Unit 3: Unit 3: AMERICAN AMERICAN

LAW:LAW: The Judicial The Judicial Branch, Civil Branch, Civil

Rights, & Rights, & Civil LibertiesCivil Liberties

1. Overview1. Overview

What does the Judicial What does the Judicial Branch doBranch do??JB’s Duty: Interpret the Constitution, decide

how it applies to modern law

Sources of American Law

1. Common Law: customs & court decisions from US and England

2. US Constitution: supreme law of the land

3. Statutory law: based on laws passed by Congress and State Legislatures

“Stare Decisis”

• Justices are supposed to decide cases with regard to previous Court decisions (precedent)

Legal TermsLegal Terms•Civil Law: laws between individuals, object is to receive compensation for harms suffered by another’s wrongful action

•Jurisdiction: “to speak the law” or a court’s authority to decide a case

•Criminal Law: deals with wrongs committed against society, gov. seeks to impose penalty ($ or imprisonment) against lawbreaker

•Standing: In order to sue, one must have been harmed by the act or law

Court SystemCourt System

•Trial Courts: Court that hears the case for the first time (original jurisdiction)•Appellate Court: Courts that reviews cases already decided and either affirms or reverses the decision (appellate jurisdiction)

Court SystemCourt System

Court SystemCourt System

2. The Power of the Courts

COURTS: power to make policy

•  By interpretation of constitution or law • By extending reach of existing law• By designing remedies

Judicial Activism: Striking down Congressional laws or past precedent

Judges: Two party system?

• Strict constructionist: judges are bound by wording of Constitution

• Activist: judges should look to underlying principles of Constitution, but also consider today’s society

• Not a matter of liberal versus conservative– A judge can be both conservative and activist,

or liberal and strict constructionist

Checks on the federal courts • Decisions can be ignored (Trail of Tears) • Congress confirms judges and can impeach and change

legislation that was overruled • Public Opinion: public confidence in courts give it its

legitimacy

The Supreme Court THE NINE

THOMAS(Bush I)

SCALITO(Reagan)

ROBERTS

(Bush II)

Sotomayor(Obama)

BREYER(Clinton)

GINSBURG(Clinton)

ALITO(Bush II)

KENNEDY(Reagan)

Kagan(Obama)

Court Procedures

•  Rule of Four - 4 SCOTUS Justices must want to hear a case

• Writ of Certiorari: Court issues writ to lower court once it decides to hear a case

Court Procedures

• Once “cert” is granted:1. lawyers submit briefs (often 100s of pages)

2. Amicus curiae (friend of the court) briefs also submitted

3. Oral arguments:Each side has ½ hour, but justices can interrupt with questions

In Conference:

• Chief Justice– Speaks first, votes last

• Opinion writer assigned by CJ or ranking member of maj.

• 3 kinds of opinion: 1. Opinion of Court

(winner’s view) 2. Concurring opinion (other view from winner) 3. Dissenting Opinion (loser’s view)

Voting patterns• Warren Court: (1953-69) Liberal and activist

– Brown v. Board of Ed., Roe v. Wade, Miranda

• Rehnquist Court: (86-2005) divided– Bush v. Gore, Casey vs. Planned Parenthood

• Roberts Court: (2005-present)– 4 liberals (Sotomayor, Ginsberg, Breyer, Kagan) – 4 conservatives (Roberts, Alito, Thomas, Scalia)– 1 swing (Kennedy) – However, decision were unanimous(25%-50% of time)

Influences?Influences?

• Original intent of framers• Precedent—previous cases

(case law)• State/National law• law journals• public opinion

Confirmation Process

STEP 1: President Selects NomineeSTEP 2: Senate’s Judicial Committee must

conduct hearingsSTEP 3: voting (by committee, then entire

Senate)

Senatorial Courtesy – Senator of the President’s party may block confirmation of district judges

Confirmation Process

– Borking: when a nominee comes under unwelcome scrutiny regarding non judicial issues like sex, drugs use, etc.

3. Civil Liberties3. Civil Liberties(your protections from (your protections from

governmentgovernment))

Limits on Free Speech

Say what you want except….• Clear and Present Danger to our nation or

society (fire!, spying, etc.)• Libel/Slander: defamation (degrading) of

another’s character• Obscenity: what’s obscene?

– against community standards, appeals to prurient interest, no social value)

• Symbolic speech is ok (flag burning) but not all symbolic acts (like murder)

Free Speech at School

Courts have ruled that:• Students have less rights at school than

out • School acts like a parent • Students have more freedom of speech

out of class than in it• Political/religious speech most protected

Religion

Two parts of the first amendment:• Free-exercise clause: no law prohibiting

free exercise of religion • Establishment clause: no law establishing

an official religion• Gov’t can get involved with limited

religious activities if – secular (non religious) purpose – neither advances nor inhibits religion– doesn’t foster gov’t entanglement with

religions

OK NOT OK

•Santas at schools•Symbols from multiple religions•Church meetings at gov’t buildings

• Nativity scenes• Money to private,

religious schools• Teacher led

prayer

Religious Issues

Criminal Rights

• Exclusionary Rule: evidence gathered in violation of Const. cannot be used in trial

• Search warrants: order from judge w/ probable cause

• Miranda Rule: arrested people must be made aware of their rights– Very controversial---pits those for civil

liberties vs. those for strong justice

Learn from me kids….know the

law!e,

Captured terrorist, bad case of bedhead and backhair and world’s largest t-shirt collar

http://www.proprofs.com/quiz-

school/story.php?title=supreme-court-

cases_3

4. Civil Rights4. Civil Rightsour equal , government-protected, our equal , government-protected,

rightsrights

14th Amendment, Section 1

• All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the the equal protection of the laws. equal protection of the laws.

Civil Rights for African-AmericansCivil Rights for African-Americans

Legal Challenges:

• Best method since only judges had to change their minds, not Congress or society.

• NAACP: looked for cases where there was a strong claim that an African-American had been treated unfairly

TARGET: Segregated Schools : Segregated Schools

WHY? Public Education was:    

• children were a powerful symbol of larger struggle

• important gov’t service

Brown vs. Board of Education of Brown vs. Board of Education of Topeka, KansasTopeka, Kansas

• verdict of this class action suits ends segregation

• Court bases decision on sociology not law

• BIG QUESTION: How does US desegregate?

• ANSWER: busing—very controversial

Congress Finally Acts Congress Finally Acts

Causes• Protests of 1950s/60s leads to public opinion shift• Violent reactions of white segregationists publicized• JFK assassination• 1964 election landslide for Democrats

Effects: • Five Civil Rights Laws between 1957-1968 including

– 1964 Civil Rights Act• Outlawed discrimination in employment, voter registration, public

accommodations that engage in interstate commerce,

• “Solid South” shifts from Dems to Reps

Civil Rights Acts: No more barriers for A-A voting so…

African Americans vote in mass so…

Politicians have to court A-A so…

A-A voices are heard, so…

Drew High School, Mississippi, 1960s