The Judiciary
9
Judiciary Act of 1789 and
Creation of the Federal
Judicial System
 Three-tiered Court Structure
 Federal District Court
 Circuit Courts (Courts of Appeal)
 Supreme Court
 Rocky beginning for Supreme Court
9.1
The Marshall Court: Marbury v.
Madison and Judicial Review
 John Marshall’s tenure: 1801-1835
 Opinions from the Court, rather than individual justices
 McCulloch v. Maryland (1819)
 Broad interpretation of “necessary and proper” clause
 Marbury v. Madison (1803)
 Established Judicial Review
9.1
The Federal Court System
 District Courts
 Courts of Appeals
 The Supreme Court
9.2
District Courts
 Each state has at least one
 More populous states have more
 Jurisdiction
 Must involve federal or multi-state issue
 U.S. Attorney Generals
 Nominated by president; confirmed by Senate
9.2
The Courts of Appeals
 Eleven Courts of Appeals
 A twelfth restricted to federal regulatory commissions
and a thirteenth to patents
 Number of judges varies
 Depends on workload and complexity
 No original jurisdiction
 No new testimony
9.2
The Supreme Court
 Jurisdiction
 Reviews cases from U.S. Courts of Appeal and state
supreme courts
 Members
 Eight associate justices and one chief justice
 Precedent
 Rules are binding throughout the nation
 Stare decisis
9.2
The Supreme Court Today
 Deciding to Hear a Case
 How Does a Case Survive the Process?
 Hearing and Deciding the Case
9.4
FIGURE 9.2: How Many Cases Does the
Supreme Court Handle?
9.4
Deciding to Hear a Case
 Writs of Certiorari and the Rule of Four
 Cases must come from from U.S. Courts of appeals or
other courts of last resort
 Cases must involve a federal question
 Role of Clerks
9.4
FIGURE 9.3: How Does a Case Get to the
Supreme Court?
9.4
How Does a Case Survive the
Process?
 Federal Government
 The Solicitor General
 Conflicts Among the Courts of Appeal
 Different interpretations
 Interest Group Participation
 Important social issues
9.4
Hearing and Deciding the
Case
 Oral Arguments
 Questions asked and answered
 The Conference and the Vote
 Closed conferences twice a week
 Writing the Opinion
 Dissenting opinions
9.4
Judicial Philosophy, Original
Intent, and Ideology
 Judicial philosophy and ideology
 Judicial restraint
 Judicial activism
 Strict constructionism
 Original intent
9.5
Implementing Court Decisions
9.6
 Judicial implementation
 How judicial decisions are translated into public policies
 Implementing population
 Those responsible for carrying out the decision
 Consumer population
 Those directly affected by the decision
Discussion Questions
9
What role do the courts play in policy making?
Should public opinion be considered when the
judiciary makes policy decisions? What are
some of the advantages and disadvantages of
judicial activism?
Civil Liberties
4
The Incorporation Doctrine:
The Bill of Rights Made
Applicable to the States
4.1
 Fourteenth Amendment
 Bill of Rights applies to actions of states, not just federal
government
 Due process clause
 Applied to Bill of Rights
 Substantive due process
Selective Incorporation and
Fundamental Freedoms
 Fundamental freedoms protected under
selective incorporation
 Rights that states must protect:
 Freedom of press
 Freedom of speech
 Freedom of assembly
4.1
First Amendment Guarantees:
Freedom of Religion
 The Establishment Clause
 The Free Exercise Clause
4.2
The Establishment Clause
 Separation of church and state
 Lemon test
 Must have secular purpose
 Must not advance or prohibit a religion
 Must not entangle government with religion
4.2
Free Exercise Clause
4.2
 Free exercise clause not absolute
 Some religious rites considered illegal
 State must provide compelling reason to limit exercise of
religion
First Amendment Guarantees:
Freedoms of Speech, Press,
Assembly, and Petition
 Freedoms of Speech and the Press
 Protected Speech and Press
 Unprotected Speech and Press
 Freedoms of Assembly and Petition
4.3
Freedoms of Speech and the
Press
4.3
 Prior restraint
 Alien and Sedition Acts
 Censored criticisms of the government
 Slavery, Civil War
 speech again censored
 World War I and anti-government speech
Protected Speech and Press?
 Limiting prior restraint
 Symbolic speech
 Hate speech
4.3
Unprotected Speech and Press
 Unprotected speech
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Libel
Slander
Fighting words
Obscenity
4.3
Freedoms of Assembly and
Petition
4.3
 Freedom to assemble hinges on peaceful
conduct
 Subject to rules regarding free speech
 Right to petition government about issues
Second Amendment: Right to
Keep and Bear Arms
 Included to prevent Congress from
disarming state militias
 Dred Scott v. Sandford (1857)
 The right to bear and carry arms is a basic right of
citizenship
4.4
Rights of Criminal Defendants
4.5
 The Fourth Amendment and Searches and
Seizures
 The Fifth Amendment: Self-Incrimination
and Double Jeopardy
 The Fourth and Fifth Amendments: The
Exclusionary Rule
 The Sixth Amendment: Right to Counsel
 The Sixth Amendment: Jury Trials
 The Eighth Amendment: Cruel and Unusual
Punishment
The Fourth Amendment and
Searches and Seizures
 Protection from unreasonable searches
 Warrants
 Probable cause
 Drug tests
4.5
The Fifth Amendment: SelfIncrimination and Double
Jeopardy
 Protection against self-incrimination
 Miranda v. Arizona (1966)
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


Right to remain silent
Knowledge that what you say can be used against you
Right to an attorney present during questioning
Right to have an attorney provided if you cannot afford
one
 Double jeopardy
4.5
The Fourth and Fifth
Amendments and the
Exclusionary Rule
 Mapp v. Ohio (1961)
 Exceptions to the exclusionary rule
 “Good faith” mistakes
4.5
The Sixth Amendment and
Right to Counsel
 Sixth Amendment right to attorney
 Gideon v. Wainwright (1963)
 State must provide attorney for indigent
 Right to counsel begins with first appearance before a
judge
4.5
The Sixth Amendment and Jury
Trials
 Speedy and public trial by impartial jury
 Right to confront witnesses
 Jury of peers
 Racial peers
 Gender
4.5
The Eighth Amendment and
Cruel and Unusual Punishment
4.5
 Cruel and unusual punishment not defined
 Furman v. Georgia (1972)
 Protecting the wrongfully convicted
Right to Privacy
 Birth Control
 Abortion
 Homosexuality
4.6
Birth Control
 Right of women to obtain contraceptives
 Griswold v. Connecticut (1965)
4.6
Abortion
 Roe v. Wade
 Prohibits state bans on abortion
 Planned Parenthood v. Casey (1992)
 Restrictions cannot place “undue burden” on woman
4.6
Homosexuality
4.6
 Right to privacy extends to private sexual
behavior
 Lawrence v. Texas (2003)
Civil Rights
5
The First Civil Rights
Movement: Abolition and
Women’s Rights
 The American Anti-Slavery Society
 William Lloyd Garrison
 Arthur Tappan
 Seneca Falls Convention
 Elizabeth Cady Stanton
 Lucretia Mott
 Sojourner Truth: “Ain’t I a Woman?”
5.1
The Civil War and Its
Aftermath: Civil Rights Laws
and Constitutional
Amendments
 Thirteenth Amendment
 Black Codes
 Fourteenth Amendment
 Equal Protection Clause
 Fifteenth Amendment
 Excluded women
 National Woman Suffrage Association
5.1
Civil Rights, Congress, and
the Supreme Court
5.1
 Civil Rights Act of 1875
 Equal access to public accommodations
 Reconstruction (federal occupation of the
South) ended 1877
 Jim Crow laws
 Poll taxes
 Grandfather clause
Litigating for Equality
 Test Cases
 Challenged constitutionality of segregated law schools
 NAACP Legal Defense and Educational Fund
 Brown v. Board of Education (1954)
 Struck down “separate but equal”
5.2
The Civil Rights Movement





School Desegregation After Brown
A New Move for African American Rights
Formation of New Groups
The Civil Rights Act of 1964
Statutory Remedies for Race
Discrimination
5.3
School Desegregation After
Brown
 'With all deliberate speed'
 Brown not immediately implemented
 Cooper v. Aaron (1958)
5.3
A New Move for African
American Rights
 Rosa Parks
 Boycott of the Montgomery city bus system
 Segregated bus system ruled
unconstitutional
5.3
The Civil Rights Act of 1964
5.3
 March on Washington for Jobs and Freedom
(1963)
 Martin Luther King, Jr.'s, "I Have a Dream" speech
 President Lyndon B. Johnson's priority
 Longest filibuster in Senate history
Statutory Remedies for Race
Discrimination
 Education
 Department of Justice could bring cases against school
districts
 De jure discrimination versus de facto discrimination
 Employment
 "Business necessity" of practices that excluded African
Americans
5.3
Civil Rights and Affirmative
Action
 Affirmative action
 Equality of opportunity
 Regents of the University of California v.
Bakke (1978)
 Racial quotas unconstitutional but race can be
considered when accepting applicants
5.6
The Women's Rights
Movement
 The Equal Rights Amendment
 The Equal Protection Clause and
Constitutional Standards of Review
 Statutory Remedies for Sex
Discrimination
5.4
The Equal Rights Amendment
 Two key provisions
 Equality of rights under the
law shall not be denied or
abridged by the United States
or by any state on account of
sex.
 The Congress shall have the
power to enforce, by
appropriate legislation, the
provisions of this article.
 Roe v. Wade
 Eroded support for Equal
Rights Amendment
5.4
The Equal Protection Clause
and Constitutional Standards
of Review
 Levels of scrutiny
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
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
Suspect classifications
Strict scrutiny
Intermediate scrutiny
Rational basis
5.4
TABLE 5.1 What are the standards of
review fashioned by the Court under the
Equal Protection Clause?
5.4
Statutory Remedies for Sex
Discrimination
 Equal Pay Act of 1963
 Requires equal pay for equal work
 Title VII of Civil Rights Act of 1964
 Prohibits gender discrimination by employers
 Title IX of the Education Amendments of 1972
 Bars educational institutions that receive federal funds from
discriminating against female students
5.4
Other Groups Mobilize for
Rights
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



Hispanic Americans
American Indians
Asian and Pacific Island Americans
Gays and Lesbians
Americans with Disabilities
5.5
Hispanic Americans
 Hernandez v. Texas (1954)
 Jury should include other Mexican Americans
 César Chávez
 United Farm Workers Union
 Mexican American Legal Defense and
Educational Fund (MALDEF)
5.5
American Indians
 Northwest Ordinance of 1787
 specified that "good faith should always be observed toward the
Indians,"
 Dawes Act (1887)
 forced assimilation by requiring, among other things, that
children be sent away to boarding school.
 Native American Rights Fund (1970)
 Bury My Heart at Wounded Knee
 mobilize public support against oppression of American Indians
the way Uncle Tom's Cabin had for slaves
5.5
Asian and Pacific Island
Americans
 Pan-Asian identity
 Difficult to forge
 Free migration to support railroad
 Chinese Exclusion Act
 World War II
 Korematsu v. U.S.
 Civil Liberties Act
5.5
Gays and Lesbians
 Don't Ask, Don't Tell
 Revised prohibition of gays in military
 Ended in 2010
 Lawrence v. Texas (2003)
 Same-sex marriage
 Obergefell v Hodges
5.5
Americans with Disabilities
 Disabled veterans
 Returning from Korea and Vietnam
 Americans with Disabilities Act
 Legal protections against discrimination
 American Association of People with
Disabilities
 Advocacy group
5.5