US Government Final Exam

"Friend of the Court” brief is a document submitted by parties interested in a certain case or issue in an attempt to provide the court with information that may be used to decide the case

the authority of a court to review and overturn a lower court’s decision in a case.

a document detailing the legal argument for the desired outcome in a court case

the leading justice on the Supreme Court, who provides both organizational and intellectual leadership

Also know as courts of appeals; the middle level in the federal court structure

The practice of traveling around the circuits by early Supreme Court justices and district court judges to hear appeals cases

A conflict between private individuals in which the plaintiff alleges that some action or inaction by the defendant has resulted in harm to him or her

Laws created by legislatures to regulate the behavior of individuals and organizations

A court made up of a group of judges who must evaluate a case together and decide on the outcome; significant compromise and negotiation take place as members try to build a majority coalition

Law made by judges who decide cases and articulate legal principles in their opinions; based upon the British system

A judicial opinion agreeing with how the majority decides the case but disagreeing with at least some of the legal interpretations or conclusions reached by the majority.

the body of law that comes out of the courts in cases involving the interpretation of the Constitution

The intermediate appellate courts in the federal system that review previous decisions made by courts in the federal or state judicial system

A case brought by the government or a prosecutor against a defendant, alleging that he or she has engaged in conduct resulting in injury to another person, and that this injury is so significant that it harms not only the individual but also the larger society.

A person who is defending him or herself against a plaintiff’s accusation.

Compiled by the chief justice, the list of cases on review that he thinks may be appropriate for the Court to hear.

A judicial opinion disagreeing both with the majority’s disposition of a case and with their legal interpretations and conclusions.

The circumstance in which the parties in a legal case are from different states or the case involves a US citizen and a foreign government.

A two-part judicial system such as that of the United States, which has both federal and state courts

A question of law based on interpretation of the US Constitution, federal laws, or treaties.

An approach to judicial decision making whereby judges apply their authority to bring about specific social goals.

An approach to judicial decision making whereby judges defer to the democratically elected legislative and executive branches of government.

The branch of government comprising the state and federal courts and the judges who preside over them.

The power of a court to hear a case and to resolve it, given to a court by either a constitution or a statute.

Any of the nine judges who sit on the supreme Court

The process by which cases are bought and decided in the American legal system

The stage when appeals court judges or Supreme Court justices meet with the petitioner and the respondent to ask questions about the legal interpretations or information contained in their briefs

The power of a court to hear a case first, before other courts have decided it

Also called appellant; the party seeking to have a lower court’s decision reviewed by the supreme court under the court’s discretionary jurisdiction.

the party bringing the case to court

A description written by Supreme Court clerks of the facts of a case filed with the Court, the pertinent legal arguments, and a recommendation as to whether the case should be taken

Legal authority established by earlier cases

Also called appellee; the party opposing the hearing of a case on the supreme court’s discretionary docket.

The Supreme Court practice by which the Court will agree to hear a case that comes to it under its discretionary jurisdiction if four or more justices vote to hear it

A custom that allows senators from the president’s political party to veto the president’s choice of federal district court judge in the senator’s state

From the Latin “let the decision stand” the principle that binds judges to rely upon the holdings of past judges in deciding cases.

A law enacted by Congress and the state legislatures to deal with particular issues or problems, sometimes more detailed and comprehensive than the common law

The attempt to ensure that the Supreme Court is representative of major demographic groups, such as women, African Americans, Jews, and Catholics

A wrongful act involving a personal injury or harm to one’s property or reputation.

The court in which a case is first heard and that determines the facts of a case.

A compilation of all the laws passed by the US Congress

High court with a limited original jurisdiction whose decisions may not be appealed; it serves as the court of last resort in the US Judiciary.

Latin for “a request to make certain”; this is an order to a lower court to produce a certified record of a case so that the appellate court can determine whether any errors occurred during trial that review of the case.

Congress created lower courts, creating the federal district courts.

“John Marshall made it abundantly clear that the meaning of the Constitution was rarely self-contained and obvious and that those who interpreted it - a role he staked out for the federal courts but one that did not reach its full flowering until the mid-twentieth century - made a difference.”

Created the court of appeals

most significant in the creation of common law was the magna carta of 1215, the first document to list the rights and protections granted to individuals in England. The magna carta is one of the core documents in the evolution of constitutional law

constitutional law, statutes (code law), judicial decisions, executive orders, administrative law

A standard established in the 1925 case Gitlow v New York, whereby any speech that has the tendency to incite crime or disturb the public peace can be silenced. This highly restrictive test required only that the government demonstrate that some speech may at some time help to bring about harm. The treat did not need to be immediate or even direct. The test sacrificed the freedoms of speech and press to concerns about public safety and protection of the existing order. Only lasted until the late 1930's

a standard established in the 1919 SC case Schneck v United States whereby the gov may silence speech or expression when there is a clean and present danger that this speech will bring about some harm that the gov has the power to prevent

the 1951 case Dennis v US  whereby the gov could suppress speech to avoid grave danger even if the probability of the dangerous result was relatively remote; replaced by the imminent lawless action (incitement) test in 1969

Advertising statements that describe products

Safeguards for thos accused of crime, these rights constrain government conduct in investigating crimes, trying cases, and punishing offenders

first amendment clause that bars the gov from passing any law “respecting an establishment of religion”; often interpreted as a seperation of church and state but increasingly questioned

The criminal procedural rule stating that evidence obtained illegally cannot be used in a trial

• speech that is likely to bring about public disorder or chaos; sc has held that this speech may be banned in public places to ensure the preservation of public order
• 1942 - Walter Chaplinsky was convicted of violating a New Hampshire statute that prohibited the use of offensive, insulting language towards persons in public places after he made several inflammatory comments to a city official. The court, in upholding the statute as constitutional explained the limits of free speech: "These include the lewd and obscene, the profane, the libelous, and insulting or fighting words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace"

the 1st amendment clause prohibiting the gov from enacting laws prohibiting an individuals practice of his or her religion; often in contention with the establishment clause

An ancient right that protects an individual from being held without the right to be heard in a court of law

constitutionally established guarantees that protect citizens, opinions, and property against arbitrary government interference

A theory of the creation of the earth and humankind that is based on a literal interpretation of the biblical story of Genesis

To be tried again for the same crime that one has been cleared of in court; barred by the fifth amendment

The legal safeguards that prevent the government from arbitrarily depriving citizens of life, liberty, or property; guaranteed by the fifth and fourteenth amendments

(incitement test) A legal standard established in the 1969 Brandenburg v. Ohio case whereby speech is restricted only if it goes beyond mere advocacy, or words, to create a high likelihood of imminent disorder or lawlessness.

The theory that the apparent design in the universe and in living things is the product of an intelligent cause rather that of an undirected process such as natural selection: its primary proponents believe that the designer is God and seek to redefine science to accept supernatural explanations

• A three part test established by the supreme court in the 1971 case Lemon v. Kurtzman to determine whether government aid to parochial  schools is constitutional; the test is also applied to other cases involving the establishment clause. The court struck down a state program that used cigarette taxes to reimburse parochial schools for the costs of teachers salaries and textbooks. The court found that subsidizing parochial schools furthered a process of religious teaching and that the "continuing state surveillance" that would be necessary to enforce the specific provisions of the laws would inevitably entangle the state in religious affairs. 
• 1. Does the state program have a secular, as opposed to a religious purpose?
• 2. Does it have as its principal effect the advancement of religion?
• 3. Does the program create an excessive entanglement between church and state?

False written statements about someone else that harms their reputation. In order to qualify as libel or slander, the defamatory statement must be made publicly and with fault, meaning that reporters, for example, must undertake reasonable efforts to verify allegations. The statement must extend beyond mere name-calling or insults that cannot be proven true or false. Those who take a legal action on the grounds that they are victims of libel or slander, such as government officials, celebrities, and people involved with specific public controversies, are required to prove that the defendant acted with malice - with knowledge that the statement was false or recklessly disregarded the truth or falsity of the statement.

A concept at the core of the freedoms of expression and press, based on the belief that true and free political discourse depends upon a free and unrestrained discussion of ideas

A criminal procedural rule, established in the 1966 case Miranda v. Arizona, requiring police to inform criminal suspects, on their arrest, of their legal rights, such as the right to remain silent and the right to counsel; these warning must be read to suspects before interrogation

• Indecent or offensive speech or expression.
• 1973 - The supreme Court developed a three part test. The court ruled that a book, film, or other form of expression is legally obscene if:
• 1. The average person applying contemporary standards finds that the work taken as a whole appeals to the prurient interest - that is, tends to excite unwholesome sexual desires
• 2. The work depicts or describes, in a patently offensive way, a form of sexual conduct specifically prohibited by an anti-obscenity law
• 3. the work taken as a whole lacks serious literary, artistic, political, or scientific value

A form of censorship by the government whereby it blocks the publication of news stories viewed as libelous or harmful

The right of an individual to be left alone and to make decisions freely, without the interference of others

The process by which, over time, the Supreme Court applied those freedoms that served some fundamental principle of liberty or justice to the states, thus rejecting total incorporation

False verbal statements about others that harm their reputation. In order to qualify as libel or slander, the defamatory statement must be made publicly and with fault, meaning that reporters, for example, must undertake reasonable efforts to verify allegations. The statement must extend beyond mere name-calling or insults that cannot be proven true or false. Those who take a legal action on the grounds that they are victims of libel or slander, such as government officials, celebrities, and people involved with specific public controversies, are required to prove that the defendant acted with malice - with knowledge that the statement was false or recklessly disregarded the truth or falsity of the statement.

Nonverbal "speech" in the form of an action such as picketing, flag burning, or wearing an armband to signify a protest

Regulations regarding when, where, or how expression may occur; must be content neutral

The theory that the Fourteenth amendment's due process clause requires the states to uphold all freedoms in the bill of rights; rejected by the Supreme Court in favor of selective incorporation

Congress cannot make any law establishing a religion or abridging the freedom of religious exercise, speech, assembly, or petition

The executive branch cannot infringe on the right of the people to bear arms(2), cannot house soldiers in citizens' houses(3), and cannot search for or seize evidence without a legal warrant from a court of law(4)

The courts cannot hold trials for serious offenses without providing for a grand jury(5), a trial jury(6), a fair trial(7), and legal counsel(7). The accused also have the right to hear the charged against them (7), to confront hostile witnesses(7), and to refrain from giving testimony against themselves(5); and they cannot be tried more than once for the same crime(5). In addition neither bail nor punishment can be excessive (8), and no property can be taken from private citizens without "just compensation"(5)

Any rights not listed specifically in the Constitution as held by the national government are reserved to the states or to the people(10), and the enumeration of certain rights in the Constitution should not be interpreted to mean that those are the only rights the people have(9)

The bill of rights was assumed to apply to the national government, not the states, through most of early US history. This assumption is illustrated by the case of Barron v. Baltimore in which a wharf own named Barron sued the city of Baltimore. Barron claimed that the city had violated the "takings clause" of the fifth amendment, which bars the taking of private property for public use without just compensation. Barron argued that by paving its streets; the resulting buildup of silt and gravel in the harbor made his wharf unusable. The case centered on the idea that the fifth amendment protects individuals from actions taken by both the national and state or local governments. The Supreme Court disagreed, ruling that the fifth amendment was restricted to suits brought against the federal government.

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 or life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

1925- The bad tendency test, was established in the case of Benjamin Gitlow who was convicted of violating a New York state criminal anarchy law by publishing pamphlets calling for a revolutionary mass action to create a socialist government. The court ruled that any speech that had the tendency to incite crime or disrupt the public peace could be silenced. The court held that freedom of speech is "among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth amendment from impairment by the states"

1931 the court added freedom of press. The supreme court established prior restraint in 1931 in the landmark case of Near v Minnesota. After editor Jay Near wrote a story in the Saturday Press alleging that Jew were responsible for corruption, bribery, and prostitution in Minneapolis, a state judge barred all future sales of the newspaper. The court overturned the state judges ruling finding that the sole purpose of the order was to suppress speech. Because freedom of the press has strong historical foundations, the court concluded censorship is clearly prohibited

1937 Freedom of assembly and petition

1937 the court laid out a formula for defining fundamental rights that later courts have used time and time again in incorporation cases, as well as in due process cases more generally. The justices found that fundamental rights were rooted in the traditions and conscience of the American people. Moreover, if these rights were eliminated, the justices argued, neither liberty nor justice could exist. Judges in subsequent cases have used this formula to determine which bill of rights protections should be applied to the states. In case after case the justices have considered whether such a right is fundamental - that is, rooted in the American tradition and conscience and essential for liberty and justice.

1940 freedom to practice religion - first amendment

1947 Freedom from government established religion

1949 no unreasonable searches and seizures

1961 Exclusionary rule - In this case, the court overturned an Ohio court's conviction of Dollree Mapp for the possession of obscene materials. Police had found pornographic books in Mapp's apartment after searching it without a warrant and despite the defendants refusal to let them in.

1897 Right to just compensation (for property taken by the government)

1964 No compulsory self-incrimination

1969 No double Jeopardy

1963 Right to counsel in criminal cases - The justices interpreted the right to counsel to mean that the government must provide lawyers to individuals who are too poor to hire their own. The justices adopted this standard because they came to believe that the community's views of fundamental fairness dictated this result.

1965 Right to confront witnesses

1966 Right to an impartial jury

1967 Right to a speedy trial

1968 right to a jury in criminal trials

1962 No cruel and unusual punishments

During WWI the court upheld the conviction of socialist Charles Schneck for distributing a pamphlet to recently drafted men urging them to resist the draft. For the first time the court created through its ruling a test to evaluate such government actions, called the clear and present danger test. Under this standard the government may silence speech or expression only when there is a clear and present danger that this speech will bring about some harm that the government has the power to prevent. In the Schneck case, the court noted that the circumstances of war permit greater restrictions on the freedom of speech than would be allowable during peacetime. The justices ruled that Schneck's actions could endanger the nation's ability to carry out the draft and prosecute the war.

1969 The court signaled that it would give more weight to the first amendment claims and less to government concerns about security and order. In this case, the court considered the convictions of leaders of an Ohio Ku Klux Klan group who were arrested after they made a speech at a televised rally, during which they uttered racist and anti-Semitic comments and brandished guns and rifles. Local officials charged them with violating a state law that banned speech that disturbed the public peace and threatened armed overthrow. In overturning the convictions, the Court reverted to a strict reading of the clear and present danger test. The justices held that government officials had to demonstrate that the speech they sought to silence went beyond mere advocacy, or words, and that it created the risk of imminent disorder or lawlessness.

The justices considered whether the government could punish several Vietnam War protesters for burning their draft cards in violations of the Selective Service Act, which made it a crime to "destroy or mutilate" these cards. The court balanced the free-expression guarantee against the government's need to prevent the destruction of the cards. Because the cards were critical to the nation's ability to raise an army, the Court ruled that the government had a compelling interest in preventing their destruction

In this case, the justices ruled that the political expression in the form of students wearing black armbands to school to protest the Vietnam war was protected. The court ruled that the symbolic speech engaged in by student protestors did not disrupt normal school activities and thus warranted greater protection.

1989 - At issue was a man's conviction under state law for burning the American flag at the Republican National Convention in 1984 to emphasize his disagreement with the policies of the administration of President Ronald Reagan. The Supreme Court overturned the man's conviction, finding that the flag burning was political speech worthy of protection under the first amendment. After the Johnson decision, Congress quickly passed the Flag Protection Act in an attempt to reverse the court's ruling. Subsequently however in the case of US v. Eichman (1990) the court struck down the new law by the same 5-4 majority as in the Johnson ruling.

1971 - The court rejected the governments attempt to prevent publication of documents that detailed the history of the United States involvement in Vietnam. In this case, also known as the Pentagon Papers case, the government argued that censorship was necessary to prevent "irreparable injury" to national security. But the court dismissed this argument, asserting that full disclosure was in the interest of all americans and athat publication of the documents could contribute to the ongoing debate about the US role in Vietnam War. In their ruling the justices recognized that some materials are clearly necessary for full and fair discussion of issues facing the nation while other are far less important to political discourse.

1962  barred formalized prayed in the school, finding such prayer has purely religious purpose and that prayer is intended to advance religious, as opposed to secular ideas.

1990- The court allowed the state of Oregon to deny unemployment benefits to two substance abuse counselors who were fired from their jobs after using peyote as part of their religious practice. Oregon refused to provide benefits because the two men had been fired for engaging in an illegal activity. The court concluded that there was no free-exercise challenge, because Oregon had good reason for denying benefits to lawbreakers who had been fired from their jobs. The justices concluded that the state was simply applying a neutral and generally applicable law to the men as opposed to singling them out for bad treatment.

1965 - The issue in this case was whether the state of Connecticut had the power to prohibit married couples from using birth control. In their decision, the justices concluded that the state law violated the privacy right of married couples seeking access to birth control, and they struck down the law. The court argued that the right to privacy was inherent in many of the other constitutional guarantees, most importantly the first amendment freedom of association, the third amendment right to be free from quartering soldiers, the fourth amendment right to be free from unreasonable searches and seizures, the fifth amendment protection against self-incrimination, and the ninth amendment assurance of rights not explicitly listed in the bill of rights. In it's ruling the court asserted that the right to privacy existed quite apart from the law. It was implicit in the bill of rights and fundamental to the american system of law and justice.

1973 - In roe and the many abortion cases the court has heard since, the justices have tried to establish whether a woman's right to abortion takes precedence over any interests the state may have in either the woman's health or the fetus's life. Over time, the court has adopted a compromise position by rejecting the view that the right to abortion is absolute and by attempting to determine when states can regulate, or even prohibit, access to abortion. In 1992 the court established the "undue burden" test, which asks whether a state abortion law places " a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability"

2002 - For many years the court allowed states to criminalize homosexual activity, finding that the right to engage in consensual sexual activity did not extend to same sex partners. The court changed course by ruling that the right to engage in intimate sexual activity was protected as a liberty right, especially when the activity occurred inside one's home, and that states could not criminalize this activity. States are still free to prohibit a range of sexual activities, including prostitution, child sexual abuse, and sex in public places,

1972 - The court suspended the use of the death penalty. Justices Brennan and Marshall believed the death penalty to be "incompatible with evolving standards of decency in contemporary society" The dissenting justices argued in turn that capital punishment had always ben regarded as appropriate under the anglo-american legal tradition for serious crimes and that the constitution implicitly authorized death penalty laws because of the fourteenth amendments reference to taking of life.