The United States Supreme Court by bsx20897


									 The United States
  Supreme Court
          William Funk
Robert E. Jones Professor of Law
   Lewis & Clark Law School
      Federal and State Judicial
   Federal System          50 State Systems

   The Supreme Court of State Supreme
    the United States       Court
   12 Courts of Appeals State Court of
   Federal District Courts State Trial Courts
        Article III, Section 1
“The judicial power of the United States
  shall be vested in one Supreme Court, and
  in such inferior courts as the Congress
  from time to time ordain and establish.”
  Article III, Section 2, clause 1
“The judicial power shall extend to all cases . .
  . arising under this Constitution, the laws of
  the United States, and treaties made . . .
  under their authority; to all cases affecting
  ambassadors. . . ; to all cases of admiralty
  and maritime jurisdiction; to controversies to
  which the United States shall be a party; to
  controversies between two or more states;
  between citizens of different states; . . . and
  between a state, or citizens thereof, and
  foreign states, citizens or subjects.”
    Article III, Section 2, clause 2
   Supreme Court Original Jurisdiction:
       Cases affecting ambassadors
       Cases to which a state is a party
   Supreme Court Appellate Jurisdiction:
       Cases within the “judicial power of the United
        States” as established by Congress
The Current United States
     Supreme Court
The Future Supreme Court?
          Supreme Court Practice
   Three routes to Supreme Court:
       Original Jurisdiction
       Mandatory Appeal
       Petition for Certiorari
   Original Jurisdiction – disputes between
    states – one or two cases per year
   Mandatory Appeal – one or two cases per
   Petition for Certiorari – the remainder of all
                Certiorari Practice
   A petition is filed.
   The Court decides whether to hear case
       Rule of 4
   Parties file briefs
   Parties have oral argument – one half hour each
   The entire Court hears and later decides the case
       An opinion for the Court is assigned, drafted, and
        circulated among the justices.
       Concurring and dissenting opinions are written.
       The final opinions are then released to the public.
        Supreme Court Jurisdiction
   The “case” or “controversy” requirement
       Advisory Opinions not allowed
       Standing
          Injury
          Causation

          Remedy
   Army Surveillance
       5-4 No standing (1972)

   CIA Expenditures
       5-4 No standing (1974)

       Global Warming
       5-4 Standing (2007)
        Environmental Standing
   Aesthetic or Recreational Injury – “walk in
    the woods”
   “Reasonable fear” as injury
   Increased, but still small, statistical risk as
   Lack of agreement as to what is required
    to justify judicial action
   Lack of agreement stems from differences
    in the view of the role courts are to play in
    American government
   Those who see a broader role are called
   Those who see a narrower role are called
                    The Court Today
   Four reliable conservatives
       Chief Justice John Roberts
       Justice Antonin Scalia
       Justice Clarence Thomas
       Justice Samuel Alito
   Four reliable liberals
       Justice   John Paul Stevens
       Justice   David Souter
       Justice   Ruth Ginsburg
       Justice   Stephen Breyer
   One unreliable vote
       Justice Anthony Kennedy
           “Human Rights” v.
         “Constitutional Rights”
   In the United States we do not speak of
    “human rights” with respect to persons’
    rights in the United States.
   We speak of “statutory rights” or
    “constitutional rights,” not “human rights”
   “International human rights” is not a judicial
    concept in the US, and domestic courts
    generally do not recognize international law
    as applicable in domestic courts.
        Negative v. Positive Rights
   Positive rights are rights that require the
    government to do something
       For example, the Basic Law’s requirement for the
        state to protect human dignity, marriage, and the
   Negative rights are rights that prohibit the
    government from doing something
       For example, the First Amendment prohibits any law
        abridging the freedom of speech.
   The U.S. Constitution does not contain any
    “positive” rights; it only contains “negative” rights.
               Constitutional Rights
   Enumerated Rights
       Freedom of speech; Freedom of religion; Right to keep
        and bear arms; Freedom from unreasonable searches;
        Freedom from compelled self-incrimination; In a criminal
        tiral the right to a jury trial, the right to a public trial, and
        the right to have an attorney; Freedom from cruel and
        unusual punishment; Equal protection of the laws.
       Issues of interpretation: e.g.,
             Does the freedom from cruel and unusual punishment
             prohibit the death penalty?
            Does the freedom of speech protect “hate speech”?
       Originalism v. Purposive Interpretation
              Constitutional Rights
   Unenumerated Rights
   Pursuant to the “Due Process” clauses of the 5th
    and 14th Amendments
       No person is to be deprived of life, liberty, or property without
        due process of law
   Examples:
       Griswold v. Connecticut (1965) – the right to take contraceptives
       Roe v. Wade (1973) – a woman’s right to an abortion
       Troxel v. Granville (2000) – right for parents to raise children
       Lawrence v. Texas (2003) – right to engage in non-commercial
        intimate acts in private
       BUT, no right to have a doctor assist you in terminating your life
        even if you are terminally ill.
             Basis for finding an
             unenumerated right
   Implicit in the concept of ordered liberty
   Deeply rooted in the Nation's history and
   Fundamental right in contemporary
    civilized societies
       This basis is not accepted by “conservative”
        members of the Court, because it appears to
        empower judges to exercise their individual
   History
       Articles of Confederation (1781)
       Constitutional Convention (1787)
   Constitution takes certain powers from the
    states and places them in the federal
   States do not receive their powers from
    the Constitution
    Constitutional Text regarding
   Article I explicitly prohibits states from doing
    certain things.
       Because the new federal government was to do them
        – negotiate with foreign nations, create a monetary
        system or a bankruptcy system, or maintain an army
        or navy.
   Article VI contains the Supremacy Clause, stating
    that the Constitution and laws of the United States
    are the supreme law of the land notwithstanding
    the constitution and laws of the states.
   The 10th Amendment reserves to the states the
    powers not delegated to the United States.
    What powers does the federal
         government have?
   No explicit text for environmental regulation,
    worker and consumer health and safety
    regulation, criminalizing drug possession or
    terrorist activity.
   Reliance on the “Commerce Clause” and the
    “Necessary and Proper Clause”
       Authority “to regulate commerce with foreign nations,
        and among the several states, and with the Indian
       Authority “to make all laws . . . necessary and proper
        for carrying into execution the . . . powers vested in .
        . . the government of the United States.”
             Commerce Clause
   Since the 1930s, the Court has broadly
    read the Commerce Clause to justify all of
    these activities.
   In the 1990s, the conservatives on the
    Court found two cases beyond Congress’s
       US v. Lopez – Gun Free School Zones Act
       US v. Morrison – Violence Against Women Act
   Nevertheless, the broad reading remains.
              Regulating the States
   Even if Congress might be able to regulate
    a subject matter generally under the
    Commerce Clause,
       Can it regulate the states themselves? Yes.
            E.g., hours and wages laws of employees.
       Can it require the states to regulate the
        matter as agents of the federal government?
        No, but. . . .
            E.g., Clean Air Act
         Separation of Powers
   The individual and relative powers of the
    President, the Congress, and the Judiciary.
   Disputes often arise given the nature of
    the American system
   This is a particularly difficult area for the
    Court, because sometimes it has an
    interest involved and often its decision will
    have significant structural impacts on the

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