GVPT202 Midterm

"hard" money vs. "soft" money

*Hard money = money funneled directly to a campaign/candidate *Soft money = money that is funneled to a third party that works on behalf of the campaign (not working together, though)

Rule of Four:

if 4/9 justices says the court should take a case, they take it

Critiques of precedent

if precedent were a complete explanation, the law would never change. If precedent is binding, why do we see the SC overturn precedent? Could have precedence in conflict with one another. Why cite one case as precedent and not others?

Justices' "discuss list"

List that defines the cases they're going to discuss further at a conference of the 9 justices

Majority decision + dissent in Burwell v. Hobby Lobby (2014)

Majority: Hobby Lobby can deny its employees contraceptives coverage. It creates a substantial burden for the company, it violates their religious beliefs. If the fed gov wants to expand contraceptive coverage, they can do it through other means (ie pilot a new program) Dissent: Argues that any resulting infringement on religious liberties is merely incidental

Majority decision + dissent in Shelby County v. Holder

Majority: The pre-clearance requirement formula under section 4 is out of date and needs to be updated. Until Congress updates it, the Section 5 pre-clearance procedures are null and void. (Congress has still not updated it) Dissent: Voting Rights Act has done so much good, why would you nullify it when there are still ways in which it is harder for minorities to vote in many states? Even if it is not apparent or stark in registration numbers, there are still ways in which states are passing laws that have the effect of making it more difficult for certain people to vote

Supreme Court's standards for the extent to which they allow the federal government to pass laws that have an element of discrimination:

Strict scrutiny - must be narrowly tailored (when it is implemented must be the smallest possible side effects on people's rights) to advance a compelling government interest - Has been applied to issues with respect to race/ethnicity, and fundamental rights such as voting Intermediate scrutiny - Must be substantially related to an important government objective - Applied to gender/sex Rational basis test - Must have some rational purpose & serve a legitimate government objective - Applied to everything else (ex: economic & tax regulation, etc.)

Central question of Citizens United v. FEC

may the gov regulate corporate political speech through suppression and through disclaimer and disclosure requirements?

The conduct of elections (for both federal and state officials) has customarily and largely been left up to _________. As a result, ...

the individual states. Hence, there is significant variation across states on dimensions like registration requirements, voter ID regulations, absentee ballot rules, early voting, etc.

Challenges to the early institution of the Supreme Court

- Court didn't have a permanent home - No clear description on the scope of the court - Wasn't viewed as a good job at the beginning (circuit riding)

Federal Election Campaign Act (1971)

- First real significant federal action on campaign finance - Established the Federal Election Commission - supervises and prosecutes people who are allegedly financing campaign finance law

Historical background + significance of 14th Amendment

- Intended to protect former slaves - Codified that citizenship rights are not under states' control (defined national citizenship

Barriers to reviewing a case for the SC

- Jurisdiction - Standing - Ripeness (Can't preemptively challenge a law - there has to be a standing suit) - Mootness - Political Question Doctrine (Court seeks to avoid inherently political questions)

What are the two sides of the Commerce Clause?

- Majorly broad constitutional grant of power to Congress, along with the taxing power - Places potential limitation on explicit federal powers

Notable Supreme Court cases that were vehicles for selective incorporation through the Due Process Clause:

- Mapp v. Ohio (1961) - Gideon v. Wainwright (1963) - Lochner v. New York (1905)

Limitations on 14th Amendment

- No real economic or land reform - didn't take long for the racist southern Democrats to regain control of their states and Congress

Bipartisan Campaign Reform Act in 2002

- Prohibited use of "soft money" by national political parties - Prohibited labor unions & corporations from using general funds to engage in "electioneering" communication, direct advocacy on behalf of candidates and campaigns, 60 days before general election or 30 days before primary // *KEY PART* - Extended public disclosure requirements

What shapes the president's selections?

- Qualifications and experience - Partisan and electoral concerns - Ideological compatibility - Institutional constraints (does the president's party control the senate?) Representation concerns (e.g. race, gender, etc.)

Buckley v. Valeo (1976)

- Said that limits on expenditures are unconstitutional but direct contributions are constitutional - Disclosure requirements are constitutional **Hole that still existed: soft money. Funneling money to a 3rd party and have them do the advocacy on behalf of the campaign

External constraints on justices' decision-making

- To some extent, what justices do is shaped by the political environment in which they are operating (members of congress, the public) - Justices also care about impact and policy impact, so they want to implement their decisions, so they don't want to completely go against the people who would implement it - SC may want to avoid taking cases that would antagonize congress and/or the mass public

Why might policy predispositions matter?

1. Lack of electoral accountability // once on the bench, you serve for life 2. Limited political accountability // they can't reasonably be removed by making a decision that you don't like 3. Don't have promotional aspirations // there is nowhere to go beyond where they are, so they don't have to please anyone to be promoted or anything 4. Courts gets to pick and choose which cases they hear 5. Court of last resort // they don't have to worry about other courts reviewing their decisions

Limitations on Judicial Power

1. Limited to reactive behavior // can't review anything without it coming before the court 2. Reliance on others to enforce decisions (and comply) 3. Need to preserve legitimacy

Legal theories for interpreting the law

1. Plain meaning // literal meaning of the text - what does it say? 2. Original Intent // thinking about the original understanding of the clause or statute by those who crafted it 3. Precedent if you are ruling based on precedent, you want to make sure your ruling based on today's case is consistent with a prior ruling on a previous case

4 clauses of the 14th Amendment

1. Citizenship Clause 2. Privileges and Immunities Clause 3. Equal Protection Clause 4. Due Process Clause

Stages of Senate confirmation process

1. Committee stage (actions, hearings) 2. Full chamber vote

Majority decision on National Federation of Independent Business v. Sebelius (2012)

1. Court determined that the individual mandate was not permissible under the commerce clause, but it was permissible under Congress's taxation power 2. No, Congress did not have the authority to force states to expand Medicaid

General principles to guide the SC as to whether they should review a case:

1. Dealing with legal conflict or intra-circuit conflict or legally salient cases are most important 2. Strategic political (or ideological) considerations // Justices also sometimes exercise their own ideological or political values 3. Exercise of Judicial review in lower courts // Sometimes lower courts justify their own opinions while expressing that some act of Congress should be struck down

Central questions (& answers) of Marbury v. Madison

1. Does Marbury have a right to the commission? Court says yes. Reasoning: the delivery of the commission is just a logistical/procedural step. Once Marbury was nominated and the commission was signed, that was sufficient to cement his position 2. Is there any available remedy? Is a court of law an available remedy? Or is there an available remedy to fix this? Yes. Marbury has suffered an injury - he was appointed to this decision, his commission was signed, so in the court's eyes, it's his job. So if he is being denied his job, he has suffered an injury and he can sue in court 3. If there is an available remedy for court, is it a writ of mandamus? Court says no, because they ruled that the Judiciary Act of 1789 which allowed them to hear the case was unconstitutional - expanded their original jurisdiction The Court is saying that if Marbury wanted a writ of mandamus, it has to be brought to the SC under appellate jurisdiction, and the attempts to connect the writ to its original jurisdiction is unconstitutional

Ways to have vacancies on the Court without retirement or death:

1. Increase court size - would take a law from Congress 2. Sack incumbents (impeachment) 3. Vote out incumbents (not at the federal level) 4. Legislate incumbents - Mandatory retirement & term limits? Would require a constitutional amendment

The Process of Selecting Supreme Court Justices

1. Informal vetting 2. Vacancy occurs 3. Formal vetting 4. Nominee announced 5. Senate Judiciary Committee Hearings & individual meetings with Senators 6. Senate vote

Sources of Supreme Court power

1. Judicial Review // power to review the decisions of others' actions to see if they are consistent with the constitution 2. Perceived legitimacy // Courts enjoy more public approval than Congress/President because people view Court decisions as more principled" and less strategic 3. Scope of Government // There has been a large expansion in the size of the federal government - more laws being passed. Creates more avenues for judicial review to come into play

Judge's Personal Policy Predispositions

1. Policy concerns (maybe justices make certain decisions because that is what they would prefer to see happen) 2. "Attitudalism" (Could boil down to political differences and political preferences - could manifest itself as policy predisposition that could shape their thinking in a case)

Pre Shelby County v. Holder, when did the VRA dictate that the federal government could take action against discriminatory voting procedures?

1. Section 2 lawsuits - fed gov could sue them in federal court, and challenge those laws on the basis that they violate the 14th and 15th Amendment. VRA gave them this authority 2. Pre-clearance procedure - Section 4 and 5 of VRA - forcing some states to get prior approval for changes to their election rules from either DOJ or special federal district court

Main questions of National Federation of Independent Business v. Sebelius (2012)

1. Whether the individual mandate of the ACA was constitutionally permissible under the commerce clause or some other clause 2. Whether the federal government had the authority to force states to expand Medicaid

What the Court can do with a case:

1. hold a case to the next term - don't want to reject a petition but don't think it's the right time to decide on it 2. issue a CVSG (Call for the Views of the Solicitor General) - cases can really affect the federal gov, so they want to get the federal gov's opinion; they'll issue a CVSG which orders the federal gov to submit a brief with their opinion on what they should do 3. issue a Grant/Vacate/Remand - summary decision where they grant it on the spot, vacate (void) the lower court decision, and remand it back to the lower court with some instructions 4. issue a dissent to make known that they think it's an important case to take

Critiques of plain meaning

1. the text is too ambiguous to only use the plain meaning 2. Could find conflicting things (i.e. 10th Amendment vs General Welfare Clause)

History of United States v. Wong Kim Ark (1898)

2 legal residents who were Chinese citizens living in the US, had a child, and at some point the Chinese parents went back to China. Child grows up and goes to visit his parents and comes back, and is denied re-entry into the US. Justification is that he is not a citizen of the US because his parents are not US citizens. - Supreme Court declared that because he was born on US soil, irrespective of where his parents were born, he was a citizen of the US

Cert pool

A bunch of justices join the pool and they divide the petitions among them equally and then share the information among them across justices

Constitution law

Any case or decision that in some way involves interpreting the US constitution as part of that decision

Dissenting opinion in Citizens United v. FEC

Attacked majority's perspective that we can extend rights to corporations and labor unions as if they were people

Background, majority opinion, dissenting opinion on Brnovich v. DNC (2021)

Background: Arizona had passed 2 different laws banning ballot harvesting (collecting ballots from other people and coming and turning them in all at once) and out-of-precinct voting (if you turn in ballot in the wrong precinct your vote doesn't get counted). - DNC had said that these laws were discriminatory Majority: According to guideposts (size of burden on voter, size of racial disparity, different opportunities to vote, state has an interest that we need to consider, figure out what it meant at the time it was written), law is not discriminatory in purpose or practice Dissent: discriminatory in practice, not everyone has equal access to voting in practice

Background + main question in Burwell v. Hobby Lobby (2014)

Background: The federal government passed the ACA, which mandated a certain level of coverage, including contraceptives - Made exemptions for religious employers and non-profits, but didn't extend that to for-profit institutions Main question: Religious liberties vs. fed gov's intention to expand contraceptive coverage

Bork Saga

Bork was a pretty well-qualified nominee. Had a bit of a combative personality - talked a lot about his views on the issue, which then gave fuel to people in the Senate. Had a long paper trail, viewed as pretty conservative, so Democrats were able to capitalize on that to block his nomination. Bork was also involved in the Watergate scandal, so there was a big controversy. Nominated by Ronald Reagan but Democrats controlled the Senate at the time - voted down 58 to 42 Following the Bork nomination, legal qualifications are no longer a way to get past a Senate of the opposite party

Main issue of Shelby County v. Holder

Challenge to the pre-clearance procedure, saying that this law is treating different states differently in a way that was no longer justified by the evidence

Citizenship Clause

Chief clause that declared unified national citizenship - anyone born or naturalized within the US is a citizen But: the case never address the child of illegal immigrants

Who might the president listen to when deciding who to nominate for justice?

Congress - Especially leadership - Especially the case when the president is weak (low approval ratings, etc) Department of Justice vs White House advisors - Presidents tend to seek wider advice from DOJ as opposed to just seeking narrow advice from advisors

Legal impacts of Marbury v. Madison

Constitutional supremacy - Constitution is the law of the land Judicial supremacy in interpreting the constitution - idea that elected officials have to respect the meaning of the Constitution and the US Supreme Court is the ultimate arbiter for defining what the Constitution means

Statutory law

Doesn't involve the constitution, but involves interpreting a law passed by congress

Critiques of original intent

Even if you assume that you can ascertain what the original understanding was, maybe you don't want to do that. Maybe times have changed, and someone's judgement now requires a new interpretation as opposed to the understanding of people hundreds of years ago

Article III Section I of US Constitution

Foundation of the US Supreme Court system - Judges hold their offices during "good behavior" (endowed them with life tenure) - Congress can't reduce their salary while they're in office *No formal requirements for SC justices - left up to Congress

Roberts's majority opinion in National Federation of Independent Business v. Sebelius (2012)

He distinguished between compelling people to enter a market vs people who were already in it - If you're forcing ppl to buy health insurance, you are compelling people to enter a market & conduct an economic transaction that they don't want to do - Different from regulating a transaction that's already happening

History, main questions, and decision of California v. Texas (2021)

History: in 2017, Republican-controlled Congress zeroed out the tax penalty on ACA's individual mandate (so now $0). Texas argued that now that the "tax" is $0, it is no longer a tax and the individual mandate should therefore be considered unconstitutional. Main questions: Is the ACA unconstitutional following Congress eliminating the penalty for failing to have health insurance? Is the law "severable"? Decision: Court didn't address primary issue; ruled plaintiffs lacked standing

Background of Citizens United v. Federal Election Commission

Jan 2008 - Citizens United was a non-profit organization that released "Hillary: The Movie" which was made to criticize Hillary Clinton when she was running for president before the primary - Citizens United challenged BCRA because they argued that BCRA prohibition against corporations and labor unions was unconstitutional

Join-3 Vote

I'll join 3 others to vote to take a case - I can be convinced to join three colleagues

Due Process Clause

Important clause for selective incorporation (having the Bill of Rights also apply to the states, not just the federal government)

Supreme Court jurisdiction

Original (i.e. boundary disputes between states) Appellate - Mandatory appeals (have to hear whether they like it or not but almost non-existent now, Congress has decreased this) - Discretionary petitions (writ of certiorari) - hear what they want to hear, most common

Decision in King v. Burwell (2015)

Permissible to do that. The intent was that tax credits would be available to people under a certain level of income, and it was not intended to be a function of whether it was a state or federal health care exchange. The fed gov didn't anticipate that it would need to specify that state or federal, so it wasn't written into the statute. Wasn't in the plain text, but it was clearly the intent. // looked at the spirit of the law, not the letter

Background & main question of King v. Burwell (2015)

Plan of ACA: to provide some federally sponsored health care, state-by-state exchanges where people could enroll in health care. Some states opted not to expand medicaid, and opted not to get involved in these exchanges. Problem: key part of the ACA is that it gives health care subsidies (tax credit) to certain citizens based on income. Because the fed gov envisioned that this would be implemented by the state, the language only talks about a state healthcare exchange. So when certain states opted out, the Obama admin decided to expand these tax credits to federal health care exchanges. Main question: Did the IRS permissibly extend the tax credits to federal exchanges?

Main question of regulating campaign finance

Prevention of potential corruption (or the appearance of corruption) vs First Amendment right of freedom of expression

3 main components to the memos from the clerks

Procedural history - goes into the background of the case Summary of Attorney's Arguments - laying the groundwork Clerk Discussion & Recommendation - can be long or short, depending on the weightiness or importance of the case

Equal Protection Clause

Prohibits states from denying equal protection under the law, and has been used to combat discrimination (has enforcement power) - Notable SC cases: Brown v. Board of Education (1954) Loving v. Virginia (1967) Obergefell v. Hodges (2015)

Privileges and Immunities Clause

Protection for our fundamental rights of citizenship (i.e. voting, owning land)

Majority decision of Citizens United v. FEC

SC said that the electioneering restrictions on using soft money under BCRA are unconstitutional - Now, corporations and labor unions can funnel money to PACs and third party groups to advocate on behalf of a campaign as long as they're not directly coordinating with the campaign - Majority of SC said that BCRA restrictions on soft money excessively infringe on free speech and therefore violate first amendment and therefore cannot stand (Extended rights to corporations and labor unions as if they were individuals // extremely controversial to this day)

Sections 2, 4, and 5 of Voting Rights Act

Section 2: gives Congress/the federal government the power to challenge actions by states in federal court Section 4: defines the states and counties in the US that have a history of disenfranchising groups Section 5: Sets up "pre-clearance" // Congress enacted a procedure which if any state or group of states who had a history of disenfranchising voters in the past (ie literacy tests) in practices, had to get pre-clearance for any changes to their voting laws before they could be enacted.

Supreme Court precedent for Privileges and Immunities Clause

Slaughterhouse Cases (1873): City of New Orleans took actions to deal with some sanitation issues in the butcher industry at the time, producing a lot of runoff. They made it so that only a few butcher shops were the butcher shops of the town, and any butcher not included in that would not be allowed to conduct business anymore. People now out of business challenged this on the basis that it infringed on their rights based on the 14th amendment, including the privileges and immunities clause. They lost because the SC at the time determined that it didn't involve the equal protections or due process clause, and that it only included the privileges and immunities clause. Supreme Court took a very narrow reading of the clause, saying that it only protects you against infringement of basic citizen rights, and the ability to run a business is not one of them

Background of Marbury v. Madison

The Adams administration sought to ensure that the federalist would have more influence going into the future, so they tried to appoint like-minded people to the court as they were leaving office. Federalist Congress passes a series of laws that essentially gives them the power to create new appointed positions to serve in the gov. Adams makes over 200 nominations to various positions during February 1801, including new judgeships under The Act Concerning the District of Columbia March 1802 - Adams submits 42 nominations for justices of the peace, leads to a formal signed commission, which is delivered to the people who are nominated Adams runs out of time and not all commissions are delivered before Jefferson's inauguration When Jefferson takes office, he instructs his Secretary of State (James Madison) to halt the delivery of the commissions. William Marbury files suit against Madison, asks the court to file a writ of mandamus (legal term for a court order/mandate) - asking the court to tell the Jefferson administration to deliver his commission

What is the main issue of the Commerce Clause?

The authors never actually defined "commerce" - ambiguity has led to many challenges in court - challenge between the Commerce Clause (federal gov's rights) vs 10th Amendment (states' rights)

Dissent in King v. Burwell (2015)

The law doesn't refer to federal health care exchanges, so it shouldn't be permissible. Doesn't matter what the spirit is. If Congress wants to expand the health care exchanges, they should say it.

Dissent in National Federation of Independent Business v. Sebelius (2012)

This is a massive market that crosses state boundaries, and everyone needs medical care at some point for something. Under our laws, you can't be denied health care coverage when you need it. You have some people who are free-riding who just show up when they need health care coverage

What is the reason why we have voting rights legislation?

Trying to combat the historical practice of disenfranchising voters, largely former slaves and then black/African American voters

Prevailing Supreme Court precedent for the Citizenship Clause

United States v. Wong Kim Ark (1898)