Judicial Systems - Judicial Activism & Restraint · the words “judicial activism” and “judicial restraint” on the board and ask the students if they know the difference between

JUSTICE IN THE CLASSROOM ➤ JUDICIAL SYSTEMS - ACTIVISM & RESTRAINT ➤ HIGH SCHOOL

Judicial Systems - Judicial Activism & Restraint High School US/VA Government Objectives: Students will be able to: ● use primary and secondary sources; ● use, create, and interpret charts, diagrams, and pictures to determine characteristics of people,

places, or events; ● develop fluency in content vocabulary, and comprehension of verbal, written, and visual

sources; ● gather and classify information; ● access a variety of media, including online resources; and ● explain intended and unintended outcomes and the possible consequences of public policy.

Standards Virginia SOL: GOVT.10 The student will apply social science skills to understand the federal

judiciary by GOVT.10d Comparing the philosophies of judicial activism and judicial restraint;

● Judicial activists believe federal courts should use the power of judicial review to resolve important societal issues. Since justices are not elected, they can make controversial decisions without fear of losing office (e.g., Brown v. Board of Education).

● Those in favor of judicial restraint argue that the Supreme Court should avoid ruling on constitutional issues whenever possible. When action is necessary, the Court should decide cases in as narrow a manner as possible (e.g., Dred Scott, Plessy v. Ferguson).

GOVT.10e Investigating and evaluating how the judiciary influences public policy by delineating the power of government and safeguarding the rights of the individual. ● The United States Supreme Court’s exercise of the power of judicial

review can invalidate legislative acts and executive actions that exceed the scope of powers granted by the Constitution of the United States.

● Federal courts, by interpreting and applying federal law to specific situations, provide meaning to legislative acts and executive actions.

● The United States Supreme Court defines the limits of government power and protects individual rights from governmental abuse.

National: NSS-C.9-12.3 Principles of Democracy

Approx. Time: Two 90 minute blocks or four 45 minute blocks

Hook: To introduce this lesson, begin with the very basics to make sure students understand the words “activism” and “restraint.” To do this, tell the students you will show them two funny dog videos you found on the internet. Using the links below, show the two different videos of dogs. The first video is of a VERY ACTIVE dog and the second video is a group of dogs showing GREAT RESTRAINT.

JS-HS-ACTRE1 Last Update: July 30, 2019

JUSTICEINTHECLASSROOM.NET ©2018 THE JOHN MARSHALL FOUNDATION

Websites cited within lesson plans are for instructional purposes only and should be used with the guidance of professional educational personnel. Websites cited within these lesson plans are not supported or endorsed by The John Marshall Foundation.


Judicial Systems - Judicial Activism & Restraint After showing the video, write the words “Active” and “Restraint” on the board and ask the students which video demonstrated a dog being active and which demonstrated dogs using restraint. Ask them what the difference is between the words “active” and “restraint.” After a brief discussion, write the words “judicial activism” and “judicial restraint” on the board and ask the students if they know the difference between those two terms. Explain that they will be learning about these concepts that are much like the dogs’ behavior in the videos. When judges engage in judicial activism, they use the power of judicial review to basically expand or narrow existing laws, so they are being “active” like the dog in the first video. When judges engage in judicial restraint, however, judges often avoid making decisions that make law or policy and defer to Congress to do that, so they are “holding back” just like the dogs in the second video holding back until they are given permission to eat.

Active Dog Video: https://www.youtube.com/watch?v=zjdfDaRRclE (running time: 90 seconds)

Dogs Showing Restraint Video: https://www.youtube.com/watch?v=MBq1RZKpQOI (running time: 45 seconds)

For essential knowledge of judicial activism and judicial restraint, have students watch a video on the Khan Academy website and take notes. The Khan Academy has a great video titled “Judicial Activism and Judicial Restraint” explaining those concepts using the Baker v Carr case. The video can be assigned for homework, if students have access to the internet, or can be shown during class. Suggest that students make two columns when taking notes: one labeled “judicial activism” and the other “judicial restraint” and write information under each related term. The video uses the US Supreme Court case Baker v Carr as an example of judicial activism, so students should include information about that case in their notes also.

Assessment: After a brief discussion about judicial activism and judicial restraint and how it relates to Baker v Carr, distribute the student handout U.S. v Maurice Lamont Davis & Andre Levon Glover. As students read it, project it on the board, if possible. Explain that this case concerned two men charged with a crime, but, because the wording of the law they were charged with breaking was so vague, the men challenged it in court as unconstitutional. This reading is a portion of the decision written by Justice Gorsuch. Have the students determine whether this is an example of judicial activism or judicial restraint. This is, of course, an excellent example of judicial restraint! Have the students identify sentences that reflect the idea of judicial restraint and underline them on the board.

Now that the students have a better understanding of judicial activism and judicial restraint, it is time to test their understanding by having them try to determine if a particular U.S. Supreme Court case is an example of judicial restraint or judicial activism!

To do this, divide them into 7 groups and assign a particular court case listed below. Provide each group with multiple copies of the corresponding information sheet for their case located at the end of the lesson. Each group will create a presentation for the case assigned to them with basic information about the case (specific information listed below). Presentations can be in digital format (Google Slides, Prezi, or an infographic) or on large paper. Once the case is presented to the class, students must determine if the decision is an example of judicial activism or judicial restraint, so be sure not to tell them ahead of time!




https://www.youtube.com/watch?v=zjdfDaRRclE

https://www.youtube.com/watch?v=MBq1RZKpQOI


Judicial Systems - Judicial Activism & Restraint Once students have discussed each case and decided if it represents judicial restraint or judicial activism and WHY, have them list each case under the correct column in their notes as examples.

Suggested sites for creating an infographic: https://www.creativebloq.com/infographic/tools-2131971

Presentations should include: ● The title of the case ● The year the case was decided ● A brief explanation of the details or facts of the case ● A brief summary of the opinion of the case ● A picture or symbol representing the main ideas of the case

Groups of Cases to be Assigned: Examples of judicial restraint: 1. Luther v Borden 2. Plessy v Ferguson 3. Lyng v Northwest Indian Cemetery Protective Association Examples of judicial activism: 4. Brown v Board of Education 5. Roe v Wade 6. Bush v Gore 7. District of Columbia v Heller




https://www.creativebloq.com/infographic/tools-2131971


Judicial Systems - Judicial Activism & Restraint

U.S. v Maurice Lamont Davis & Andre Levon Glover Cite as: 588 U. S. ____ (2019)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States,

Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES No. 18–431

UNITED STATES, PETITIONER v. MAURICE LAMONT DAVIS AND ANDRE LEVON GLOVER

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

[June 24, 2019]

JUSTICE GORSUCH delivered the opinion of the Court.

In our constitutional order, a vague law is no law at all. Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again….

Even the government admits that this language, read in the way nearly everyone (including the government) has long understood it, provides no reliable way to determine which offenses qualify as crimes of violence and thus is unconstitutionally vague. So today the government attempts a new and alternative reading designed to save the residual clause. But this reading, it turns out, cannot be squared with the statute’s text, context, and history. Were we to adopt it, we would be effectively stepping outside our role as judges and writing a new law rather than applying the one Congress adopted.

Source: Legal Information Institute, Cornell University. Available at: https://www.law.cornell.edu/supremecourt/text/18-431#writing-18-431_OPINION_3


©2018 THE JOHN MARSHALL FOUNDATION


https://www.law.cornell.edu/supremecourt/text/18-431#writing-18-431_OPINION_3


Judicial Systems - Judicial Activism & Restraint TEACHER KEY with Examples of Judicial Restraint Underlined

U.S. v Maurice Lamont Davis & Andre Levon Glover Cite as: 588 U. S. ____ (2019)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States,

Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES No. 18–431

UNITED STATES, PETITIONER v. MAURICE LAMONT DAVIS AND ANDRE LEVON GLOVER

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

[June 24, 2019]

JUSTICE GORSUCH delivered the opinion of the Court.

In our constitutional order, a vague law is no law at all. Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again….

Even the government admits that this language, read in the way nearly everyone (including the government) has long understood it, provides no reliable way to determine which offenses qualify as crimes of violence and thus is unconstitutionally vague. So today the government attempts a new and alternative reading designed to save the residual clause. But this reading, it turns out, cannot be squared with the statute’s text, context, and history. Were we to adopt it, we would be effectively stepping outside our role as judges and writing a new law rather than applying the one Congress adopted.

Source: Legal Information Institute, Cornell University. Available at: https://www.law.cornell.edu/supremecourt/text/18-431#writing-18-431_OPINION_3




https://www.law.cornell.edu/supremecourt/text/18-431#writing-18-431_OPINION_3


Judicial Systems - Judicial Activism & Restraint Luther v Borden (Decided in 1849)

In 1842 the state of Rhode Island was in conflict over who should be in charge. At the time, there were actually two governments, including two governors and two state legislatures. The reason for this was one government existed because of the original charter that help start the colony. This government, however, restricted voting rights for many, so a group of citizens in Rhode Island decided to create a new government, allowing more males to vote. This, of course, created conflict, and the old government declared martial law, allowing it to use the military to put down any rebellion, including those fighting for a new government. One of those rebelling was Martin Luther and he filed a lawsuit against the old government, eventually going all the way to the U.S. Supreme Court. Luther claimed that the old government was not a “republican form of government” so any of its actions were illegal or invalid.

The question was: Did the U.S. Supreme Court have the constitutional authority to declare which government was actually the real and legitimate government?

The Supreme Court decided that it was not up to the courts to decide which state government was the real one or even determine who can vote in a state. That decision should be up to Congress or the President under Article IV Section 4 of the Constitution, having the power to guarantee republican government in the states and to recognize lawful state governments.

Source: "Luther v. Borden." Oyez, www.oyez.org/cases/1789-1850/48us1 . Accessed 26 Jul. 2019

Source: “Luther v. Borden. Encyclopædia Britannica, Encyclopædia Britannica, Inc., August 25, 2010, https://www.britannica.com/event/Luther-v-Borden . Accessed July 24, 2019




http://www.oyez.org/cases/1789-1850/48us1

https://www.britannica.com/event/Luther-v-Borden


Judicial Systems - Judicial Activism & Restraint Plessy v Ferguson (Decided in 1896)

In 1890, the state of Louisiana passed a law, the Separate Car Act, which required all railroads operating in the state provide “equal but separate accommodations” for white and African Americans and forbid passengers to enter any train car not assigned to them. A group of citizens in New Orleans decided to challenge the constitutionality of the law by having Homer Plessy, who was one-eighth African American, purchase a ticket to travel by train in Louisiana and sit in the train car designated for whites only. When it was discovered Plessy was part African American, he was told to move to the car designated for African Americans. He refused and was arrested.

Eventually, the case made it to the U.S. Supreme Court.

The question was: Did the Separate Car Act violate the 14th Amendment, specifically the equal protection clause which guarantees citizens in all states equal protection under the law?

The Supreme Court decided against Plessy and determined that Louisiana’s Separate Car Act did not violate the 13th Amendment prohibiting slavery or the 14th Amendment guaranteeing legal equality of African Americans. Simply separating whites and African Americans was not violating the equal protection clause, because both races received equal accommodations or train cars.

This case created the idea of “separate but equal” which supported the idea of segregation of the races.

Source: "Plessy v. Ferguson." Oyez, www.oyez.org/cases/1850-1900/163us537 . Accessed 24 Jul. 2019.

Source: “Plessy v. Ferguson.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., Published:May 11, 2019, https://www.britannica.com/event/Plessy-v-Ferguson-1896 . Accessed July 24, 2019





https://www.britannica.com/event/Plessy-v-Ferguson-1896


Judicial Systems - Judicial Activism & Restraint Lyng v Northwest Indian Cemetery Protective Association (Decided in 1988)

In 1982, the United States Forest Service considered building a paved road through federal land and also considered harvesting some of the timber in the same area. The Forest Service hired a commission to create a report on how building the road and cutting of the timber would impact the area, including impacting Native American tribes who used parts of the Chimney Rock area of the Six Rivers National Forest for religious practices.

The commission concluded that the project would damage the sacred areas used by the Native American tribes for religious practices. The Forest Service rejected the findings of the commission and planned to build the road and harvest the timber.

A group known as the Northwest Indian Cemetery Protective Association decided to sue the Secretary of Agriculture Richard Lyng to stop the project.

The case eventually made it to the U.S. Supreme Court where the Northwest Indian Cemetery Protective Association claimed that the building of the road violated the 1st Amendment’s Free Exercise Clause. They argued that by building the road, the federal government was disrupting the religious rituals of the Native Americans, not allowing them to exercise, or practice, their religion freely.

The question was: Did the First Amendment’s Free Exercise Clause prohibit the government from harvesting or developing the Chimney Rock area?

The Supreme Court decided that the Free Exercise Clause did not prohibit the government from harvesting or developing the Chimney Rock area. The court concluded that, although the government’s actions would definitely affect the religious rituals of the Native Americans, the effects were incidental, meaning they were not that bad. Also, the government was not forcing the Native Americans to do something they did not want to do and they were still able to practice their rituals. In the end, the court reasoned that the government could not operate “if it were required to satisfy every citizen’s religious needs and desires.”

Source: "Lyng v. Northwest Indian Cemetery Protective Association." Oyez, www.oyez.org/cases/1987/86-1013 . Accessed 24 Jul. 2019.

Source: Lyng v. Northwest Indian Cemetery, 485 U.S. 439 (1988), JUSTIA, https://supreme.justia.com/cases/federal/us/485/439/ . Accessed 24 Jul. 2019




http://www.oyez.org/cases/1987/86-1013

https://supreme.justia.com/cases/federal/us/485/439/


Judicial Systems - Judicial Activism & Restraint -Brown v Board of Education of Topeka (Decided in 1954)

The case known as “Brown v Board of Education” was actually several cases bundled together from various states, including South Carolina, Kansas, Virginia, Maryland, and Washington, D.C. but they all concerned segregated public schools where white and African American students were forced by law to attend separate schools. Segregated schools had been challenged in the courts many times, but they were always allowed because of the previous decision in Plessy v Ferguson which established the “separate but equal” doctrine. As long as the white and African American schools were equal, it was legal to keep them separate.

Eventually, the bundle of cases arrived to the U.S. Supreme Court. The court was deeply divided on the subject of desegregating, or integrating, public schools and was unable to make a decision during the term (1952-53) in which it was heard, so they decided to have the case re-argued in the next term (1953-54). During that time, the Chief Justice, Fred Vinson died and was replaced by Earl Warren. Thurgood Marshall, the lead lawyer for the National Association for Colored People argued the case again in front of the court with a new chief justice, focusing on the 14th Amendment’s Equal Protection Clause.

The question was: Does the segregation of public education based solely on race violate the Equal Protection Clause of the Fourteenth Amendment?

The Supreme Court, in a unanimous decision, ruled that segregated schools did violate the Equal Protection Clause. The 14th Amendment states that citizens of all states are guaranteed equal protection under the law and the court ruled that “in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal…” In a second Brown decision, the Supreme Court decided States, under review of the lower federal courts that originally decided the desegregation cases, were ordered to desegregate their public schools with “all deliberate speed.”

Source: "Brown v. Board of Education of Topeka (1)." Oyez, www.oyez.org/cases/1940-1955/347us483 . Accessed 25 Jul. 2019.

Source: “History—Brown v Board of Education Re-enactment.” United States Courts, https://www.uscourts.gov/educational-resources/educational-activities/history-brown-v-board-education-re-enactment . Accessed 25 Jul. 2019.





https://www.uscourts.gov/educational-resources/educational-activities/history-brown-v-board-education-re-enactment

https://www.uscourts.gov/educational-resources/educational-activities/history-brown-v-board-education-re-enactment


Judicial Systems - Judicial Activism & Restraint Roe v Wade (Decided in 1973)

In 1970, Jane Roe (a false name used by Norma McCorvey to hide her identity) filed a lawsuit against Henry Wade, the district attorney for Dallas County, Texas where she lived. Roe was pregnant and was challenging a set of Texas laws that made it illegal for a woman to have an abortion under most circumstances. Her lawyers argued that the Texas laws were unconstitutional because they violated her constitutional right to personal privacy, a right which was established in a previous U.S. Supreme Court case.

The case eventually makes its way to the U.S. Supreme Court.

The question was: Does the Constitution recognize a woman’s right to terminate her pregnancy by abortion?

The Court decided that the Constitution does recognize a woman’s right to terminate a pregnancy, however, states also have a right to protect the life of the unborn child. The Court ruled that there is a fundamental “right to privacy” protected by the 14th Amendment’s Due Process Clause and the Ninth Amendment’s reservation of rights to the people that protects a woman’s right to decide whether to terminate her pregnancy. So, any state law that prohibits abortion at any time violates the Constitution. However, states can restrict or eventually prohibit abortions later in the pregnancy to protect the health of the mother or life of the unborn child.

This case essentially made abortion legal in the United States during the first trimester, or first three months, of pregnancy.

Source: "Roe v. Wade." Oyez, www.oyez.org/cases/1971/70-18 . Accessed 25 Jul. 2019.

Source: “Roe v. Wade.” Encyclopædia Britannica. Encyclopædia Britannica, Inc. Published June 13, 2019, https://www.britannica.com/event/Roe-v-Wade . Accessed July 25, 2019





https://www.britannica.com/event/Roe-v-Wade


Judicial Systems - Judicial Activism & Restraint Bush v Gore (Decided in 2000)

The 2000 presidential election was one of the closest elections in U.S history. On election night, it seemed there was no clear winner between Republican candidate George W. Bush and Democrat candidate Al Gore. In the end, it all came down to the votes in the state of Florida. Initially, television networks declared Al Gore the winner, but then later, after seeing the votes change, declared Bush had taken the lead. Gore called Bush to concede, declaring Bush the winner, but as the night went on, the difference in votes continued to get smaller. In a surprise, Gore called Bush at 3 a.m. and withdrew his concession, meaning he was stating that Bush had not won the election just yet.

Florida law requires a machine recount if the difference in election results are less than 0.5 percent. For this race, it looked like the difference was about 0.01 percent. At the end of the machine recount, Bush had a lead of 327 votes out of 6 million votes counted.

Legal challenges were filed by both sides, questioning the hand recounting of ballots. The Florida State Supreme Court ruled that the hand recounts should continue in certain counties where vote totals were questionable.

The Bush campaign appealed to the U.S. Supreme Court to stop the recount and have the election results certified, officially declaring Bush the winner.

The questions were: Did the Florida Supreme Court violate Article II, Section 1, Clause 2 of the U.S. Constitution by making new election law? Do standardless manual recounts violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment?

The Supreme Court decided that the Florida State Supreme Court’s plan for recounts was unconstitutional because different standards were applied from county to county for the recount procedure and that violated the Equal Protection and Due Process Clauses of the 14th Amendment. Some justices wrote in their opinion that the Florida State Supreme Court essentially created new election law, which was unconstitutional because only the state legislature can do that.

In the end, the recount came to a halt and George W. Bush was proclaimed the winner of the presidential election of 2000.

Source: "Bush v. Gore." Oyez, www.oyez.org/cases/2000/00-949 . Accessed 25 Jul. 2019.

Source: “Bush v. Gore.” Encyclopædia Britannica, Encyclopædia Britannica, Inc. Published December 05, 2018, https://www.britannica.com/event/Bush-v-Gore . Accessed July 25, 2019





https://www.britannica.com/event/Bush-v-Gore


Judicial Systems - Judicial Activism & Restraint District of Columbia v Heller (Decided in 2008)

Washington, D.C. had created laws restricting guns and gun ownership. Specifically, these laws made carrying an unregistered firearm illegal and prohibited altogether the registration of any handgun, however, the chief of police could issue special registrations for handguns for one year. Also included in the laws were provisions that required owners of lawfully registered firearms to keep them unloaded, disassembled, or equip them with trigger locks unless they were located in a business or were being used for legal recreational activities.

Dick Heller, a special police officer for D.C. who was authorized to carry a handgun while on duty, applied for a license for a personal handgun, but was denied, so he challenged the D.C. laws in court, arguing they violated his 2nd Amendment right to keep and bear arms.

Eventually, the case was heard by the U.S. Supreme Court.

The question was: Do the provisions of the District of Columbia Code that restrict the licensing of handguns and require licensed firearms kept in the home to be kept nonfunctional violate the 2nd Amendment?

The Supreme Court decided the D.C. statute violated the 2nd Amendment. The Court stated that the first part of the Amendment, that a “well-regulated Militia” is necessary to security, did not limit the right to bear arms only to those in a military force. The majority of the Court found the main clause of the Amendment, “the right of the people to keep and bear Arms, shall not be infringed” guarantees individual citizens’ rights to keep and bear arms to protect themselves.

This decision overturned Washington, D.C.’s laws banning and restricting the ownership and use of handguns and other firearms.

Source: "District of Columbia v. Heller." Oyez, www.oyez.org/cases/2007/07-290 . Accessed 25 Jul. 2019.

Source: “District of Columbia v. Heller.” Encyclopædia Britannica, Encyclopædia Britannica, inc., Published June 19, 2019, https://www.britannica.com/event/District-of-Columbia-v-Heller . Accessed July 25, 2019





https://www.britannica.com/event/District-of-Columbia-v-Heller

Documents

Judicial Systems - Judicial Activism & Restraint · the words “judicial activism” and “judicial restraint” on the board and ask the students if they know the difference between