American Politics: Courts January 7, 2008

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The Nomination Process Iowa Caucus (3 Jan) Iowa Caucus (3 Jan) Barack Obama wins the Democratic caucus; Mike Huckabee wins the Republican caucus Barack Obama wins the Democratic caucus; Mike Huckabee wins the Republican caucus New Hampshire Primary (tomorrow, 8 Jan) New Hampshire Primary (tomorrow, 8 Jan) Obama and McCain lead; Obama has a 13% lead over Clinton and McCain leads by 7% over Romney (USA Today/Gallup) Obama and McCain lead; Obama has a 13% lead over Clinton and McCain leads by 7% over Romney (USA Today/Gallup)USA Today/GallupUSA Today/Gallup

The Courts—The Third Branch Powerful, but not Democratic Powerful, but not Democratic Supreme Court has nine unelected judges appointed for life and are independent from one another Supreme Court has nine unelected judges appointed for life and are independent from one another Responsive? Responsive? Accountable? Accountable?

Power of the Supreme Court Originally intended to interpret the constitution Originally intended to interpret the constitution Principal of Judicial Review Principal of Judicial Review Allows the SC to declare the acts of president and Congress unconstitutional Allows the SC to declare the acts of president and Congress unconstitutional Role of the Court in Civil Rights and Bush v. Gore Role of the Court in Civil Rights and Bush v. Gore

Limitations on power Courts are reactive (can only hear cases brought before them) Courts are reactive (can only hear cases brought before them) Lack of enforcement Lack of enforcement Limited by the ability of Congress and the president to write new laws (or constitutional amendments) Limited by the ability of Congress and the president to write new laws (or constitutional amendments) Public opinion Public opinion

The Structure of the Federal Judiciary Only the Supreme Court is explicitly mentioned in the Constitution (Article III). Only the Supreme Court is explicitly mentioned in the Constitution (Article III). Nature of the judiciary beyond the Supreme Court deferred to Congress. Nature of the judiciary beyond the Supreme Court deferred to Congress. Judiciary Act of created the federal judiciary. Judiciary Act of created the federal judiciary. The federal judiciary is organized as a three- layered pyramid. The federal judiciary is organized as a three- layered pyramid.

The Supreme Court The Supreme Court is the court of final appeal. The Supreme Court is the court of final appeal. Under its appellate jurisdiction, the Court may hear cases appealed from the lower courts or directly from the highest state courts when an important constitutional question is in dispute. Under its appellate jurisdiction, the Court may hear cases appealed from the lower courts or directly from the highest state courts when an important constitutional question is in dispute. Decision on which cases to accept is based on the Rule of Four. Decision on which cases to accept is based on the Rule of Four.

Supreme Court’s Case Load In a few rare situations the SC has original jurisdiction (meaning it is the first to hear the case). Example: disputes between states In a few rare situations the SC has original jurisdiction (meaning it is the first to hear the case). Example: disputes between states Another unusual route is certification, when an appeals court requests a review to settle a question of law. Another unusual route is certification, when an appeals court requests a review to settle a question of law. The majority of cases are appeals (via the Court of Appeals). The majority of cases are appeals (via the Court of Appeals).

Deciding Cases English Common law English Common law Principal of stare decisis (precedent) Principal of stare decisis (precedent) Judicial restraint vs. judicial activism Judicial restraint vs. judicial activism

Reasoning Majority opinions Majority opinions The Court majority sends a signal to lower courts, lawyers, potential litigants and others how they are likely to treat similar cases in the future. The Court majority sends a signal to lower courts, lawyers, potential litigants and others how they are likely to treat similar cases in the future. Concurring opinions Concurring opinions Agrees with decision but not reasoning Agrees with decision but not reasoning Dissenting opinions Dissenting opinions Explains why they disagreed with the ruling. Dissents can be important as they lay the groundwork for future decisions. Explains why they disagreed with the ruling. Dissents can be important as they lay the groundwork for future decisions.

Checks on the Judiciary Executive Checks Executive Checks Appointments Appointments Legislative Checks Legislative Checks Appropriation of funds Appropriation of funds Constitutional amendments Constitutional amendments Amending laws to overturn court’s rulings Amending laws to overturn court’s rulings Public Opinion Public Opinion Influence judicial opinions Influence judicial opinions enforcement enforcement The Court The Court stare decisis stare decisis Judicial restraint Judicial restraint

Civil Liberties We classify as civil liberties the Constitution’s protections from government power. We classify as civil liberties the Constitution’s protections from government power. Freedom of speech, religion and the right to privacy are examples. Freedom of speech, religion and the right to privacy are examples. Typically violations of these liberties occur when some government agency, at any level, oversteps its authority. Typically violations of these liberties occur when some government agency, at any level, oversteps its authority.

Who protects civil liberties? Does the constitution guarantee certain absolute civil liberties? Does the constitution guarantee certain absolute civil liberties? Truth is that our interpretations of these freedoms constantly change. Truth is that our interpretations of these freedoms constantly change. Question of how to balance individual liberties with societal rights Question of how to balance individual liberties with societal rights

Cases Involving Civil Liberties Free Speech, Schenck v. United States (1919) Free Speech, Schenck v. United States (1919) clear and present danger clear and present danger Freedom of Press, New York Times v. Sullivan (1964) Freedom of Press, New York Times v. Sullivan (1964) Libel violates 1 st Amendment Libel violates 1 st Amendment Obscenity, Roth v. United States (1957) Obscenity, Roth v. United States (1957) Court attempts to define obscenity Court attempts to define obscenity Establishment Clause, Lemon v. Kurtzman (1971) Establishment Clause, Lemon v. Kurtzman (1971) Three part test for judging constitutionality of division between church and state Three part test for judging constitutionality of division between church and state Gun Control, United States v. Miller (1939) Gun Control, United States v. Miller (1939) 2 nd Amendment does not provide for absolute guarantee 2 nd Amendment does not provide for absolute guarantee Right to Privacy, Roe v. Wade (1973) Right to Privacy, Roe v. Wade (1973) Landmark case on abortion Landmark case on abortion

The Patriot Act – A Threat to Civil Liberties? Change in protections from unreasonable search and seizure Change in protections from unreasonable search and seizure Detention of non-citizens, immigrants Detention of non-citizens, immigrants Racial profiling Racial profiling

Bush v. Gore (2000) Supreme Court decides the 2000 Presidential Election Supreme Court decides the 2000 Presidential Election By a vote of 7-2, the Court held that the Florida Supreme Court's scheme for recounting ballots was unconstitutional, and by a vote of 5-4, the Court held that no alternative scheme could be established within the time limits established by Florida Legislature By a vote of 7-2, the Court held that the Florida Supreme Court's scheme for recounting ballots was unconstitutional, and by a vote of 5-4, the Court held that no alternative scheme could be established within the time limits established by Florida Legislature Equal Protection of the laws (14 th Amendment): Equal Protection of the laws (14 th Amendment): The state-wide standard (that a "legal vote" is "one in which there is a 'clear indication of the intent of the voter.'"could not guarantee that each county would count the votes the same way. The state-wide standard (that a "legal vote" is "one in which there is a 'clear indication of the intent of the voter.'"could not guarantee that each county would count the votes the same way.