Original Jurisdiction- Case is being heard for very first time (also some kinds of cases that have appellate jurisdiction or the right to an appeal)
Certification- federal judges can ask SCOTUS questions looking for clarification.
Writ of ceritorari (to become informed)(cert)- Parties may petition to get case heard (most common way cases get to Court)
Cert Conference and strategies?
Justices vote to grant or deny cert
Need 4 Justices to vote yes to take case (Justices can vote to join 3)
Defensive denials- voting no because you do not believe you have the votes in your favor even if you think the case should be decided by Court.
Aggressive Grants- granting cert even if you do not believe the case belongs before Court because you believe your side will win
Article III of the Constitution?
Establishes the Supreme Court and other Federal courts as Congress sees fit.
Seeks to establish independent judiciary
-life tenure (can be impeached)
-compensation clause (pay can never be cut)
Section 2 of Art III describes the workings of lower courts that did not yet exist.
Judiciary Act of 1789?
Establishes framework of federal judiciary first laid out in sec 2 of Art III a pyramid with the S.C. at the top the circuit courts in the middle acting as the first line of appeals and the district courts at the bottom.
It reiterates the S.C. original jurisdiction
empowers them to issue writ of Mandamus
Expands S.C. jurisdiction to hear cases from state courts that involve federal issues.
S.C. reviews laws and acts to determine if they are constitutional.
Not mentioned in Constitution
First tested in Marbury v Madison
Constraints on Judicial Power?
Jurisdiction- does the court have legal authority
Justiciability- a case is appropriate for judicial resolution (cases and controversies)
-collusion (both sides want same result)
-Standing to Sue
Incorporation of the Bill of Rights?
Incorporation is process by which Bill of Rights is made applicable to state gov
Barron v Baltimore in 1833- decides Bill of Rights only applies to Federal gov
Incorporation begins with 14th Amendment (1868)and the Due process clause.
Selective rights have been advanced one right at a time from 1879- late 60's basically incorporating the entire bill of rights.
First interpretation of free exercise clause?
Belief/ action Dichotomy first established in Reynolds v United States 1879 (Mormons and polygamy)
Cantwell v Conneticut 1940 (certification laws for solicitation aimed at Jehovahs witness) Court upheld belief/action dichotomy and added Valid secular policy test.
Warren court adds least restrictive test
Sherbert- Yoder test
New interpretation of Free exercise Clause gives more weight to religious freedom.
Least restrictive manner and it matters how applied not just written.
Sherbert v Verner- Court says if there is a compelling state interest the gov can restrict religous freedoms but must do it in least restrictive way.
Wisconsin v Yoder- court says distinction between how law is written and how law is applied matters.
The Smith test
Human Resources of Oregon v. Smith 1990- defendants used peyote for religion
Court has tilted right Scalia's opinion rejects Sherbert-Yoder test gives gov the right to prohibit religious action.
basis of Establishment of religion and 3 interpretations?
1st amendment establishment clause
-accomodationist1- "favoring wall" only prohibited from favoring one religion over another.
accomodationist2- "establishment wall" only thing gov cant do is establish a state or national religion.
Establishment precedent before Lemon?
Bradfield v Roberts 1899- S.C. allows for federal funds to be spent at a religious hospital on care for indigent.
Everson v Board of Ed 1947- S.C. rules that it is ok to pay for transportation to private schools. Gov doesn't have to be an adversary of religion.
-S.C. uses this case to incorporate the establishment clause.
must have secular purpose and the effect must neither inhibit or advance religion
The Lemon test
Lemon v. Kurtzman 1971- lemon sued state super of schools Kurtzman to declare unconstitutional law that allowed Kurtzman to purchase secular educational services for nonpublic schools.
Early v. Dicenso- challenged R.I law taht supplemented teacher pay at nonpublic shools
-legitimate secular purpose
-neither advance or inhibit religion
-no excessive entanglment between religion and gov
Zellman v. Harris 2002- adds the distinction between government giving money to a religious organization and giving it to individuals who give it to a religious organization.
Right to Privacy?
Zellman v. Harris 2002- creates the distinction between government giving money to a religious organization and giving it to individuals who give it to a religious organization.
Right to Privacy in reproductive matters?
Griswold v. Conneticut 1965- created a constitutional right to privacy and deemed it fundamental.
Opinion asserts penumbras formed by emanations from 1,3,4,5,and 9th amendments.
in other words clauses in those amendments create zones or privacy that are untouchable by gov
Roe v. Wade 1973- establishes that abortion is not absolute,
"person" = post-natal,
establishes state interest in life of potential human life
creates trimester framework:
-1st doctors decision
-2nd state can protect life of mother
-3rd state can protect potential human life after medical viability.
Right to privacy rolled back in reproductive rights?
Planned Parenthood v. Casey 1992- gets rid of trimester plan
O'Connor pushes undue burden test before viability
if a law presents no undue burden its good
if a law presents an undue burden must use strict scrutiny to determine its constitutionality.
After viability a states compelling interest in potential life kicks in.
Freedom of speech, assembly and association as it pertains to gay sex?
Bowers v. Hardwick 1986- says gay sodomy not protected privacy.
Lawerence v. Texas 2003- Gay men arrested for sodomy. Court uses due process clause of 14th amendment plus constitutional concept of privacy to overturn verdict.
Could have used the equal protection clause of 14th amendment might have been stronger argument.
Freedom of speech as it pertains to conduct?
Texas v. Johnson 1989- Johnson burns american flag after protest march Court finds.
Conduct can be speech if "imbued by communication"
-is there a message
-is it likely it will be understood.
Legal standards for governing free speech?
Clear and present danger test- are the words used in circumstances and are meant to create a danger
Bad tendency test- do words have tendency to bring about something evil
Preferred freedoms- those freedoms that are specifically mentioned in constitution are afforded more weight and government must be much more careful in trying to regulate them.
Absolutism- 1st amendment rights are absolute (never used)
Ad Hoc balancing- case by case basis gov interest and individuals rights are weighed
Clear and probable danger- whether the gravity of the evil discounted by improbability justifies action by gov.
Fighting words and free speech?
Chaplinsky v New Hampshire 1942- Jehovahs witness is selling literature some of the crowd take offense attack him police arrive and handcuff him he curses at police and is arrested for using offensive words.
Court says that words that are likely to cause a fight can be forbidden.
Restrictions on free speech?
Criminal speech- giving military secrets
less protected speech- obscenity and libel
Time, place and manner restrictions- must be narrowly constructed, not unconstitutionally vague, and must be content neutral.
Boy Scouts of America v. Dale 2000- Court ruled that groups may discriminate in terms of membership if
-membership affects advocacy of beliefs
-are beliefs sincere
Near v. Minnesota 1931- state prohibits near from publishing. court says that they can not do that but that there are times when prior restraint are ok.
NY times v. U.S. 1971- Times gets portion of pentagon papers, Nixon administration seeks injunction. Court gave per curiam that said the gov could not have injunction.
Hicklin test- British standard for obscenity
-evaluated from perspective of anyone who might see it (children)