AMSCO The Judicial Branch Chapter 6

Grovey v. Townsend

(1935) a Supreme Court case that upheld the white only democratic primary in Texas.

Roe v. Wade, 1973

(Burger, 7-2 decision) Certain state criminal abortion laws violate the Due Process clause of the 14th Amendment, which protects against state action the (implied) right to privacy in the Bill of Rights (9th amendment). Abortion cannot be banned in the 1st trimester (1st 3 months), states can regulate the 2nd trimester, 3rd trimester - abortion is illegal except to save the life of the mother.

The Rehnquist Court

1980s to 2000s: A more conservative court, but also sharply divided 5-4. Begins to allow restrictions to abortions and more skeptical of government regulations, affirmative action, and other federal powers.

"Four Horsemen"

4 conservative justices on the Supreme Court during the early New Deal that overturned several New Deal programs.

Miranda

A Supreme Court case that led to rules that police officers must follow in warning arrested persons of their rights

Per curium opinion

A brief unsigned statement of a Supreme Court decision without a full explanation of the ruling.

Injunction

A court order that forces or limits the performance of some act by a private individual or by a public official.

Binding precedent

A decision of a higher court that must be followed by lower courts in the same hierarchy, even if the judges in the later case disagree with the previous ruling by the higher court.

Persuasive precedent

A decision of another court which is influential but not binding. Judges might consider past decisions made in other districts or other circuits as the basis for their decision, but these are not binding on the judges in the current case.

Petition for certiorari

A document which a losing party in a lower court files with the Supreme Court asking the Supreme Court to review the decision of a lower court.

Standing

A legal rule stating who is authorized to start a lawsuit. Defines the types of parties that can go to various courts

Nuclear option

A maneuver exercised by the presiding officer in the Senate that eliminates the possibility of filibusters by subjecting votes on certain matters to a simple majority vote. This threat was first used by Republicans during the Bush II administration, and then after Republicans blocked Obama nominees even longer it was carried out for federal judges except for to the Supreme Court. (The Republicans in 2017 put Gorsuch on the Court by carrying this out for Supreme Court appointments as well.

Majority opinion

A statement that presents the views of the majority of supreme court justices regarding a case

Dissenting opinion

A statement written by a justice who disagrees with the majority opinion, presenting his or her opinion

Certiorari

A writ issuing from a superior court calling up the record of a proceeding in an inferior court for review. Latin for "to make more certain."

Plea bargain

Allows the government and the defendant to agree to a lesser sentence in exchange for a guilty plea. Saves courts time and taxpayers money, and guarantees a conviction.

"Court-stripping"

Also called jurisdiction stripping. Congress has the power to take away jurisdiction on certain issues from federal courts. This might prevent the courts from hearing cases on abortion or flag burning, for example. If Congress was to do this with controversial/important issues, it would be very controversial.

Strict constructionist

An approach to constitutional interpretation that emphasizes the Framers' original intentions, or the meaning of the words as written in the Constitution.

Precedent

An earlier ruling by a court that firmly establishes a legal principle, and are usually followed later as other courts consider the same legal logic in similar cases.

Brown v. Board of Education, 1954

An extremely important decision in which the Court decided that "separate but equal" from Plessy v. Ferguson should not apply to students in public schools. Led to eventual further desegregation of American public life.

Concurring opinion

An opinion that agrees with the majority in a Supreme Court ruling but differs on the reasoning.

Solicitor general

Appointed by the President and confirmed by the Senate. Determines which cases to appeal to the Supreme Court and represents the US before the Supreme Court.

Defining jurisdiction of the federal courts

Article III lays out some very broad jurisdictions for federal courts and the Supreme Court, and then allows Congress to make other "Regulations" regarding the jurisdiction of federal courts. This power allows Congress to determine which types of cases are heard by which federal courts, and which are heard by state courts.

Rule of four

At least four justices of the Supreme Court must vote to consider a case before it can be heard.

Litmus test

Attempt to determine a judicial nominee's ideology on the spectrum by asking pointed questions (in the Senate) on controversial issues (abortion, guns, gay rights) or looking at the nominee's prior rulings on such subjects. Criticism of this "test" is that a judge's complex judicial philosophy should not be determined as easily/quickly as a black and white scientific test.

Supreme Court's original jurisdiction

Cases affecting ambassadors and public ministers, and those in which a state is a party.

Diversity citizenship

Cases which involve citizens of different states and in which the amount of money in dispute exceeds $75,000.

Chisolm v. Georgia, 1794

Citizens of one state can sue another state, overturned by the 11th amendment.

Torts

Civil (non-criminal) wrongs committed against a person for which the harmed party has the right to sue in court.

Antifederalist Brutus's arguments regarding the Supreme Court

Claimed that judges are too separated from the people and the Congress to be held accountable for their decisions and be legitimate arbiters (fair decision-makers) of democratic law. No power would be above them in deciding what the Constitution means, and they would not be able to be removed for making poor decisions (only for actual misbehavior through impeachment).

Congressional oversight (of the courts)

Congress has substantial authority over the operation of the federal court system. Congress sets and pays judges' salaries. Congress budgets for construction of court houses. Laws passed by Congress govern the judiciary. Congress can create new seats in the 94 district courts and on the 13 appeals courts.

Civil cases

Court cases that involve a private dispute arising from such matters as accidents and contractual obligations. The standard of proof is "preponderance of the evidence" instead of "beyond a reasonable doubt," which is the standard for criminal cases. If the 2 parties are from different states, the dispute must involve over $75,000 (according to a law passed by Congress).

Special legislative courts

Courts created by Congress to hear matters of expert concern. Created by the Congress instead of the Constitution. Presidents appoint judges and they are confirmed by the Senate, and they serve (typically) 15-year terms. Deal with specific issues, and so judges with expertise in those areas are desired.

Appellate courts

Courts that do not try criminal cases but hear appeals of decisions of lower courts. Especially influential because they don't determine facts, instead they shape the law. Do not hear from witnesses or have juries, because the panel of judges determine questions of law, not of fact. Do not decide guilt or innocence of criminal defendants, but may order a new trial.

US district courts

Courts within the lowest tier of the three-tiered federal court system; courts where litigation begins. There are 94 in the US, at least one in each state. Serve as trial courts with original jurisdiction. Try federal crimes that fall under the enumerated powers of Article I, Section 8.

Chief Justice John Roberts

Current Chief Justice (appointed by Bush 2 in 2005); moved court in conservative direction; known for pro-corporation cases. Claimed that judges were neutral "umpires" calling "balls and strikes" during his confirmation.

Dred Scott v. Sandford, 1857

Dred Scott was a slave who was brought into both a free state and free territory, and argued that he should be freed because of this fact. The Court ruled that Scott was not a citizen and could not sue in federal court. In fact, no blacks, free or slave, could be citizens. The Court said that the slave owner's right to due process and protection of property under the 5th Amendment were violated if he had his slaves confiscated in a free territory, so all federal territories were open to slavery after this case. This decision was one of, if not the worst decision in US Court history. It made abolitionists and other northerners question the legitimacy of the Court.

John Marshall

Federalist chief justice appointed by John Adams. Served on the Court from 1801-1835. Handed down rulings that strengthened national power (at the expense of the states). His rulings also established the principle of judicial review and made the Court a fully co-equal branch of government with the Congress and president.

Anita Hill

Former associate of Clarence Thomas, who accused him of sexual harassment in Senate Judiciary Committee hearings in 1991.

"Pack the Court"

Franklin Roosevelt's proposal in 1937 to add 1 justice for every one over the age of 70, which wold have allowed him to appoint 6 new justices (for a total of 15 on the Court). The purpose of the proposal was to dilute the power of the conservatives on the Court who kept overruling New Deal laws. Conservatives and liberals saw this as an attack on the independence of the Court, and the plan was not passed.

Circuit Court of Appeals for the District of Columbia (DC Circuit)

Handles appeals from those fined or punished by executive branch regulatory agencies. The 2nd most important court in the nation, and is a feeder for US Supreme Court justices.

Justice Department (and the courts)

Investigates federal crimes (FBI, DEA, etc.) and US attorneys prosecute federal crimes. When the US government is sued US attorneys defend the US.

Judicial activism

Judges act to create the law. Occurs when judges strike down laws or reverse public policy. Can be liberal or conservative, depending on the nature of the law that is struck down.

Implementation of court rulings (by the executive branch)

Judges have no power to implement (carry out) their decisions - they rely on the executive branch to do this. Sometimes the executive branch may carry out a court ruling contrary to the wishes of the court, or even block implementation of the court ruling. The court can issue orders, but there is little to no enforcement power in the courts.

Impeachment (of federal judges)

Judges who commit treason, bribery, or other high crimes and misdemeanors go through the same process as the president (charged by a majority of the House, convicted by 2/3 of the Senate). Impeachment is not done for controversial or "bad" rulings, only for actual misconduct.

Class action suit

Lawsuit brought by an individual or group of people on behalf of all those similarly situated.

Stare decisis

Let the decision stand; decisions are based on precedents from previous cases.

Treason

Levying war or giving aid and comfort to the enemy. The only crime mentioned or defined in the Constitution. Included in the Constitution to prevent the government from easily prosecuting people for the crime to silence dissent.

Amicus curiae brief

Literally, a "friend of the court" brief, filed by an individual or organization to present arguments in addition to those presented by the immediate parties to a case.

Diversity (on the Court)

Mostly the Court has been a white, Protestant men's institution. Thurgood Marshall (LBJ) and Clarence Thomas (Bush 1) are the only 2 African Americans that have served on the Court. Still, all have either gone to Harvard or Yale law schools.

The Warren Court

Named for Chief Justice Earl Warren, appointed by Eisenhower in 1953. The expectation was that he would be conservative (he was Republican), but his time as chief justice saw the Court hand down many rulings that protected individual rights and upheld regulation of the economy by the government.

Clarence Thomas

Nominated by George Bush I in 1991. He was extremely conservative, and also African American. He was seen as inexperienced by (Democratic) critics. During the hearings Anita Hill came forward to accuse Thomas of sexual harassment. Thomas denied these charges and called them a "high tech lynching." The Senate barely confirmed him.

Robert Bork

Nominated by Reagan in 1987. He was the leading conservative intellectual in the legal community. He advocated for "original intent". His views on civil rights, abortion, and privacy were controversial, and after very bitter hearings he was not confirmed, 42-58. "Getting borked" means destroying a nominee through concerted attacks on his character, background, and philosophy.

Reform of judicial confirmation

One proposal is to limit the number of participants at the hearings, prevent nominees from testifying, prevent senators from offering hypotheticals as litmus tests, and base confirmation solely on nominee's written records and testimony from legal experts.

Amendments (and court decisions)

One way that an unpopular/wrong Supreme Court decision is through passing an _____ to the Constitution. Since the courts are only interpreting the Constitution, changing the Constitution would force the Court to change its ruling (for example an amendment banning abortion). It is very difficult to pass an amendment though (2/3 of Congress, 3/4 of the states), so this is an unlikely way to change a court ruling.

Federal crimes

Ones that fall under the enumerated powers of Article I, Section 8. Most violent crimes (most crimes overall) are tried in state courts. Defendants must be found guilty "beyond a reasonable doubt"

Writ of certiorari

Order by the Supreme Court directing a lower court to send up the records of a case for review.

Smith v. Allwright, 1944

Outlawed White primaries held by the Democratic Party, in violation of the 15th Amendment. Example of the Court ignoring precedent to reach a more just decision.

Laissez-faire

Policy that government should interfere as little as possible in the nation's economy. Supported by businesses in the late 1800s. Led to long hours for workers, child labor, and made regulation of the economy by the government nearly impossible.

Merrick Garland

President Obama has nominated this federal Judge to replace Antonin Scalia on the Supreme Court, setting up a showdown with Senate Republicans, who have vowed to block any nomination Obama made. Garland was "well qualified" by the ABA. But Majority leader Mitch McConnell refused to hold hearings for Garland, allowing Trump to appoint Gorsuch to Scalia's seat on the Court.

Presidential appointment (to the courts)

Presidents nominate people to serve as federal judges. Presidents make appointments to the courts carefully because judges serve for life. Presidents try to shape the federal judiciary through their appointments. Presidents try to choose district and appeals court judges from areas in which they'll serve.

Engel v. Vitale, 1962

Prohibited state-sponsored recitation of prayer in public schools by virtue of 1st Amendment's establishment clause and the 14th Amendment's due process clause; Warren Court's judicial activism.

11th amendment

Prohibits citizens of one state or foreign country from suing another state. Overturned Chisolm v. Georgia, 1794.

Jury trial

Protection outlined in Article III to guarantee a criminal defendant's right, giving citizens a check on accusations made by the government against people.

Brandeis briefs

Research and sociological data put together by attorney Louis Brandeis (later a Supreme Court justice) that led the court to allow some regulation of the economy by the state.

Senatorial courtesy

Senators from a judicial nominee's home state have a veto power over nominations to district courts. Each senator receives a blue slip. To allow the nominee both senators return their blue slips. If a senator does not return the slip or returns it with a negative indication the nominee does not move forward. This does not apply to Supreme Court nominees, and is less likely for appeals court judges as well, since they preside over more than 1 state.

Judges' terms

Serve for life ("during good behavior") They can be impeached (or resign or die) This allows the judges to make unpopular but necessary decisions, operating independently from other branches

Interest groups (and nominees to the courts)

The American Bar Association (ABA): A powerful interest group that represents the national interest of attorneys and the legal profession. They rate nominees as highly qualified, qualified, or not qualified. As court nominations have grown more contentious, other interest groups who feel their interests might be impacted have tried to influence the nomination (lobbying the president) and confirmation (lobbying the Senate, pushing people from senators' states to contact them) process.

Lochner v. New York, 1905

The Court overturned an New York state law that prevented bakers from working more than 10 hours a day. The law was supposed to stop pressure from bosses on workers to work long hours. The Court said that "liberty of contract" - the workers' right to freely make an agreement with the business owner took precedence over the state's police powers over safety and health of workers.

Marbury v. Madison, 1803

The Court ruled that a law passed by Congress (the Judiciary Act) was contrary to the Constitution because the law granted the Court a power it did not have under the Constitution. This was the first time that the Court had declared a law of Congress unconstitutional, and established the principle of judicial review by the courts.

Judicial self-restraint (restraint)

The Court should not overturn a law passed by Congress unless there is a concrete injury to be relieved. Some say that not acting with restraint mean judges can say the Constitution means whatever they say it means. Laws should be overturned only if they clearly and directly violate the Constitution, not just if the judge disagrees with the law. This avoids judges "legislating from the bench."

Korematsu v. United States, 1944

The Court upheld FDR's executive order that put Japanese Americans in internment camps after Pearl Harbor. This was an exception to the overall trend toward protecting more individual rights from the Court that started during the New Deal into the 1970s.

West Coast Hotel v. Parrish, 1937

The Court upheld a Washington state minimum wage law when one of the conservative justices changed to allow more regulation of the economy by state and federal governments. Sometimes called the "switch in time that saved nine" because now that economic regulation was being upheld there was no reason for FDR's court packing plan.

Ideology (on the Court)

The Court was seen as liberal under Warren and Burger, but under Rehnquist and now John Roberts the Court has become much more conservative. Despite Chief Justice John Roberts' claims about judges only calling "balls and strikes," the reality is that judges' ideology plays a substantial role in the decisions they hand down.

Legitimacy (of the Court)

The Court's only power is its legitimacy. It has no independent power to enforce its will. If decisions are extremely unpopular, or established precedents are overturned, this can call into question the reliability and therefore legitimacy of Court rulings.

The Senate's advice and consent

The Senate Judiciary committee begins the process of investigating the president's judicial appointments. Sometimes nominees appear before the committee to answer questions. Less controversial district court judges are confirmed mostly on the recommendation of the senators from the nominee's state. More polarizing (and important) Supreme Court seats go through difficult hearings before the Senate.

Confirmation (by the Senate)

The Senate must vote by a majority vote to confirm a presidential nominee to the courts. Nominations to the Supreme Court especially since Nixon (2 nominees were not confirmed) have grown more partisan and contentious.

Appellate jurisdiction

The authority of a court to review decisions made by lower courts through the appeals process. Most cases that reach the Supreme Court are heard on appeal.

JUrisdiction

The authority to hear a case.

Original jurisdiction

The authority to hear cases for the first time

Loose constructionist

The belief that judges should have freedom in interpreting the Constitution because the Constitution is a living document that takes into account changes and social conditions since ratification of the Constitution.

Common law

The body of court decisions that make up part of the law.

Tinker v. Des Moines Public Schools, 1969

The court ruled that schools need to show a substantial disruption before limiting free speech.

Attorney general

The head of the department of justice. Supervises the work of the US attorneys in each of the 94 districts in the US.

US Supreme Court

The highest court of the United States; it sits at the top of the federal court system. Mostly hears cases on appeal from circuit courts and state supreme courts. Composed of a chief justice and 8 associate justices.

Defendant

The party answering the action brought on by the other party in federal court

Petitioner

The party appealing the case (sometimes also called the appellant).

Plaintiff

The party initiating (starting) an action in federal court

Respondent

The person brought to court who won in the lower court's opinion and is being brought to respond to the appeal by the petitioner.

Judicial review

The power of the courts to declare laws (and actions by the executive) unconstitutional and void.

Sovereign immunity

The principle that a sovereign government cannot be taken to court unless it agrees to be sued.

Constitutional courts

US District Courts, US Circuit Court of Appeals, and the US Supreme Court The courts that are directly or indirectly mentioned in the Constitution.

The Burger Court

Warren Burger was appointed by Richard Nixon in 1969 as the 15th Chief Justice of the Supreme Court. The Court he presided over was more conservative than the Warren Court, handing over more power to the states through the Court's decisions, but still handed down many important "liberal" decisions.

En banc

When an appellate court that normally sits in panels of 3 judges sits as a whole court.

Federalist 78

Written by Hamilton Affirms that the independent judicial branch has the power of judicial review to examine acts of legislatures to make sure they are in agreement with the Constitution. Permanency protects judges from unpopular (but just) decisions and from influence by the other branches.