• ADA when used by state employees:
University of Alabama v. Garrett barred state
employees form using the provision of the ADA.
How? 10th amendment (states rights) 11th amendment (state can't
be sued) and DISALLOWS use of commerce clause and 14th
amendment (which gives Congress power to enforce provisions of
14th amendment).
.
Also uses an open-ended
concept of state immunity that
sees it as an aspect of the
states' "dignity" as "sovereign
entities" rather than anchored in
the actual constitutional text
Later, seemed to take a more pragmatic approach: Tennessee v.
Lane 5/4 (courthouse access) ; and Nevada Department of Human
Resources v. Hibbs 2003 : states can be sued under FMLA because
the law was” an appropriate exercise of Congressional power to
combat stereotypes about female workers' domestic responsibilities
and "thereby dismantle persisting gender-based barriers" facing
women in the workplace." (6/3);
Medical Marijuana
case said federal
power to regulate
commerce trumped
state laws
Rehnquist Continued:
Defendant's rights: more power to police:
•forced confession not necessarily invalid,
•can search a passenger's purse or peek through window blinds
(though can't squeeze packages on a bus and can't search a driver
on a routine traffic violation).
•Police officers do not have to inform bus passengers of right to
refuse permission to be searched; a series of non-legal
circumstances can lead an officer to stop a van he feel suspicious
('totality of circumstances);
•no student privacy interest in freedom from drug testing (all after
school activities)
Rehnquist Continued:
Abortion rights
Casey changes
strict scrutiny to
undue burden
Webster no
funds ok, Rust--
gag rule ok
Affirmative action--gets strict scrutiny--Adarand Construction v Pena
BUT: Michigan affirmative action case—AA is ok, if narrowly
tailored—b/c diversity can be a compelling state interest—5/4 decision;
Rehnquist court continued: Church and state "chinks in the wall“
•Voucher decision "brought to fruition Rehnquist’s 29-year effort to get the court to
accept the concept that a government benefit offered neutrally to religions and secular
institutions, with the money following choices made by private individuals, did not
violate the First Amendment's prohibition against the "establishment of religion.". 5/4
decision
Rosenberger v University of Virginia and Agostini v Felton (state aid ok in remedial Ed
as long as state does not endorse and there is no religious content)
Lambs Chapel (if rent to public groups, have to include churches)
And in 2001 the Court ruled that schools must permit an evangelical religious group to
meet after school (even if it was proselytizing) on school grounds if it was permitting
other groups to do so (Good News Club v. Milford Central School).
but no student led prayers at football games Santa Fe School District v. Doe. (June 19,
2000) (violate dp clause) and Locke v. Davey— a state does not violate the const. if it
chooses not to give scholarships to fund theology students, but does fund other students,
it
Rehnquist court continued
Right of association--boy scouts case Boy Scouts of Am. vs. Dale
The Court held that requiring the Boy Scouts to accept respondent as a
member violated their First Amendment right of expressive association.
It further concluded that the state interests embodied in New Jersey’s
public accommodations law did not justify such a severe intrusion on the
freedom of expressive association.
Sep of power--RFRA and Morrison v Olson (Ind. counsel ok even
though Reagan said it was unconstitutional because it is the function of
the executive branch to initiate and conduct criminal prosecution), line
item veto shifts too much power to pres.; Hamdi—exec doesn’t have
“blank check” in times of war
In Steps Big and Small, Supreme
Court Moved Right June 30, 2007
The Roberts court
The Roberts court is, then, conservative by the
standards of recent history. But is it
conservative in some absolute sense?
“It is fair to say that the Supreme Court both
now and historically has been to the left of the
American public,” said Nathaniel Persily, a
law professor at Columbia and an editor of
“Public Opinion and Constitutional
Controversy” (Oxford, 2008).
“On school prayer, for instance, the Supreme
Court is far to the left of the American
public,” Professor Persily said, referring to
decisions saying that officials may not
organize, lead or endorse prayer or devotional
Bible reading in the public schools.
“On racial issues, it’s pretty clear from the
Michigan cases that the Supreme Court is out
of step with the American public,” Professor
Persily said of the pair of 2003 decisions
allowing public universities to consider race in
admissions decisions. (In a 2007 decision, the
Roberts court leaned the other way, forbidding
public school systems from explicitly taking
race into account to achieve or maintain
integration.)
TAKE THIS TEST http://www.nytimes.com/interactive/2010/07/25/us/scotus-quiz.ht
The Roberts Court 2005-2006
Justices posed Monday at the Supreme Court building for the first
photograph of the Roberts court. From left, Ruth Bader Ginsburg,
David H. Souter, Antonin Scalia, John Paul Stevens, Chief Justice
John G. Roberts Jr., Sandra Day O'Connor, Anthony M. Kennedy,
Clarence Thomas and Stephen G. Breyer.
Mr Thomas would reverse not
only Roe v Wade but also any
ruling he deems ungrounded in
.
the constitution's text. That puts Precedent as a limit . . . ?
him in a minority of one on the
nine-strong bench; all the other
justices like to pay at least some
heed to precedent. But he does
not care. It is up to lawmakers to
make laws, he reckons. If the
voters don't want change,
politicians should persuade them,
not just keep their heads down
and hope that unelected judges
will make the hard choices for
them. His message to politicians
echoes the simple homilies his
grandfather taught him. Do your
job. Take responsibility. No The Economist
wonder he is so unpopular. But
the court would be poorer without
him
The Tenure of Office Act, March 3, 1867, enacted over the veto of President
Andrew Johnson, denied the President of the United States the power to remove
from office anyone who had been appointed by a past President without the
advice and consent of the United States Senate, unless the Senate approved the
removal during the next full session of Congress.
Constitutionality
In 1926, a similar law (though not dealing with Cabinet secretaries) was ruled
unconstitutional by the United States Supreme Court in the case of Myers v.
United States, which affirmed the ability of the President to remove a Postmaster
without Congressional approval. In reaching that decision, the Supreme Court
stated in its majority opinion (though in dicta), "that the Tenure of Office Act of
1867, insofar as it attempted to prevent the President from removing executive
officers who had been appointed by him by and with the advice and consent of
the Senate, was invalid
The Roberts court will face questions about bankruptcy, corporate compensation,
patents, antitrust issues and government oversight of the financial system
Front row:: Associate Justices Anthony M. Kennedy, John Paul
Stevens, Chief Justice John G. Roberts, Antonin G. Scalia, and
Clarence Thomas.
Back row: Associate Justices Samuel A. Alito, Ruth Bader
Ginsburg, Stephen G. Breyer, and Sonia Sotomayor
Justice Rehnquist, ill with cancer, administered the
oath to President Bush on Jan. 20, 2005, at Mr.
Bush's second inauguration.
Obama and CJ Roberts at the 2nd swearing in
http://www.youtube.com/watch?v=1gpeoZ
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Brendan Smialowski for The New York Times
People lining up Monday outside the Supreme Court, in Washington, to hear
arguments on the first day of the court’s term. October 2008
The 94 judicial districts are organized into 12 regional circuits, each of which has a
United States court of appeals. A court of appeals hears appeals from the district
courts located within its circuit, as well as appeals from decisions of federal
administrative agencies. In addition, the Court of Appeals for the Federal Circuit
has nationwide jurisdiction to hear appeals in specialized cases, such as those
involving patent laws and cases decided by the Court of International Trade and
the Court of Federal Claims.
Organization of the Courts
the “rule of 4”?
The Rule of Law
Criminal Civil
Government Private person/entity
Who Files
Punishment Money/injunction
Purpose
A crime has been committed by Duty/Breach of that duty
What must be proved the defendant
Guilty Beyond Reasonable Doubt Preponderance of Evidence > 50%
Proof required to win > 95%
Limits conduct of government Does not apply
Bill of Rights officials
Government Prosecutor/Private Own lawyer(s) for each side
Lawyers Attorney/Public Defender
Usually unanimous vote Usually non-unanimous vote
If trial by jury
Defendant’s presence Required with exceptions Not required
in court
Cannot be forced to testify Can be forced to testify
Testimony
Defendant can appeal Either side can appeal
Appeal
Access to and Decision
Making in the U.S. Supreme Court