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The Judicial Branch
& Cases
Court Stripping
Exceptions clause: Art 3.2-- "In all other Cases
before mentioned, the supreme Court shall have
appellate Jurisdiction, both as to Law and Fact,
with such Exceptions, and under such
Regulations as the Congress shall make."
 Ex parte McCardle (1868)
 Constitutional context: Congress can bar
particular paths, not whole classes of cases
 But the Court can: Roberts court + “standing”
Activism / “Legislating from the
bench”

Federalist 81: “The arguments, or rather suggestions,
upon which this charge is founded, are to this effect:
"The authority of the proposed Supreme Court of the
United States, which is to be a separate and
independent body, will be superior to that of the
legislature. The power of construing the laws according
to the spirit of the Constitution, will enable that court to
mould them into whatever shape it may think proper;
especially as its decisions will not be in any manner
subject to the revision or correction of the legislative
body. This is as unprecedented as it is dangerous. …’”

Fed 81: “It may in the last place be observed
that the supposed danger of judiciary
encroachments on the legislative authority,
which has been upon many occasions reiterated,
is in reality a phantom. Particular
misconstructions and contraventions of the will
of the legislature may now and then happen;
but they can never be so extensive as to amount
to an inconvenience, or in any sensible degree
to affect the order of the political system. This
may be inferred with certainty, from the general
nature of the judicial power, from the objects to
which it relates, from the manner in which it is
exercised, from its comparative weakness, and
from its total incapacity to support its
usurpations by force.”
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Fed 78 [AH]: “The judiciary, on the
contrary, has no influence over either the
sword or the purse; no direction either of
the strength or of the wealth of the
society; and can take no active resolution
whatever. It may truly be said to have
neither FORCE nor WILL, but merely
judgment; and must ultimately depend
upon the aid of the executive arm even for
the efficacy of its judgments.”
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Jackson + Indians, Lincoln + habeas, Orval
Faubus + Brown
Types of Federal Courts
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Constitutional Courts
94 District courts (trials)
12 US Courts of Appeals (appeals)
US Court of Appeals for the Federal Circuit
US Court of International Trade
Special Courts
Courts of: Federal claims, territorial courts,
District of Columbia, tax, appeals for the armed
forces, appeals for veterans claims
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District Court Circuit Court of Appeals US
Supreme Court (w/ writ of certiorari; Rule of 4
(of 9))
State courts State Supreme Court US
Supreme Court
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Federalism
Supreme Court: Primarily appellate jurisdiction
Original jurisdiction: 1) a State is a party, 2)
ambassadors, other public ministers
Exclusive (only) and concurrent (shared)
jurisdiction
14th Amendment and Incorporation
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The States have a history of violating minority rights, so
we can’t let the States be in charge of the people’s
rights, but the Supreme Court also has a history of
violating minority rights [Scott v. Sandford, Plessy v.
Ferguson, Korematsu, New London v. Kelo (2005,
eminent domain)] so we can’t let them be in charge, and
don’t get me started on Congress and the President.
Incorporation destroys federalism: Bill of Rights intended
to limit intrusion of Federal Gov’t into powers of States;
now Feds dominant w/S.C. all-powerful

Selective (not automatic) vs. Total (all amendments/clauses +
Federal laws)
US Supreme Court
Cases
Civil Liberties
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Civil liberties: protections against
government
Civil Rights: positive acts of government to
make constitutional guarantees a reality
for all people (government protections
against other citizens)
1st Amendment: Religion
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Free exercise clause: freedom of religion
(w/o violating laws, public morals, harm
health, welfare, safety)
Establishment clause: freedom from
religion (wall between church and state;
lots of ways through and around wall:
military chaplains, tax-free status, Pledge
+ currency, etc.)
Free Exercise

West Virginia Board of Education v. Barnette
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Board of Education of the Westside Community
Schools v. Mergens (1990): Christian club had to
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(1943): no compulsory flag-salute (Jehovah’s
Witnesses)
be allowed on campus if other clubs were
allowed
Gonzales v. O Centro (2006): Brazilian church
can take drugs
Pledge of Allegiance case kicked for custody
issues not Constitutional ones (standing)
Establishment
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Engel v. Vitale (1962): no mandatory,
nonsectarian prayer in school
Lee v. Wiesman (1992): no prayer at graduation
Santa Fe Independent School District v. Doe
(2000): no prayer at high school football games
Epperson v. Arkansas (1968): no refusal to teach
evolution
Edwards v. Aguillard (1987): no teaching
“creation science”
Lemon Test
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Lemon v. Kurtzman (1971): 1) purpose of
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Office of Faith Based Initiatives?
gov’t aid to religion must be clearly
secular (buses to parochial school for
student safety); 2) primary effect must
neither advance nor inhibit religion; 3)
must avoid “excessive entanglement of
government with religion”
1st Amendment: Speech and Press
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US v. O’Brien (1968): burning draft card banned
Earl Warren: "[W]e think it clear that a
government regulation is sufficiently justified if it
is within the constitutional power of the
Government; if it furthers an important or
substantial governmental interest; if the
governmental interest is unrelated to the
suppression of free expression; and if the
incidential restriction on alleged First
Amendment freedoms is not greater than is
essential to the furtherance of that interest."
Prior restraint: can’t curb ideas before they
are expressed (w/o huge burden)
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Schenck v. US (1919): “clear and present
danger” (of handing out anti-WWI pamphlets to
draftees)
Gitlow v. New York (1923): incorporation;
“dangerous tendency” class of speech can be
banned
Tinker v. Des Moines SD (1969): political speech
on campus protected if not disruptive of
educational purpose of school (key to all your
rights on campus: schools are different)
New York Times v. US (1971): merely
embarrassing info can’t be blocked by gov’t
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Buckley v. Valeo (1975): money is political
speech if “issue” not “candidate”—magic words
Texas v. Johnson (1989): flag burning is fine
 Obscenity and Press
Roth v. US (1957) and Miller v. California (1973):
obscene if 1) applying contemporary local
standards would find it “prurient”; 2) work
depicts acts that are illegal; 3) work lacks
“serious literary, artistic, political, or scientific
value”
Hazelwood SD v. Kuhlmeier (1988): censorship
of school papers fine
Shield Laws
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Press privilege?
Branzburg v. Hayes (1972): reporters must
answer Qs of law enforcement
Judith Miller, Scooter Libby, Karl Rove,
Valerie Plame
Association
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Boy Scouts of America v. Dale (2000): ok
to discriminate against gays
Rumsfeld v. Forum for Academic and
Institutional Rights (FAIR) (2006): colleges
can’t ban military recruiters (“don’t ask,
don’t tell” is discriminatory) w/o losing all
federal funds
2nd Amendment
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U.S. v. Miller (1939): weapons can be regulated
if don’t serve “well regulated militia”
2nd has not been incorporated (States do what
they want (for now))
U.S. v. Emerson (5th Circuit Court of Appeals:
2001): asserts individual right to bear arms; no
SC ruling yet
D.C. handgun ban District of Columbia v.
Heller (Oral arguments: March 18th, 2008)
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But is D.C. a State?
Due Process: 5th and 14th
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Procedural: how the policies are
enforced gov’t must follow the rules
Substantive: what the policies are the
rules must be fair
Security of Home and Person
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4th Amendment
Probable Cause for warrant to search
(unless “exigent circumstances” or “plain
view”)
Exclusionary Rule: Weeks v. US (1914)
Incorporated: Mapp v. Ohio (1961): “fruit
of the poisoned tree”
Nix v. Williams (1984): “inevitable
discovery”
But not at school
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New Jersey v. TLO (1985): reasonable suspicion
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Vernonia School District v. Acton (1995) + Bd of
Ed, Pottawatomie County v. Earls (2002):
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< probable cause
random drug testing
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But during war
Ex Parte Milligan (1866): habeas corpus
Hamdi v. Rumsfeld (2004): “enemy combatants”
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Unless you’re not white
Korematsu v. United States (1944)
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Wiretapping
Katz v. US (1967): overturns Olmstead 4th
protects “persons, not just places”
Privacy?
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Sheppard v. Maxwell (1966): press freedom vs. rights of
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Griswold v. Connecticut (1965): right to contraceptives
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accused
(14th)
Roe v. Wade (1973)
Planned Parenthood of Southeastern Pennsylvania v.
Casey (1992): “reasonable limits” w/o imposing “undue
burden”
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Should a married woman have to inform her husband? No (but
minors must notify parents)
Gonzales v. Carhart (2007): Partial-birth abortion and Anthony
Kennedy: "While we find no reliable data to measure the
phenomenon, it seems unexceptionable to conclude some women
come to regret their choice to abort the infant life they once
created and sustained." That regret might later cause "severe
depression and loss of esteem."
Keep your mouth shut
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Miranda v. Arizona (1966): 1) right to remain
silent (5th), 2) anything you say can and will be
used against you in court, 3) you have the right
to an attorney (Powell v. Alabama (1932):
Scottsboro Boys), 4) if you can’t afford an
attorney one will be appointed to you (Gideon v.
Wainwright (1963), [5) you can stop questioning
at any time]
Even if you’re a minor: In re Gault (1966)
Ok, so you were busted…
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Furman v. Georgia (1972): death penalty
cruel in its application
Gregg v. Georgia (1976): two phases
required: trial then punishment
Civil Rights
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Primarily 14th
Reasonable classification: some
discrimination necessary
Rational basis: does the classification bear
a reasonable relationship to the
achievement of some proper
governmental purpose?
Strict scrutiny: “compelling governmental
interest” justifies distinctions drawn
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Plessy, Brown
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Loving v. Virginia: interracial marriage (1967)
Regents of the UC v. Bakke (1978): quotas out, but race
may be one of a number of factors
Adarand Constructors v. Pena (1995): affirmative action
not benign, so must be “narrowly tailored” to overcome
specific, clearly provable discrimination
Grutter v. Bollinger and Gratz v. Bollinger (2003): AA
(points) ok for law school, not for undergrad; diversity is
a legitimate goal, but must be narrowly tailored
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Williams v. California (2001)
US Army sided w/AA—national security issue
Lawrence v. Texas (2003): sodomy laws out
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Baker v. Carr (1962): “one man, one vote”
in redistricting
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Texas 2003 redistricting case: (clearly)
partisan, racial impact League of United
Latin American Citizens v. Perry : largely
upheld, not unconstitutionally partisan, middecade redistrict fine, only 1 district had to be
redrawn