THE JUDICIAL BRANCH UNIT 7. THE NATIONAL JUDICIARY UNIT 7, NOTES 1

THE JUDICIAL BRANCHUNIT 7

THE NATIONAL JUDICIARY

UNIT 7, NOTES 1

COURT ORIGINS o Under the Articles of ________________, there was no

_________ court systemo Laws were _________________ each state

o _______________ between states or people from different states were decided in one of those states, and the other state usually ignored the _____________

o _______________ decided we must have a court system in the Constitution

o We find the ________________ of our courts in Article _____ of the Constitution

DUAL COURT SYSTEM We have a dual court system- two _________ court

systems a national ___________ and each state has its own court

system ________ courts hear most _________

_______________ creates the Supreme Court and leaves it to Congress to create the _______ of the national (federal) courts = inferior courts those __________ the Supreme Court

JURISDICTION• Federal _________ have jurisdiction (authority to hear a

case)• They have _________________ to hear a case because of

2 reasons: 1) Subject Matter

if it pertains to the _______________ or application of any part of the Constitution

2) Parties Involved if the U.S. is ____________ or its offices or agencies, an

__________________, or a state is suing another state

TYPES OF JURISDICTION☺ Exclusive jurisdiction = case can _______ be heard in

federal courts ☺ ex. Person __________ with a federal crime = tax evasion

☺ Concurrent jurisdiction = cases may be ________ in federal or state courts ☺ ex. __________ involving people from different _______

☺ Original jurisdiction = ________ which hears the case first☺ Appellate jurisdiction = court that ________ case on

appeal

JUDICIAL RESTRAINT AND JUDICIAL ACTIVISM The __________ often shape public

policy – when they rule they are making “________”

We find judges who either __________ judicial restraint or judicial ____________

JUDICIAL RESTRAINTBelieve that the _________ should decide cases based on the original intent of the __________________ and on precedent (previous decisions on similar cases)They do not ____________ judges should make laws

JUDICIAL ACTIVISM Believe that the

courts should rule based on how the law is ____________ today and in the current conditions – these __________ tend to make decisions that will have the effect of “________”

EX: Roe v. Wade, Brown v. Board of Education

FEDERAL JUDGES President appoints all ____________ judges – Senate

must _____________ Many times federal judges must interpret a ________ of

the Constitution or an act of Congress when deciding a ________ So they are often deciding on __________ of public policy EX - ___________ marijuana

Therefore the courts __________ public policy – so a _____________ wants people in the courts who have the same ideals he does

TERMSo Supreme Court and ____________ federal court judges are

appointed for __________ or until they retire or _________o They may only be removed through __________________o They are given these _________ for so long so that they

can rule _______________ to the Constitution o They don’t have to _________ about job security or being

re-elected, so they can decide a case how they really feel

THE INFERIOR COURTS _______ states divided into ______ federal judicial

districts, each with its own federal court Each ________ has at least one, some states more than

one Court of Appeals = “_______________” to the Supreme

Court Relieves much of the ____________ of caseload for the

SC by ______________ out cases Appellate Court = a court having ________________ to

review cases and issues that were originally tried in lower courts If you don’t _________ with you ruling you may appeal

your case to this court They will either agree or turn over the ___________ courts

__________ and the case may be sent up to the SC

THE SUPREME COURT Only court created in the

Constitution = ___________ Made up of Chief Justice and 8

Associate Justices Chief Justice _______________

Highest court in the land – final answer to ____________ of federal law

JUDICIAL REVIEWo SC has the power of judicial review = power to decide

whether an act of government is _____________________ o Looks at _______________, executive, and judicial acts

o Power of judicial review established in Marbury v. Madisono Important because this upheld that the Constitution was

the _______________ law of the land and that _____ legislative acts could be above it

HOW CASES REACH THE COURT Thousands of cases are _____________ to the SC each

year, but they only hear a few ________________ They select which they will hear according to rule of four

At least __________ of the nine justices must agree that case needs to be _________

HOW THE COURT OPERATESo Consider cases on a _________ week cycle

o Hear oral arguments for two weeks, then __________ to consider those cases for two weeks

o Briefs = written documents ______________ the case; filed before the case is heard o Contains ____________ information about the case and

the lower courts decisionso Justices meet in _________________ to consider cases

o Chief Justice presides – he speaks first and indicates how he plans to _________, then each associate does the same, in order of seniority

o Then they ___________ the ________

OPINIONS OF THE COURT Majority decision – the ____________ of the court that

most __________ vote for, this side wins Minority decision – the ________ of those who _________

win Chief Justice ___________ the writing of ______________ Majority opinion (Court’s Decision) – written by the Chief

Justice if he is in the ______________, otherwise he assigns it to someone else Explain their _____________ and the reasoning behind it

PRECEDENT Sets a precedent – ____________ for other courts to

follow when similar cases arise in lower ____________ A dissenting opinion must also be written by

_____________ in the minority – explains their ______________

PROMINENT MEMBERS OF THE SCJohn ________ – _______ Supreme Court Chief Justice John Marshall – longest ___________ chief justice – Almost 35 yearsRoger Taney – first ___________________ to serve as chief justiceWilliam Howard Taft – the only ______________ to serve as chief justice__________________ – the Warren CourtThurgood Marshall – first ________________________ to serve on the SCSandra Day O’Conner – First ____________ on the court

CIVIL LIBERTIES

UNIT 7, NOTES 2

THE UNALIENABLE RIGHTS We have always fought for our “inalienable rights”

The right to __________, liberty, and the pursuit of _______________ The Constitution didn’t originally contain those rights of the people

Had to be _________ through the __________ of _____________ Const. guarantees both rights and liberties to American people

There is a _______________ between the two Civil Rights = ________________ acts of government that help make constitutional guarantees

EX: CR Act of 1965 – helped ________________ the 14th, 15th and 19th Amendments – further demonstrated there should be no ____________________ based on race or gender

Civil Liberties = protections _____________ acts of the government Guarantees safety of person, _____________, property from the government EX: gov. can’t __________ free speech

INDIVIDUAL RIGHTS Constitution guarantees ___________ to everyone, but still NO ONE has the right to do whatever they _________

EX: free speech – Can’t yell _______ in a ____________ theater (Justice Oliver Wendell Holmes)

Sometimes ____________ Conflict = Sheppard v. Maxwell __________ to a fair trial vs. Freedom of press SC ruled __________ trial over press

FEDERALISM ISSUE B of R only ___________ to National Gov. Does NOT mean states can deny people of these rights

Thanks to the 14th Amendment’s _________________ Clause = “No state shall…deprive any person of life, liberty, or _______________ without the due process of law”

Can’t deny any right that is considered basic or ____________ to the American concept of liberty

But what rights are __________ and essential? Depends on the case SC has held that most _______________ of the B of R fall under due process, so are covered by 14th Amendment = must _________ to states

FEDERALISM ISSUE, CONT. Use the process of ____________________

SC has ___________/incorporated B of R guarantees into due process

EX: Gitlow v. New York SC stated that right to free speech ________ under due process, so

the state of NY couldn’t deny people of it Constitution _____________ many rights, but not all – there is no “_______” 9th Amendment takes care of the rights not _____________

Says there are certain rights that are “____________ by the people”

Most often the right to _____________ has fallen under this amendment

RELIGIOUS FREEDOM• Freedom of _________________ is protected by our 1st

Amendment rights• 1st and 14th Amendments set out 2 guarantees for our

religious freedom: _______________… 1. An “___________________ of religion” (Establishment Clause) 2. Any interference of the government in the “free _______________” of religion (Free Exercise Clause)

ESTABLISHMET CLAUSEo Sets up “wall of ________________” between church and stateo Prohibits the establishment of a church _______________ supported by the national or state governmentso BUT that doesn’t mean they are ___________ separateo Government does many things to encourage religion

o EX: Churches do not have to pay _________; many government officials take __________ and swear before God; _____________ of Allegiance

ESTABLISHMENT CLAUSE CONT. Meaning of the clause is __________ – we don’t know exactly how high that wall of separation is Many times very ___________________ Most cases involving Est. Clause are about religion and __________________ (esp. prayer in schools) SC has struck down many cases in which ______________ require recitation of prayers

EQUAL ACCESS ACT Equal Access Act – any public high school that received

______________ funds must allow student religious groups to meet on same terms as other ________________

This is because _________, etc. are voluntary

OTHER ESTABLISHMENT CASESo Religious Displays – SC allowed city in Rhode Island to

include Christian _______________ scene as long as non-Christian symbols were _____________

FREE EXERCISE CLAUSE Guarantees that each person has the right to

______________ and believe whatever religion they want HOWEVER do NOT have the right to violate any

____________, offend public morals, or threaten _________ of community

FREE EXERCISE CLAUSE, CONT. o Over years SC has _______________ church practices that

involved:o Not allowing children to ________________o Laws that require _______________ to close on Sundays

FREEDOM AND SPEECH AND PRESS The guarantee of free speech and press in the 1st

Amendment has two purposes…1) to guarantee each person the right of free

expression in ____________ and ___________ word and other means of communication

2) guarantee to all persons a full, wide-ranging discussion of ____________ affairs

SPEECH AND PRESS CONT. Intended to protect the expression of

________________ views BUT no person has unlimited rights to this

(“________” in theater) Cannot ___________ (false or malicious use of

printed word) or ___________ (false or malicious use of spoken word)

Can’t use words to prompt others to ____________ a crime (riot, overthrow gov.)

SEDITIOUS SPEECH Seditious speech – advocating or _____________

conduct that would _______________ the government by force

“__________ and present danger” test – Justice Oliver Wendell Holmes – if speech or press creates a clear and present danger that it may bring about an _________, then Cong. and the ___________ have a right to prevent it

PRIOR RESTRAINTo Constitution allows _________________ to punish

acts after they have occurred, but gov. cannot place prior restraint on them o SC says that with free expression, gov. can’t stop

something from being ____________, can only censor/punish it afterwards

o NY Times v. US – NY times had ____________ of classified _______________ (Pentagon Papers), US Dept. of Defense wanted to stop the newspaper from publishing themo SC said no, they didn’t ________ a clear threat to US

security

MEDIAo News reporters __________ they must have

confidentiality to protest their sources in order to protect free _________

o Shield Laws – give that ________________

Radio and TVo Regulated by gov. because they use “___________

property” (airwaves) to present their messageo FCC (Federal Communications Commission)

___________o SC says that the _____________ are a right of the

listeners and viewers and not the broadcasters

SYMBOLIC SPEECHo SC believes some conduct is done to express an

__________ (symbols, gestures, facial expressions, etc.)

o Picketing – _____________ of business by workers on strike – as long as its peaceful its allowed

o Tinker v. Des Moines – students wore black armbands to ______________ Vietnam War and were suspended o SC said school was _____________

o Flag Burning – very controversial o SC has twice ruled that this is ____________ speech

and is allowed

FREEDOM OF ASSEMBLY AND PETITION Constitution guarantees the right to peaceably assemble

and ____________ the government concerning grievances Protects the right to _________ views on public matters and

to influence public policy Can be through political ___________, interest groups,

organizations Right to bring views to the attention of public officials by

means of written _____________, letters, advertisements, ____________, marches, etc.

FREEDOM OF ASSEMBLY Government can make and enforce _______________ rules

concerning the time, place, and manner of assemblies EX: SC upheld law that stated groups couldn’t make

noise/cause ____________ near a school if it would disrupt regular school activity

But gov. rules must be content neutral – can regulate time/place/manner but cannot regulate on the __________ of what might be said (if neo-Nazis want to march, they can) Most cases involve public _________________ which usually

conflict with the use of public streets or other facilities SC has upheld laws that require advance notice and

___________ in for demonstrations in public places (if you need streets blocked off etc.)

FREEDOM OF ASSOCIATIONo Freedom of Association – also considered to be protected

by freedom of assembly right to ______________ with any group you wish

o NAACP v. Alabama – state law required that NAACP turn over the ______________ of all its members in the state o Refused, so ___________ steeplyo SC said AL wrong – there was no reason that the state

needed to know who was a ______________

CIVIL LIBERTIES: PROTECTING INDIVIDUALS RIGHTS

UNIT 7, NOTES 3

DUE PROCESSo There are 2 Due Process ___________ in the Constitutiono 5th Amendment – Fed. Gov. can’t ________ person of life,

liberty, ___________ without due process of lawo 14th Amendment – places those same _____________ on

states

DUE PROCESSo Supreme Court ___________ to give due process an exact

_________________ o They find its meaning on a case-by-case _________

o Ultimately means that whatever government does, it must act ____________ and follow established rules o Must be ____________________

POLICE POWER• 10th Amendment _____________ powers for the _________• This includes broad police power

• Authority of the state to act to protect and ____________ public health, safety, morals, and general welfare of its ____________

• Many times this ____________ with civil rights• Courts must find balance between needs of ____________

and individual rights• Ex: cops don’t have to have ____________ for drunk drivers

• Courts have almost always decided on side of __________ when it comes to this = major public safety

• Other examples: states can limit ____________ sales, make pollution laws, ______________ laws, school attendance laws, regulate gambling, etc.

PRIVACYo Due process also includes the right to privacy = “to be

free from unwanted ______________ into one’s privacy”o Not specifically mentioned, but we consider it a

_________________ right (5th, 14th, and 9th Amendments)o Most controversial __________________ of privacy rights

= Roe vs. Wadeo SC struck down TX law that made abortion ____________o 14th Amendment due process = right to privacy for a woman

to do what _______ wants with her __________

RIGHT TO KEEP AND BEAR ARMSo 2nd Amendment – controversial

because many __________ it should extend to the individuals right to own/carry a gun

o SC not clear on this one – usually __________ the rights of _________ to invoke gun control

SECURITY OF HOME AND PERSON 3rd Amendment = ___________

Troops Not ______________ today 4th Amendment = Illegal search

and __________ Designed to _________ use of

___________ warrants

PROBABLE CAUSEo Probable Cause – police have no general right to

_________ for evidence or seize _____________ or persons

o Proper ____________ must be issued by a court – obtained with probable __________o Reasonable __________________ of a crime

o Police don’t always have to have warrant – if evidence is in “___________________”

ARRESTSo Arrests – most take place without a _______________, but

still must have ________________ causeo Police have right to search any area where person may

____________ a weapono Courts have had trouble applying 4th amendment to cars =

but because they are a “________________ scene of crime” have more power to search without a warrant

EXCLUSIONARY RULE Exclusionary Rule –

prohibits __________ evidence = evidence seized illegally (without a warrant) is ____________ from trial

RIGHTS OF THE ACCUSEDo Must be considered ________________ until proven

____________ and treated with fair and lawful means throughout the process

o writ of habeas corpus (to have the body) = prevents ____________ arrests and imprisonments o A prisoner must be brought before a court and the officer

must _____________ with reason why the prisoner should not be released

GRAND JURYo Provided by 5th Amendmento Device by which a person accused of a ____________

crime is indicted (formally charged with the crime)o 16 to 23 peopleo _______ of them must vote for a trial for the person to be

indicted; ___________ is then held to be prosecuted o Done in secret proceedings, only the prosecution is presento Meant to protect against overzealous __________________

DOUBLE JEOPARDY 5th amendment Can’t be tried for the same crime

__________ If the jury _________ makes a

decision (hung) then there is no jeopardy (like trial __________ happened)

SELF-INCRIMINATION 5th Amendment – don’t have to

be a witness ____________ yourself

Burden of proof is on the prosecution – defendant doesn’t have to prove he is _____________

SPEEDY AND PUBLIC TRIALS 6th Amendment Ensure government won’t

________ and leave you in jail Speedy Trial Act of 1974 – length

between arrest and trial can’t be more than _______ days

Public trial – prevent any _________________ to defendant

RIGHTS TO ADEQUATE DEFENSEo 6th Amendment – right to best

_____________ defenseo Gideon v. Wainwright = must have

____________ if can’t _________ one

o Escobedo v. Illinois – if accused asks for __________ during questioning, one must be provided

MIRANDA V. ARIZONA SC invoked the Miranda Rule – before police

can question a ______________, they must be:1. Told of the right to remain ______________2. Warned anything they say can be used at

trial3. Have a _____________ to an attorney4. If can’t afford an ____________ the state will

provide one5. May bring police questioning to an _________

at any time

8TH AMENDMENTo Bail or a fine for a case must be ________________ in

relation to the seriousness of the crimeo Bail = money the accused must post (deposit to court) as

a _________________ that he will appear in court; if bail is posted, accused may go homeo Why? = belief that people should not be jailed until found

__________, and its easier for the defendant to prepare for trial outside of __________

o But not everyone is automatically entitled to bail – Const. only says the amount won’t be _______________

o Can be denied bail if there is good reason to believe the person may not _________ for trail or if the person is deemed very __________________

8TH AMENDMENTo Cruel and ______________ punishment may not be usedo This is to prevent “barbaric tortures”o SC has only heard a few cases – all __________ with capital

punishmento Capital punishment = punishment by ____________o SC has upheld state laws that require a 2 trial systemo One to determine guilt or innocence and the other to determine if

the ____________ warrants the death penaltyoOnly for crimes resulting in the __________ of the

______________oMany have appealed to the SC, but they have ___________

found that the death penalty, if applied fairly, is ___________________