CJ 275 Exam 2

Harlan (I)/Black v. Murphy v. Cardozo v. White approaches to incorporation?

Total incorporation (Harlan [1]/Black) Total Incorporation PLUS (Murphy), Selective Incorporation (Cardozo) and Selective Incorporation- Anglo-Am-traditions (White)

What is plurality opinion?

an opinion of the court that has the most (but not a majority) of the votes.

What are interpretation challenges of the first amendment?

are hateful things still under the protection, racist comments, things that put others in danger.

What is the justices' purpose in oral argument?

ask questions to help them make up their own minds and ask questions to raise issues they want the other judges to consider.

What is Nationalization?

to invest control or ownership of in the national government.

What are conflicts among US Court of Appeals as cue?

Courts own rules provided no standard whatsoever to its certiorari decisions. Now certiorari petitions contain identifiable cues to perform the initial review.

What was the issue, rule, and Harlan (I) dissent in Hurtado v. California?

Issue - Does a state criminal proceeding based on information rather than a grand jury indictment violate the 14th amendment's due process clause? Rule - No, not a violation of due process. Harlan (I) Dissent -not constituting that due process of law required by the 5th amendment of the constitution of the U.S., similar proceedings, conducted under the authority of a state, must be deemed illegal, as not being due process of law within the meaning of the 14th amendment

What is "reasonable expectations of privacy"?

the right an individual has ex.) smoking crack with the window wide open is not a reasonable expectation of privacy.

How do unelected judges fit with US definition of democracy?

they are appointed by the president and approved by the senate.

What is the role of Supreme Court law clerks?

they assist justices with their work. Read cases petitioned to the court. draft memos to aid justices in their decision-making. Also, assist judges in writing their opinion.

What is police use of excessive forces connection to constitutional rights?

use of excessive force by police officers is a 4th amendment violation as it is an unreasonable "seizure"

Tracking devices?

without a proper warrant is considered a search and violated reasonable expectation of privacy.

What are statutes?

laws created by legislatures

What is a discuss list?

list of cases worthy of discussion for possible discussion, other justices can add cases to the list. The discuss list is made by the Chief Justice.

What are the approaches to constitutional interpretation?

literal, original intent/originalism, and flexible.

What kind of recording takes place in the Supreme Court (US)?

Audio, not video and are quickly made public.

What are cert memos and bench memos?

"bench memos" are papers that range anywhere from three to 50 pages long that summarize the parties' arguments and offer the clerk's own analysis of the relevant legal issue. Bench memos are neutral memos which summarize the facts, issues, and arguments of a court case.

What was the reasoning in Lawrence v. Texas?

1. Supreme Court precedents establish a right to privacy regarding use of contraceptives, abortion, and other matters. 2. Bowers v. Hardwick was decided incorrectly.

If situations are "seizures" - how do we know if they are legal or if they violate 4th amendment rights?

1. warrant issued by judicial officer, supported by probable cause, OR 2. must be 'reasonable' according to judges' interpretation of the words.

What are examples of rights not yet incorporated?

3rd (quartering troops in homes), 5th (right to grand jury), 7th (right to jury in civil cases for amounts greater than $20), 8th (excessive fines, excessive bail)

What was the score in Lawrence v. Texas?

6-3

What are appellate briefs?

Appellate briefs En banc: hearing in which all the judges of an appellate court hear and decide a case together as a group rather than in three member panels

Who are the Supreme Court Justices?

Chief Justice John Roberts, Ruth Ginsburg, Stephen Breyer, Clarance Thomas, Elana Kagan, Samuel Alito, Sonia Sotomayor, Neil Gorsuch, Brett Kavanaugh.

What is the order of voting in Supreme Court conference?

Chief Justice begins by stating the facts of the case an casting his vote. Voting the proceeds in order of seniority. Only justices are present.

What was Powell concurrence and regret in Bowers?

Concurrence - Powell said there is not a constitutional argument before them bc the individual was not tried but if they were the long duration of this sentence would create a serious 8th amendment issue; Regret - made a mistake voting with the majority, such actions/inactions by one individual determine law and policy for the nation.

What are the forms of law?

Constitutions, statutes, case law, and regulations. All of these forms are interpreted by judges when legal cases arise questioning meaning and application of the words.

What was the issue and rule in Barron v. Baltimore?

Does the 5th amendment deny the states as well as the national government the right to take private property for public use without justly compensating the property owner? rule- no jurisdiction in this case

What was the Chicago railroad case?

First recognition of specific right in 14th amendment due process clause. But - Property right for a railroad to receive just compensation for property as in the 5th amendment.

What was Scalia's approach to District of Colombia v. Heller?

Flexible

What are the approaches of justices Stevens and Souter?

Flexible approach

What does it mean when justices are meeting in conference?

Following the oral argument - discussion led by Chief Justice who expresses view first and then other justices peak in order of seniority.

What is the petition for writ of certiorari?

Petition for a court case to be heard by the US Supreme Court.

What are research examples on prevalence and context of discrimination?

Houston - on traffic stops searched 12% of African American drivers, 9% hispanic, 3.7% white; National study found African am. 50% more likely than white drivers to be searches and hispanic 42% higher; African American women most likely demographic to be subject to physical search at airport arriving from international flight.

What is a cert pool?

Implemented in the early 1970s. Participating justices pool their clerks to divide up the petitions for preliminary review. Not all justices participate.

What was the issue and importance of Gitlow v. New York?

Issue - Does the 1st amendment prevent a state from punishing political speech that directly advocates the government's violent overthrow? Importance - first recognition of personal right as part of due process in 14th amendment. Incorporated free speech part of 1st amendment in 14th amendment for application against states.

What was the issue, rule, and importance in McDonald v. City of Chicago?

Issue - Does the 2nd amend right apply against the states either through the 14th amend due process clause or the 14th amend privileges or immunities clause? Rule- Reversed 7th circuit holding that 14th amend makes 2nd amend right applicable to states. ;Importance - First incorporation case since Duncan.

What was the issue, rule, and importance in Palko v. Connecticut?

Issue - Does the prohibition against double jeopardy contained in the 5th amendment apply to state trials as part of the 14th amendment due process in a case where the defendant was convicted and sentenced to life in prison, but upon the prosecutors appeal, was re-tried, convicted of 1st degree murder and sentenced to death? Rule - No; Importance - Cardzo set out a test to determine which rights are incorporated in 14th amend due process clause and which are not.

What was the issue, rule, viewpoints of Black and Murphy on incorporation in Adamson v. California?

Issue - Is a defendant's 5th amend right not to bear witness against himself applicable in state courts and protected by the 14th amend's due process clause? Rule - no; Black and Murphy had a total incorporation viewpoint on incorporation.

What was the issue, rule, and how did White differentiate from Cardozo's test in Palko in Duncan v. Louisiana?

Issue - Is the 6th amend right to trial by jury incorporated into the 14th amend due process clause for application as a right in state trials? Rule- Yes; Whites test did not focus on a hypothetical free society as did Cardozo - but whether it is fundamental to our free society and our Anglo-American values and traditions.

Who was the author of Lawrence v. Texas?

Kennedy

What are the 4th amendment issues with New York City large-scale stop-and-frisk program?

Most stops were based entirely on the perceived race and sex of individuals not reasonable suspicion. 685,000 stops in 2011 and 13,000 in 2019 after program eliminated.

If situations are "searches" - how do we know if they are legal or if they violate 4th amendment rights?

Need to fit in one of two categories: 1. a warrant was issued, justified by probable cause, to authorize that specific search OR 2. the search was 'reasonable' ---in the eyes of judges/Supreme Court justices to define when searches are permissible without a warrant.

What were the slaughterhouse cases?

New Orleans butchers challenged a monopoly granted by the state of Louisiana to a slaughterhouse company. Blamed violations of all three provisions of the 14th amendment. Although court rejected all three arguments. Dissenting judges were open to seeing a violation of either privileges/immunities or due process.

What are the rights expressed in the 14th amendment (1868)?

No state shall... (1) abridge the privileges or immunities of citizens of the U.S. (2) deprive any person of life, liberty, or property without due process of law and (3) deny any person...the equal protection of the laws.

When does the Supreme Court hear oral arguments?

October-April and continues to write and issue opinions through end of June.

What were the facts of Lawrence v. Texas?

Officer entered residence in response to report regarding weapons. Walked in to observe two men engaging in a sexual act. Men were violating state law making it a crime for individuals of the same sex to engage in specific sex acts.

What was the surprise of safford case outcome compared to oral argument?

Oral argument - seemed that the search was reasonable and did not violate the 4th amendment. Outcome -the search was not found to be reasonable because there was no reason to suppose that Savana was carrying pills in her underwear.

What were the roles of Scalia and Ginsburg in the Safford School case?

Scalia jumps in to help school attorney emphasize the potential danger and put the girl's attorney . Ginsburg asserts herself to help girl's side in the case highlighting lack of reliable evidence to justify the search.

What is the opinion assignment process?

Supreme Court - Chief Justice assigns opinion if in the majority vote otherwise most senior justice makes the assignment; Appeals - most senior judge makes assignment; states - 1. Chief Justice 2. rotating basis 3. random

Judicial policy making/courts and policy making...

occurs through court cases and court decisions that arise in the judicial system.

What is judicial activism? its use?

the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent

What are the key words in the 4th amendment? (definitions and justifications)

Unreasonable, searches, seizures, probable cause.

Examples of heat-detection devices?

Using a heat detection device through a well to detect grow lights is a violation of privacy and is therefore a search.

What is the possibility of litigation and civil liability for certain kinds of 4th amendment violations?

Very likely to settle on cases including police brutality and police action including raids.

What is the near-Impossibility of successful litigation for other kinds of 4th amendment violations?

Very unlikely for other kinds of 4th amendment violations to have successful litigation.

What is case law?

law created by judges in judicial opinions

What is "totality of circumstances" for probable cause?

a focus on all the circumstances of a particular case, rather than any one factor. Probable cause is based upon this consideration.

What is Join 3?

a practice in which a justice may not have seen the case as worthy of granting cert but, if three other justices do, then the original justice will cast the fourth vote to meet the requirements of the rule of four.

What is dissent?

a separate opinion in which the judge disagrees with the outcome in the case and the reasoning articulated in the majority opinion.

What are searches?

actions by law enforcement/government officials that intrude upon people's reasonable expectations of privacy.

What keeps federal judges from acting as "dictators"?

checks and balances of the system. Legislation and executive branches of government.

Open fields?

do not have a reasonable expectation of privacy - only the "curtilage" by the house.

What are interpretation challenges of the second amendment?

does militia still apply, relevance?, ratified in 1791.

What was the issue in Lawrence v. Texas?

does this crime, consensual and private residence, violate the 14th amendment's due process clause and/or equal protection clause?

What are implications for 4th amendment issues in Atwater v. City of Lago Vista (2001)?

doesn't forbid officer from making warrantless arrest for seatbelt violation even though max is $50. Can be deprived of liberty and jailed while waiting processing for offense.

what are amicus briefs?

filed by third-parties. Originally filed by those with no stake in the outcome of a case. They are new tools to advocacy and majority are filed by interest groups.

What is the rule of four?

four justices must vote to accept a case.

What did the Houston v. Hill case illustrate?

in the face of verbal challenges to police action, officers and municipalities must respond with restraint.

What are regulations?

law created by government agencies with authority delegated to them by legislatures.

What are issues, examples, causes of problems in Ferguson criminal justice system?

officers frequently infringe on 1st amendment rights and make decisions based on how individuals express themselves. Stop citizens and ask for identification for no reason at all. Used police not as a public service, but a way to raise revenue. More arrests and more charges and seek out ways to bring in more money. 50% more violations in 2011 than in 2010, 1.3 million in fines and fees. Necessary force used with those who had mental illness.

What were the different characterizations of issue in Bowers v. Hardwick?

officers shows up at man's home to execute erroneous arrest warrant for public drinking ticket -- already paid. Saw two men in bed together, both arrested and charged under state sodomy laws. Case was challenged constitutionally and dropped.

What are the approaches of Justices Scalia and Thomas?

original intent/originalism

What is right, power, authority?

people have rights, officers have authority, and officers can assert power.

What did the Brown v. Mississippi case illustrate?

police could engage in discrimination and abuse their powers through the use of violence.

What is the prevalence and impact of discretion?

police possess the ability to do acts that exceed their proper legal authority. We cannot supervise or control police officers in all circumstances.

What are practical risks of judges working closely with police and prosecutors, courtroom workgroup?

risk that judges become so accustomed to working with and become personally friendly with police and prosecutors, that they routinely approve warrants without looking closely at probable cause basis.

What are the components of the case brief?

score, author, facts, issue, holding, and reasoning, concurring opinion, dissenting opinion

What are the elements of a case brief?

score, author, facts, issue, holding, and reasoning, concurring opinion, dissenting opinion

What are "articulable facts"?

support a reasonable suspicion that a crime has been committed.

What are seizures?

taking person or property by law enforcement/government officials.

What is Incorporation?

taking rights from bill of rights and placing them into the 14th amendment's due process clause.

What was the holding in Lawrence v. Texas?

the Texas statue making it a crime for consenting adults of the same sex to engage in specified sex acts in their private residences violates the right to privacy contained in the 14th amendment's due process clause.