Con Law Mid Term
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3 Routes for a case to get to supreme Court?
- 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)
- Not Justiciable:
- -Advisory opinions
- -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
- 3 interpretations
- -separationist-solid wall
- -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.
- pre-Lemon test:
- 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
- Lemon test
- -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
- -Expressive association
- -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)
- -no mandate to consider work as whole
- -no mandate to consider social value of work
- Roth v. new york
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