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John G. Roberts - Chief Justice of the United States Appointed by: President George W. Bush Appointed in: 2005 Age When Appointed: 50 John Paul Stevens Appointed by: President Ford Appointed in: 1975 Age When Appointed: 55 Samuel A. Alito, Jr. Appointed by: President George W. Bush Appointed in: 2006 Age When Appointed: 55 Antonin Scalia Appointed by: President Reagan Appointed in: 1986 Age When Appointed: 50 Anthony Kennedy Appointed by: President Reagan Appointed in: 1988 Age When Appointed: 52 Clarence Thomas Appointed by: President George H. W. Bush Appointed in: 1991 Age When Appointed: 43 Ruth Bader Ginsburg Appointed by: President Clinton Appointed in: 1993 Age When Appointed: 60 Stephen Breyer Appointed by: President Clinton Appointed in: 1994 Age When Appointed: 56 Sonia Sotomayor Appointed by: President Obama Appointed in: 2009 Age When Appointed: 55 Judiciary Assignment Instructions: Use Graphic Organizers, Diagrams, and/or Outlines to show mastery. Part I. 1. What if… Supreme Court Justices Had Term Limits? 2. The Common Law Tradition 3. Sources of American Law 4. The Federal Court System 5. Which cases reach the Supreme Court? 6. The Selection of Federal Judges 7. Policymaking and the Courts 8. What Checks our Courts? Part II. Profile: The Roberts Court -Background (education, family, occupations) -Appointment -Position on the Political Spectrum -Publications -History’s View & Legacy Part III. Characterize the following: Marshall Court Warren Court Burger Court Rehnquist Court Judiciary Assignment Instructions: Use Graphic Organizers, Diagrams, and/or Outlines to show mastery. Part I. 1. What if… Supreme Court Justices Had Term Limits? 2. The Common Law Tradition 3. Sources of American Law 4. The Federal Court System 5. Which cases reach the Supreme Court? 6. The Selection of Federal Judges 7. Policymaking and the Courts 8. What Checks our Courts? Part II. Profile: The Roberts Court -Background (education, family, occupations) -Appointment -Position on the Political Spectrum -Publications -History’s View & Legacy Part III. Characterize the following: Marshall Court Warren Court Burger Court Rehnquist Court Key Supreme Court Cases www.prenhall.com/burns www.cspan.org www.ask.com www.faculty.uml.edu www.supreme.lp.findlaw.com www.law.cornell.edu www.tourolaw.com www.google.com www.oyer.org www.landmark.com INSTRUCTIONS: Construct a chart/diagram giving a synopsis of the following court cases. Brown v. Board of Education of Topeka, 1954 *Buckley v. Valeo, 1976 Dred Scott v. Sanford, 1857 Engel v. Vitale, 1962 Escobedo v. Illinois, 1964 Gibbons v. Ogden, 1824 Gideon v. Wainwright, 1963 Gitlow v. New York, 1925 Griswold v. Connecticut, 1965 Mapp v. Ohip, 1961 Marbury v. Madison, 1803 McCullough v. Maryland, 1819 Miranda v. Arizona, 1966 Olmstead v. United States, 1928 Plessy v. Ferguson, 1896 Powell v. Alabama Regents of the University of California v. Bakke, 1978 Roe v. Wade, 1973 Schenk v. United States, 1919 *Swann v. Charlotte Mecklenburg Schools, 1972 Nixon v. United States, 1974 Weeks v. United States, 1914 Texas v. Johnson, 1989 U.S. v. Lopez, 1995 Printz v. United States, 1997 Clinton v. New York , 1998 LEARNING OBJECTIVES After students have read and studied this chapter, they should be able to: Explain such major concepts of the American legal system as the common law tradition, precedent, jurisdiction, and stare decisis. Outline the federal court system and explain the major function of each court: o District Court o U.S. Court of Appeals o U.S. Supreme Court Identify and explain the different types of opinions that are delivered by justices of the Supreme Court. o Unanimous opinion. o Majority opinion. o Concurring opinion. o Dissenting opinion. Summarize the presidential appointment process for all levels of federal courts including nominating candidates, their common qualifications, the role of senatorial courtesy, and how ideology has played an important role in the politics of appointments. Define activist and restraintist philosophies, and strict versus broad construction. Describe the Roberts Court, including its ideology and the types of cases it chooses to hear. Explain the policymaking function of the courts. TOPICS FOR DISCUSSION Why do laws exist? What happens if someone violates the law? What if the law is not fair or just? Who makes the law? Once the Supreme Court interprets the Constitution on a specific point, the interpretation remains until the Constitution is amended or until the Court overturns a previous decision. What is the likelihood of either of those actions? Should the courts have the power to make major policy decisions that are very difficult to change? If the courts did not have such power, who would decide what policies or laws were constitutional or unconstitutional? What would be the result of allowing Congress the power to determine what was constitutional? One advantage of judicial review is stability, that is, knowing what is the meaning of the law or the Constitution over a long period of time. One disadvantage is that it is very difficult to make changes, if one thinks a decision is unfair or unjust. Should the courts have the power to interpret the Constitution on a topic like abortion or physician-assisted suicide? Should judges be selected based partially on their party affiliation? Former President Reagan accused the U.S. Senate of “politicizing the judiciary” when it failed to confirm Robert Bork. Was this a valid complaint? How many judges selected by former President Reagan were Democrats? How many Democrats did President Bush nominate to the Supreme Court? How many Republicans did President Clinton nominate for the Supreme Court? Should the Senate always confirm the nominees of the president? Would it be possible or practical to eliminate party considerations? Should judges be making policy? Since they are not elected, is it dangerous for those who do not face public scrutiny in any meaningful way to directly make policy? What checks do the executive and the legislature have on the judiciary? Does the bureaucracy have any checks? Does the public? When George W. Bush had the opportunity to appoint a chief justice, he chose to bring in John Roberts rather than elevating one of the current members of the Court. When Ronald Reagan had this opportunity in 1986, he chose to elevate William Rehnquist, who had served for fifteen years on the Court, to the position of chief justice. My students are always fascinated by this dilemma faced by a president who is called upon to appoint a chief justice. Ask your students what they would do in the same situation. BEYOND THE BOOK James Madison in Federalist #51 made the argument for the selection of all federal judges by the president, with the consent of the Senate. Madison indicated the selection of judicial officers presents some difficulties, “first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; second, because the permanent tenure by which the appointments are held in that department must soon destroy all sense of dependence on the authority conferring them.” The two main arguments for this method are: (1) judges, unlike members of the other branches, must be knowledgeable practitioners of the law; and (2) once nominated to the bench, judges are not dependent on others for maintaining their office. A president is elected to serve a four-year term and can only serve for two terms. The president’s influence can, however, last much longer depending on the judicial appointments he makes to the federal courts. For example, John Kennedy selected Byron White as a justice to the Supreme Court. White served on the Court during eight subsequent presidents. While Justice White’s tenure is longer than most federal judges, his appointment does demonstrate the impact a president can have on the judicial system. The importance of political party can be seen from one striking statistic: Only 13 percent of the justices nominated have been of a different party than the president. The political fortunes of a party can have long-lasting effects on the Supreme Court. From 1933 to 1953, the Democrats controlled the White House and therefore controlled the nominating process. From 1969 to 1992, Republican presidents were responsible for every nomination to the Supreme Court (President Carter, a Democrat, did not have the opportunity to nominate a justice to the Supreme Court because there were no vacancies during his four-year term of office). A federal court can declare the action of a state to be unconstitutional. The federal courts have made over 1,000 such decisions since 1789. Since Marbury v. Madison in 1803, the Supreme Court has ruled against Congress over 150 times. Who is president can make a difference in when a federal judge will decide to leave the bench. In March of 1993, for example, Justice White announced he would retire after the end of the 1992-1993 term, in part because he was nominated by a Democrat (John Kennedy) and he wanted a Democratic president to have the opportunity to replace him. Justice Thurgood Marshall used to joke about not stepping down while Ronald Reagan was the president who would appoint his successor. Justice Sandra Day O’Connor stepped down while President George W. Bush was in office, ensuring that a Republican president would select her successor. CHAPTER OUTLINE I. The Common Law Tradition Law in the United States is based primarily on the English legal system because of our colonial heritage. Once the colonies became independent from England, they did not establish a new legal system. With few modifications, the old English legal system was kept intact and states began to operate their courts based on these traditions. Unlike many other countries, English law is based on common law. Common law is judge-made law based initially on the prevailing custom and eventually on legal precedent. Common law is based on stare decisis, which means to stand on decided cases. If a legal situation occurs that has previously been decided, the decision in the initial case is binding on the current situation. The major advantages to this type of system are efficiency and stability. II. Sources of American Law A. Constitutions. The U.S. Constitution is the supreme law of the land. It outlines the basic structure of our government, and also sets forth the powers of the branches of government. The Constitution also lists some of the important rights held by individuals and limitations on the government. State constitutions are another important source of American law. They provide the structure of state governments and are the guiding documents within the specific states. B. Statutes and Administrative Regulations. Statutes are an important source of law. Statutes are laws made by legislatures, including the Congress, state legislatures, and also county legislatures and local councils. These laws often delineate the rights (or responsibilities) of individuals. Administrative regulations are another source of law in the United States. Administrative regulations are rules issued by administrative agencies. Courts often are called upon to interpret administrative regulations. C. Case Law. How statutes and constitutions are interpreted by the courts is essential. The rules and principles announced in court decisions constitute a source of American law. In American case law, the doctrine of stare decisis is important. This means that U.S. case law is based on precedent. III. The Federal Court System The United States has a dual court system, comprised of both federal and state courts. A. Basic Judicial Requirements. 1. Jurisdiction. This is the authority to hear and decide cases. The Constitution says that the federal courts have jurisdiction in cases that meet one of the following criteria: The case involves a federal question. A federal question is a legal question that is based, in whole or in part, on the U.S. Constitution, a treaty, or federal law. An example of a case asking a federal question would be one in which a plaintiff asserted his or her civil rights as guaranteed in the Bill of Rights (to free speech, or the free exercise of religion, for example). The case involves diversity of citizenship. Diversity of citizenship means that the parties to a lawsuit are from different states, or that one of the parties is a citizen or government of another country. These cases require a minimum of $75,000 in controversy. 2. Standing to Sue. Another important criteria is that the party bringing a lawsuit must have “standing to sue.” That is, the party must have suffered harm, or be in danger of suffering harm, and there must be a justiciable a (real, not hypothetical) controversy. B. Types of Federal Courts. The federal court system is a three-tiered model. 1. U.S. District Courts. These are trial courts with general jurisdiction. Each state has at least one federal district court, and there are now a total of 94 districts. 2. U.S. Courts of Appeals. These are appellate courts that hear appeals of decisions of the U.S. District Courts located within their circuits. The Thirteenth Circuit (the Federal Circuit) has national appellate jurisdiction for cases involving the U.S. government. In appellate cases, the cases are not re-tried. Rather, a panel of judges reviews the actions and decisions of the lower court and decides whether a mistake was made. The decisions of the appellate panels are nearly always final, the rare exception being when the U.S. Supreme Court opts to hear an appeal. 3. The United States Supreme Court. This is the highest court in the country. It has jurisdiction to hear both original and appellate cases, although nearly all of its cases are appellate cases.. C. Specialized Federal Courts and the War on Terrorism. 1. The FISA Court. This is a secret court created under the Foreign Intelligence Surveillance Act (FISA) of 1978. It was established to issue warrants in espionage cases. After 9/11, the Bush administration extended the powers of this court to cover some criminal cases. Using FISA warrants, law enforcement can conduct secret searches. 2. Alien “Removal Courts.” The Anti-Terrorism and Effective Death Penalty Act of 1996 created an alien “removal court” to hear evidence against suspected “alien terrorists.” The court is closed to the public. Judges rule on whether there is probable cause for deportation. The defendant cannot see the evidence that the prosecution used to secure the hearing. D. Parties to Lawsuits. Key terms: Plaintiff, the person or organization that initiates a lawsuit. Defendant, the person or organization against whom the lawsuit is brought. Litigate, to engage in a legal proceeding or seek relief in a court of law; to carry on a lawsuit. Amicus curiae brief, a brief (a document containing a legal argument supporting a desired outcome in a particular case) filed by a third party, or amicus curiae (Latin for “friend of the court”), who is not directly involved in the litigation but who has an interest in the outcome of the case. An example is a class-action suit, a lawsuit seeking damages for “all persons similarly situated.” E. Procedural Rules. The parties must comply with procedural rules and orders given by the judge. When a party does not follow a court’s order, the court can cite him or her for contempt. Civil contempt is failing to comply with a court’s order for the benefit of another party. Criminal contempt is obstructing the administration of justice or bringing the court into disrespect. IV. The Supreme Court at Work The Supreme Court begins the first Monday in October and usually adjourns in late June. The nine justices must decide which cases to accept during the term, schedule oral arguments, read the legal briefs from all parties in the case, meet in conference to discuss the issues involved in each case, draft opinions of the Court for each case, and finally write the final opinions for each case. The cases that the Supreme Court has decided have impacted our lives considerably. Their decisions have also had important policy outcomes. In the past several years, the Supreme Court has heard cases regarding states’ rights, capital punishment, abortion, privacy rights, civil rights for minorities, and free speech issues. A. Which Cases Reach the Supreme Court? Former Chief Justice William Rehnquist has observed that the selection of Supreme Court cases is somewhat subjective. 1. Factors that Bear on the Decision. There are conditions that increase a case’s chance of being heard by the Supreme Court. These include: When two lower courts are in disagreement. When a lower court’s ruling conflicts with an existing Supreme Court ruling. When a case has broad significance (as in desegregation or abortion decisions). When a state court has decided a substantial federal question. When the highest state court holds a federal law invalid, or upholds a state law that has been challenged as violating a federal law. When a federal court holds an act of Congress unconstitutional. When the solicitor general is pressuring the Court to hear a case. The solicitor general represents the executive branch of the government before the Court. 2. Granting Petitions for Review. Review is granted by a writ of certiorari. To issue a writ, a minimum of four justices must agree that the case should be heard by the Supreme Court (the “rule of four”). This does not mean that all four justices are in agreement as to the outcome of the case in question. Rather they are in agreement that this is an important case worthy of the attention of the Supreme Court. B. Deciding Cases. Once the Court has decided to accept a case, both parties in the case will submit legal briefs and engage in oral arguments. C. Decisions and Opinions. If the Court is unanimous in the ruling, one justice will be assigned to write the opinion of the Court. If the justices are divided on the reasoning of the outcome, there will be a majority opinion and dissenting opinions. Dissenting opinions are important because they typically form the basis for reversal arguments. On occasion there will be a concurring opinion by a justice. This opinion states a differing point of view on a legal issue, but supports a ruling in agreement with the majority of the Court. V. The Selection of Federal Judges A. Judicial Appointments. After the president has nominated a candidate for any federal judicial position, the United States Senate must consider the candidate. If a majority of the Senate approves the candidate, the president will then appoint the judge to serve for life. Senatorial courtesy is a constraint on the president’s freedom to appoint federal district judges. Senatorial courtesy allows a senator to veto a judicial appointment in his or her state. 1. Federal District Court Judgeship Nominations. Until President Jimmy Carter (1977–1981), the nomination of federal district court judges actually originated with a senator or senators of the president’s party from the state in which there was a vacancy. In effect, judicial appointments were a form of political patronage. Since Ronald Reagan (1981–1989), the president has established complete control of nominations. Beginning in 2002, the Republicans have revoked the extension of senatorial courtesy to the opposition party. 2. Federal Courts of Appeals Appointments. At the Court of Appeals level, candidates are reviewed in more detail. It is not unusual for those positions to be a stepping-stone to the Supreme Court. In fact, every member of the current Supreme Court served on a federal circuit court of appeals. 3. Supreme Court Appointments. Nominations to the Supreme Court are carefully considered by the president. Only two members of the Court have been African American and only two have been female. 4. The Special Role of the Chief Justice. The chief justice not only heads the Supreme Court, but also serves as the chief executive officer of the large bureaucracy within the federal judicial system. B. Partisanship and Judicial Appointments. In selecting a candidate the president may take into account many factors but two factors in particular stand out: the party affiliation of the candidate and the political philosophy of the individual. Certainly this was the case with George W. Bush’s selection of John Roberts and Samuel Alito to become members of the Court. However, it must be noted that as members sit on the Court they have a tendency to modify their ideological positions and some have been bitter disappointments to the presidents who nominated them. C. The Senate’s Role. If the president nominates a candidate that is considered to be significantly to the left or right of the political spectrum, the candidate may face opposition in the Senate. The impact of ideology also can be witnessed in the confirmation process. Since the presidency of Andrew Jackson, the Senate has often failed to confirm presidential judicial appointments. During the Reagan administration, there was acrimonious debate over the nomination of Robert Bork, whom the Senate rejected. During the George H. W. Bush administration, the nomination of Clarence Thomas was also contentious, though Thomas was confirmed. President Clinton succeeded in getting both of his Supreme Court nominees, Ruth Bader Ginsburg and Stephen Breyer confirmed. George W. Bush was forced to withdraw his nomination of Harriet Miers when Republicans in the Senate questioned her qualifications. VI. Policymaking and the Courts A reason for the vigor of the debates concerning judicial appointments is that the courts play a large role in determining policy throughout the country. One of the important ways for the judiciary to influence policy is through judicial review. A. Judicial Review. The power of the courts to determine whether a law or action by the other branches of government is constitutional is known as the power of judicial review. Supreme Court decisions in this regard are important because of the Court’s national jurisdiction. When a state law is ruled unconstitutional by the Supreme Court, it is then likely that other states’ laws will be held invalid as well. Although most people have come to accept the concept of judicial review, bear in mind that this power is not specifically articulated in the Constitution. Rather, Article III speaks in terms of the “judicial power” being given to the Supreme Court, although some commentators argue that the Framers understood judicial review to be encompassed by the concept of judicial power. The idea of judicial review was formally claimed by the Supreme Court in the landmark case of Marbury v. Madison (1803) in a decision written by Chief Justice John Marshall. B. Judicial Activism and Judicial Restraint. To some extent the ability of the courts to act as policymakers depends on the activism or the restraint of the courts. If the Court assumes an activist role, it will take a broad view of the Constitution and use its powers to check the activities of governmental bodies when those bodies can be said to exceed their authority. If the Court assumes the role of judicial restraint, the Court will use the power of judicial review sparingly and limit judicial action in the political process. Since the end of Word War II the Court has been much more activist than before, especially on social issues such as civil rights. Activism is sometimes associated with political liberalism and restraint with conservatism, but the reverse is also possible. C. Strict versus Broad Construction. Key concepts: Strict construction, a judicial philosophy that looks to the “letter of the law” when interpreting the Constitution or a particular statute. Broad construction, a judicial philosophy that looks to the context and purpose of a law when making an interpretation. As with activism and restraint, broad construction may be associated with liberalism and narrow construction with conservatism. Again, though, these associations can be reversed. D. Ideology and the Rehnquist Court. The ideology of the justices determines the kinds of policy that the courts will make. Under the leadership of Chief Justice Rehnquist, the Court had been considered conservative, reflecting the philosophical views of the Republican presidents who selected most of the justices on the Court. With the retirement of Sandra Day O’Connor and the death of William Rehnquist, the Court stands ideologically divided. Today, two of the justices, Antonin Scalia and Clarence Thomas are notably conservative. The two new Bush appointees, Chief Justice John Roberts and Samuel Alito, are expected to join Scalia and Thomas to form a four-judge conservative wing. Four members of the Court, John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, line up on the liberal wing of the Court. Justice Anthony Kennedy stands in the center and his decisions control, to a great extent, the direction of the Court. 1. Federalism. The Rehnquist Court attempted, to a limited degree, to restore states’ rights. Notably, the Court has limited the rights of citizens to sue their own states in federal courts. Also the Rehnquist Court ruled that California’s medicinal marijuana program must yield to the power of Congress to regulate interstate commerce. 2. Civil Rights. The Rehnquist Court was relatively cautious on civil rights issues, for example ruling that affirmative action is acceptable but within strict limits. One striking ruling in support of the civil rights of gay men and lesbians, however, was the abolition of anti-sodomy laws in 2003 through Lawrence v. Texas. VII. What Checks Our Courts? Although the founding fathers considered the judiciary the branch with the least power, the actual power the federal courts can exert on society is quite great. What protection do the people have from the federal judiciary? A. Executive Checks. The president has several important methods of checking the judiciary. The president has the power to enforce judicial decisions through the use of the bureaucracy. In rare cases a president may refuse to implement a decision. More frequently, presidents use their power of appointment to check the judiciary. When vacancies occur within the judiciary the president can select judges who are more inclined to view the laws and Constitution from the perspective of the president. As indicated earlier. this power can assist the president in accomplishing goals long after he has left office. B. Legislative Checks. 1. Congress can propose a constitutional amendment if it opposes the Supreme Court’s interpretation of the Constitution. 2. When the courts make a ruling on a particular law, the legislature can revise the law if the interpretation by a federal court is not what the legislature intended. C. Public Opinion. Although the public does not have a direct influence on the selection of members of the judiciary, it does have an indirect influence through the selection of the president. Also, the Court does not operate in a vacuum and is reluctant to make rulings that might be very unpopular. D. Judicial Traditions and Doctrines. To a certain extent, the courts also check themselves. 1. Hypothetical and Political Questions. The tradition of refusing to adjudicate hypothetical questions serves as one check. The doctrine that many issues (political questions) ought to be resolved by the elected branches of government is also a restraint. 2. The Impact of the Lower Courts. If lower courts dislike a Supreme Court ruling, they cannot overturn it but can seek to apply it in as limited a fashion as possible. VIII. Features A. What If . . . Supreme Court Justices Had Term Limits? Such a move would have the effect of reducing the partisan rancor that has come to accompany the confirmation process, since a lifetime appointment would no longer hang in the balance. In addition this would require a consistent infusion of new blood onto the Court. No longer would justices be able to make a partisan decision about when they would step down. B. Beyond Our Borders: The Legal System Based on Sharia. Sharia law is based in large part on the Koran and the manner in which Muhammad lived his life. While it is used with different levels of stringency and severity in different countries, in some contexts it is used to justify punishments that are at the very least unduly harsh. C. Which Side Are You On? Is the Process of Confirming Judicial Nominees Too Political? Political disputes over judicial confirmations have become more common since the rejection of Republican Robert Bork’s nomination to the Supreme Court in 1987. Democrat Bill Clinton had great difficulty in getting his nominations confirmed and Republican George W. Bush has had problems as well. Burns: LECTURE OUTLINE 1. What If . . . Supreme Court Justices Had to Campaign? A. The argument for the selection of all federal judges by the president, with the consent of the Senate, was made by James Madison in Federalist #51. Madison indicated the selection of judicial officers presents some difficulties, “... first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; second, because the permanent tenure by which the appointments are held in that department must soon destroy all sense of dependence on the authority conferring them.” The two main arguments for this method are: (1) judges, unlike members of the other branches, must be knowledgeable practitioners of the law; and (2) once nominated to the bench, judges are not dependent on others for maintaining their office. B. If the Constitution had provided for the election of Supreme Court justices, our judiciary system would be much different. Some assert that if Supreme Court justices were elected, they would be more responsive to public opinion. This may be perceived as a good thing. C. But there are problems associated with electing Supreme Court justices. Should it be the Supreme Court’s job to decide in favor of the popular position, or should it be to uphold the constitution and make decision based on the laws of the country? In addition the power of interest groups certainly would increase, with judges perhaps making decisions based on who contributed to their campaign. Elected judges may feel they have less latitude to protect unpopular, yet constitutionally protected, positions. D. Another problem associated with electing Supreme Court justices could be the tendency for swift ideological shifts. Currently there is little turnover in Supreme Court justices, but if all bench seats were elected regularly, there could be significant turnover. This could transform the ideology of the Supreme Court in a relatively short period of time. 2. The Common Law Tradition Law in the United States is based primarily on the English legal system because of our colonial heritage. Once the colonies became independent from England, they did not establish a new legal system. With few modifications the old English legal system was kept intact and states began to operate their courts based on the traditions of the previous form of government. Unlike many other countries, English law is based on common law. Common law is judge-made law based initially on the prevailing custom and eventually on legal precedent. This concept is also referred to as stare decisis, which means to stand on decided cases. If a legal situation occurs that has previously been decided, the decision in the initial case is legally binding on the current situation. The major advantages to this type of system are efficiency and stability. 3. Sources of American Law A. The U.S. Constitution outlines the basic structure of our government, and also set forth the powers of the branches of government. This U.S. Constitution also list some of the important rights held by individuals and limitations on the government. B. State constitutions are another important source of American law. They provide the structure of state governments and are the guiding documents within their specific state. C. Statutes are an important source of law. Statutes are laws made by legislatures, including the Congress, state legislatures, and also county legislatures and local councils. These laws often delineate the rights (or responsibilities) of individuals. D. Administrative regulations are another source of law in the United States. Administrative regulations are rules issued by administrative agencies. Courts often are called upon to interpret administrative regulations. E. Case law, or the rules and principles announced in court decisions constitute the final source of American law. In American case law, the doctrine of stare decisis, is important. This means that U.S. case law often is based on precedent. 4. The Federal Court System A. The United States has a dual court system, comprised of both federal and state courts.. B. The United States federal courts derive their power from Article III, Section 1 of the Constitution. This section describes the jurisdiction, or the authority to hear and decide cases, of the federal courts. The Constitution says that the federal courts have jurisdiction in cases that meet at one of the following criteria. 1. The case involves a federal question. A federal question is a legal question that is based, in whole or in part on the U.S. Constitution, a treaty or federal law. An example of a case asking a federal question would be one in which a plaintiff asserted his or her civil rights as guaranteed in the Bill of Rights (to free speech, or the free exercise of religion, for example). 2. The case involves diversity of citizenship. Diversity of citizenship means that the parties to a lawsuit are from different states, or that a U.S. citizen is suing a citizen or government of another country. These cases require a minimum of $75,000 in contest. C. Another important criteria is that the party bringing a law suit must have “standing to sue.” That is, the party must be justified in bringing the suit, and there must be a justiciable a (real, not hypothetical) controversy. D. The federal court system is a three-tiered model. 1. U.S. District Courts are trial courts with general jurisdiction. Each state has at least one federal district court, and there are now a total of 94 districts. 2. U.S. Courts of Appeals are appellate courts that hear appeals of decisions of the U.S. District Courts located within their circuit. The Thirteenth Circuit (the Federal Circuit) has national appellate jurisdiction for cases involving the U.S. government. In appellate cases, the cases are not re-tried. Rather, a panel of judges reviews the transcript of the trial and the decision, and they decide if a mistake was made. The decisions of the appellate panels are nearly always final, the rare exception being when the U.S. Supreme Court opts to hear an appeal. 3. The United States Supreme Court is the highest court in the country. It has jurisdiction to hear both original and appellate cases. Nearly all of its cases are appellate cases, with the original jurisdiction being either the U.S. District Courts or the highest state courts (it will exercise this prerogative only if the case has federal jurisdiction, as defined in B 1 or 2). 5. The Supreme Court at Work A. The Supreme Court begins the first Monday in October and usually adjourns in late June. The nine justices must decide which cases to accept during the term, schedule oral arguments, read the legal briefs from all parties in the case, meet in conference to discuss the issues involved in each case, draft opinions of the Court for each case, and finally write the final opinions for each case. The cases that the Supreme Court has heard and their subsequent decisions have impacted our lives considerably. Their decisions have also had important policy outcomes. In the past several years, the Supreme Court has heard cases regarding states’ rights, capital punishment, abortion, privacy rights, civil rights for minority and free speech issues. B. Chief Justice William Rehnquist called the selection of Supreme Court cases subjective. Yet there are conditions that increase a case’s chance of being heard by the Supreme Court. These include: 1. When two lower courts are in disagreement. 2. When a lower court’s ruling conflicts with an existing Supreme Court ruling. 3. When a case has broad significance (as in desegregation or abortion decisions). 4. When a state court has decided a substantial federal question. 5. When the highest state court holds a federal law invalid, or upholds a state law that has been challenged as violating a federal law. 6. When a federal court holds an act of Congress unconstitutional. 7. When the solicitor general is pressuring the Court to hear a case. The solicitor general in the executive branch, represents the national government. In order to issue the writ of certiorari, a minimum of four justices must agree that the case should be heard by the Supreme Court (the “rule of four”). This does not mean that all four justices are in agreement as to the outcome of the case in question. Rather they are in agreement this is an important case worthy of the attention of the Supreme Court. C. Once the Court has decided to accept a case both parties in the case will submit legal reasoning as to how the case should be decided by the Court. Oral arguments are also included on occasion, but cases are decided on points of law rather than facts of the case. After all arguments have been made the Court will decide the outcome of the case. If the Court is unanimous in the ruling, one justice will be assigned to write the opinion of the Court. If the justices are divided on the reasoning of the outcome, there will be a majority opinion and dissenting opinions. Dissenting opinions are important because they typically form the basis for reversal arguments. On occasion there will be a concurring opinion by a justice. This opinion states a differing point of view on a legal issue, but the outcome is in agreement with the majority of the Court. 6. The Selection of Federal Judges A. A president is elected to serve a four-year term and can only serve for two terms. His influence can, however, last much longer depending on the judicial appointments he makes to the federal courts. John Kennedy selected Byron White as a justice to the Supreme Court. White served on the Court during eight different presidents. While Justice White’s tenure is longer than most B. C. D. E. federal judges, his appointment does demonstrate the impact a president can have on the judicial system. After the president has nominated a candidate for any federal judicial position, the United States Senate must consider the candidate. If a majority of the Senate approves the candidate, the president will then appoint the judge to serve for as long as the judge wants to serve. It is unusual for the Senate to reject a candidate for the positions at either the District Court or the Court of Appeals. At the District Court level, a senator from the district who belongs to the same party as the president submits a list of candidates to the president and the president then nominates the person the senator wanted to fill the position. At the Court of Appeals level candidates are reviewed in more detail, especially in light of candidates that were approved at this level under both President Reagan and President Bush and then these candidates were later nominated to the Supreme Court. Senators who voted for candidates like Robert Bork and Clarence Thomas when they were nominated for a Court of Appeals seat, but then voted against these candidates for a seat on the Supreme Court, had a difficult time explaining how they could support the candidate at one level but not at the other level. Although there is no requirement that a candidate for justice of the Supreme Court have experience at either the District Court or the Court of Appeals, it is not unusual for those positions to be a stepping stone to the Supreme Court. Nominations to the Supreme Court are carefully considered by the president. In selecting a candidate the president may take into account many factors but two factors in particular stand out: the party affiliation of the candidate and the political philosophy of the individual. The importance of political party can be seen from one striking statistic, only 13 percent of the justices nominated have been of a different party than the president. The political fortunes of a party can have long, lasting effects on the Supreme Court. From 1933 to 1953 the Democrats controlled the White House and therefore controlled the nominating process. From 1969 to 1992, Republican presidents were responsible for every nomination to the Supreme Court (President Carter, a Democrat, did not have the opportunity to nominate a justice to the Supreme Court because there were no vacancies during his four-year term of office). If the president nominates a candidate that is considered to be significantly to the left or right of the political spectrum, the candidate will be sure to face considerable opposition in the Senate. Other than political party affiliation and political philosophy of the candidate, the president will also consider other factors including: the legal background, education, age, gender, race, and religious affiliation. Until the latter half of the twentieth century the composition of the members of the Supreme Court was older white Protestant males. Only two members of the Court have been African American and only two have been female (See Acetate CT-4). The impact of partisanship can be seen in the federal courts, where President Bill Clinton has had the opportunity to appoint about 200 federal judges, thus markedly changing the ideology of the courts for years to come. F. The impact of ideology also can be witnessed in the confirmation process. Since the presidency of Andrew Jackson, the Senate has failed to confirm presidential judicial appointments. During the Reagan administration, there was acrimonious debate over the nomination of Robert Bork, whom the Senate rejected. During the George H. W. Bush administration, the nomination of Clarence Thomas was also contentious, though Thomas was confirmed. President Clinton succeeded in getting both of his Supreme Court nominees, Ruth Bader Ginsburg and Stephen Breyer confirmed. 7. Policymaking and the Courts A. The reason for the vigor of the debates concerning judicial appointments is that it is widely recognized that the courts plays a large role in determining policy throughout the country. One of the important ways for the judiciary to influence policy is through judicial review. The concept of judicial review, as applied to state laws, is provided for in Article VI of the Constitution. If a case challenges a decision of a state court concerning the status of a state action in relationship to the United States Constitution or laws of the federal government, a federal court can declare the action of the state as unconstitutional. The federal courts have made over 1,000 such decisions since 1789. In 1803 the concept of judicial review was broadened to include the possibility of declaring acts of Congress unconstitutional. Since the case of Marbury v. Madison, where the Supreme Court declared part of an act of Congress unconstitutional, the federal courts have ruled against Congress over 150 times. Supreme Court decisions in this regard are important because of the Court national jurisdiction. When a state law is ruled unconstitutional by the courts, it is then likely that other states’ law will be held invalid as well. This has been the situation with cases concerning term limits, assisted suicide and gun control. B. To some extent the ability of the courts to act as policymakers depends on the activism or the restraint of the courts. If the Court assumes the role of judicial activism, the Court will use power to direct policy toward a desired goal. An activist Court takes a broad view of the Constitution and involves itself in legislative and executive matters. If the Court assumes the role of judicial restraint, the Court rarely uses the power of judicial review and limits judicial action in the political process. Since the end of Word War II the Court has been much more likely to assume the role of judicial activism. C. The ideology of the court determines the kinds of policy that the courts will make. With the Supreme Court, some of the Court’s ideology is determined by the ideology of the Chief Justice. The Chief Justice has only one vote on the Supreme Court, but his influence exceeds a single vote. During his tenure as Chief Justice the Court is often referred to by the last name of the Chief Justice. Under the leadership of the Chief Justice, the Court may take on a particular philosophical tilt. The Rehnquist Court has been considered very conservative, in part reflecting the philosophical views of the Republican presidents who selected most of the justices on the Court (Nixon, Ford, Reagan, and George H. W. Bush). President Clinton had a significant impact on the composition of the Rehnquist Court with his two appointments (Bader Ginsburg and Breyer). The ideology of the Supreme Court serves as a legacy to the presidents who nominated the justices. 8. What Checks Our Courts? A. Although the founding fathers considered the judiciary the branch with the least power, the actual power the federal courts can exert on society is quite great. What protection do the people have from the federal judiciary? B. Executive checks - The president has several important methods of checking the judiciary. 1. Judicial Implementation -- the president has the power to enforce judicial decisions through the use of the bureaucracy. Rarely presidents refuse to implement a decision, but their commitment to the policy may belie the aggressiveness with which the decision is implemented. 2. More frequently, presidents use their power of appointment to check the judiciary. When vacancies occur within the judiciary the president can select judges who are more inclined to view the laws and Constitution from the perspective of the president. As indicated earlier this power can assist the president in accomplishing goals long after he is no longer in office. C. Legislative checks - When the courts make a ruling on a particular law the legislature can revise the law if the interpretation by a federal court is not what the legislature intended. Congress also can propose a Constitutional amendment if it opposes the Supreme Court’s interpretation of the Constitution. D. Although the public does not have a direct influence on the selection of members of the judiciary, it does have an indirect influence in the selection of the president. Voters elect the president (who makes judicial appointments) and who is president can also make a difference as to when a federal judge will decide to leave the bench. In March of 1993 Justice White announced he would retire after the end of the 1992-1993 term, in part because he was nominated by a Democrat (John Kennedy) and he wanted a Democratic president to have the opportunity to replace him. It is possible that Justice O’Connor and Chief Justice Rehnquist will step down during President George W. Bush’s administration, thus allowing the Republican president to select their successors. E. To a certain extent, the courts also check themselves. Their unwillingness to adjudicate political questions, and to leave such questions for resolution by elected bodies demonstrates that courts sometimes see their role as limited. This chapter discusses the federal judiciary and the work of its judges and justices. The chapter describes the role and composition of the American judicial system, particularly the Supreme Court, while examining the politics of federal court appointments. This chapter also focuses on judicial policymaking and describes how legal and political factors come together to influence the Court’s decisions. In addition, the chapter examines the controversy that surrounds the judiciary’s policy role. The main points of the chapter are: The federal judiciary includes the Supreme Court of the United States, which functions mainly as an appellate court; courts of appeals, which hear appeals; and district courts, which hold trials. Each state has a court system of its own, which for the most part is independent of supervision by the federal courts. Judicial decisions are constrained by applicable constitutional law, statutory law, and precedent. Nevertheless, political factors have a major influence on judicial appointments and decisions; judges are political officials as well as legal ones. The judiciary has become an increasingly powerful policymaking body in recent decades, which has raised the question of the judiciary’s proper role in a democracy. The philosophies of judicial restraint and judicial activism provide different answers to the question. At the lowest level of the federal judicial system are the district courts, where most federal cases begin (and end). Above them are the federal courts of appeals, which review cases appealed from the lower courts. The U.S. Supreme Court is the nation’s highest court. Each state has its own court system, consisting of trial courts at the bottom and one or two appellate levels at the top. Cases originating in state court ordinarily cannot be appealed to the federal courts unless a federal issue is involved, and then the federal courts can choose to rule only on the federal aspects of the case. The Supreme Court is unquestionably the most important court in the country. The legal principles it establishes are binding on lower courts, and its capacity to define the law is enhanced by the control it exercises over the cases it hears. (See OLC simulation, "Judiciary Court Case," at www.mhhe.com/patterson5.) The most important part of the Court’s majority opinion in a case is the legal reasoning underlying the decision; this reasoning guides lower courts in their handling of similar cases. However, it is inaccurate to assume that lower courts are inconsequential (the upper-court myth). Lower courts have considerable discretion in their evaluation of the facts and applicable laws of the cases before them, and the great majority of their decisions are not reviewed by a higher court. It is also inaccurate to assume that federal courts are far more significant than state courts (the federal-court myth). The vast majority of legal cases that arise each year in the United States are decided in state courts. Federal judges at all levels are appointed by the president and confirmed by the Senate. Once on the federal bench, they serve until they die, retire, or are removed by impeachment and conviction. Partisan politics plays a significant role in judicial appointments. Presidents are particularly alert to political philosophy in their selection of Supreme Court justices. The nation’s top court makes broad policy decisions, and presidents have tried to ensure that appointees share their partisan goals. The courts have less discretionary authority than elected institutions. The judiciary’s positions are constrained by the facts of a case and by what is stated in the Constitution, statutes and governmental regulations, and legal precedent. Yet existing legal guidelines are seldom so precise that judges have no choice in their decisions. The state of the law narrows a judge’s options in a particular case, but within these confines there is room for considerable discretion. As a result, political influences have a strong impact on the judiciary. It responds to national conditions, public opinion, interest groups, and elected officials, particularly the president and members of Congress. Another political influence on the judiciary is the political beliefs of judges, who have personal preferences that are evident in the way they decide on issues that come before the courts. Federal judges are important policymaking officials because of gaps in the law that require interpretation and because of their role in constitutional interpretation. Issues of federalism, separation of powers, majority power, and individual rights are often resolved through the courts, particularly the Supreme Court. In recent decades the Court has issued broad rulings on individual rights, some of which have required government to take positive action on behalf of minority interests. As the Court has crossed into areas traditionally left to lawmaking majorities, the legitimacy of its policies has been questioned. Advocates of judicial restraint claim that the justices’ personal values are inadequate justification for exceeding the proper judicial role. They argue that the Constitution entrusts broad issues of the public good to elective institutions and that judicial activism ultimately undermines public respect for the judiciary. Judicial activists counter that the courts were established as an independent branch and should not hesitate to promote new principles when they see a need, even if this action puts them into conflict with elected officials. While one can argue that all judges, be they liberal or conservative, are to some degree activist, the difference between judicial activism and restraint lies in the extent to which a judge is willing to depart from the wording of the law and contest the will of the other branches of government The Judiciary Judges and Justices of the federal court system were not elected but rather appointed by the president and confirmed by the Senate. This doesn’t mean that the federal judiciary is apolitical. In the opinion of many experts, our courts play a larger role in public policy than in any country in the world today. Alexis de Tocqueville, 19th century French commentator on American society, noted, “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” The instant judges interpret the law, they become actors in the political arena— policymakers working within a political institution. Precedent the practice of deciding new cases with reference to former decisions. Stare (ster-ay dih-si-ses) a Latin phrase meaning “to stand on decided cases.” This doctrine obligates judges to follow the precedents set previously only by their own courts or by higher courts that have authority over them. For example, a lower state court in California would be obligated to follow a precedent set by the California Supreme Court. That lower court, however, would not be obligated to follow a precedent set by the supreme court in another state, because each state court system is independent. Of course, when the United States Supreme Court decides an issue, all of the nation’s other cases are obligated to abide by the Court’s decision— because the Supreme Court is the highest court in the land. The Constitution is the supreme law of the land. A law in violation of the Constitution, no matter what its source, may be declared unconstitutional and thereafter cannot be enforced. State constitutions are supreme within their respective borders (unless they conflict with the U.S. Constitution or federal laws and treaties made in accordance with it.) The Federal Court System The U.S. has a dual court system consisting of state courts and federal courts. Article III, section outlines the power of the federal court system. That section limits the jurisdiction (the authority to hear and decide cases) of the federal courts to cases that involve either a federal question of diversity of citizenship. A federal question arises when a case is based, at least in part, on the U.S. Constitution, a treaty, or a federal law. A person who claims that his or her rights under the Constitution, such as the right to free speech, have been violated could bring a case in a federal court. District Courts Trial Courts—trials are held and testimony is taken. These courts are of general jurisdiction, meaning that they can hear cases involving a broad array of issues. There is at least one federal district court in every state. The number of judicial districts can vary over time, primarily owing to population changes and corresponding caseloads. Currently, there are 94 federal judicial districts. A party who is dissatisfied with the decision of a district court judge can appeal the case to the appropriate U.S. court of appeals, or federal appellate court. U.S. Courts of Appeals There are thirteen U.S. courts of appeals. Twelve of these courts hear appeals from the Federal district courts located within their respective judicial circuits. The Court of Appeals for the Thirteenth Circuit, called the Federal Circuit, has national appellate jurisdiction over certain types of cases, such as cases involving patent law and those in which the U.S. government is a defendant. When an appellate court reviews a case decided in a district court, the appellate court does not conduct another trial. Rather, a panel of three or more judges reviews the record of the case on appeal, which includes a transcript of the trial proceedings, and determines whether the trial court committed an error. Usually, appellate courts do not look at questions of fact (such as whether a party did, in fact, commit a certain action, such as burning a flag) but at questions of law (such as whether the act of flag burning is a form of speech protected by the First Amendment to the Constitution). An appellate court will challenge a trial court’s finding of fact only when the finding is clearly contrary to the evidence presented at trial or when there is no evidence presented at trial or when there is no evidence to support the finding. Which Cases Reach the Supreme Court? The Court’s appellate jurisdiction is almost entirely discretionary—the Court can choose which cases it will decide. The justices never explain their reasons for hearing certain cases and not others, so it is difficult to predict which case or type of case the Court might select. Chief Justice William Rehnquist, in his description of process in one of his books, the decision of whether or not to accept a case is rather subjective, part intuition, and part legal judgement. Solicitor general – a high ranking presidential appointee within the Justice Department, represents the national government in the Supreme Court and promotes presidential policies in the federal courts. Sometimes refer to as the “Tenth justice.” Writ of certiorari (sur-shee—uh—rah—ree) The writ orders a lower court to send the Supreme Court a record of the case for review. More than 90 percent of the petitions for writs of certiorari are denied. The court will not issue a writ unless at least four justices approve of it. This is called the rule of four. Opinion the statement by a judge or a court of the decision reached in a case tried or argued before it. Remand to send a case back to the court that originally heard it. Unanimous opinion a court opinion or determination on which all judges agree. Majority opinion a court opinion reflecting the views of the majority of the judges. Concurring opinion a separate opinion, prepared by a judge who supports the decision of the majority of the court but who wants to make or clarify a particular point or to voice disapproval of the grounds on which the decision was made. Dissenting opinion a separate opinion in which a judge dissents from (disagree with) the conclusion reached by the majority on the court and expounds his or her own views about the case. Senatorial courtesy In regard to federal district court judgeship nominations, a Senate tradition allowing a senator of the president’s political party to veto a judicial appointment in his or her state simply by indicating that the appointment is personally not acceptable. At that point, the Senate may reject the nomination, or the president may withdraw consideration of the nominee. Judicial Review-- the power of the courts to detemine whether a law or action by the other branches of government is constitutional is known as the power of judicial review. This power of the judiciary enables the judicial branch to act as a check on the other two branches of government, in line with the checks and balances system established by the U.S. Constitution. The power of judicial review is not mentioned in the Constitution, rather it was established by the United States Supreme Court’s decision in Marbury v. Madison. adjudicate Interesting Facts: Each justice has four law clerks, who are typically culled from the best and the brightest graduates from U.S. law schools. Justice Clarence Thomas is often called the “silent justice” because he asks so few questions during oral arguments. Only FOUR American presidents—William Henry Harrison, Zachary Taylor, Andrew Johnson, and Jimmy Carter—appointed no Supreme Court Justices. One former president—William Taft—served on the Supreme Court. Chief Justice William Rehnquist Sixteenth chief justice, appointed in 1986 after 15 years as a strong anchor of the Court’s conservative wing. The Rehnquist Court Liberal/Moderate loose interpretation John Paul Stevens, David Souter, Ruth Bader Ginsburg, Stephen Breyer Swing Votes Sandra Day O’Connor, Anthony Kennedy Conservative—strict interpretation of the Constitution William Rehnquist, Antonin Scalia, Clarence Thomas U.S. Supreme Court http://www.supremecourtus.gov/about/about.html The United States Supreme Court consists of the Chief Justice of the United States and eight associate justices. At its discretion, and within certain guidelines established by Congress, the Supreme Court each year hears a limited number of the cases it is asked to decide. Those cases may begin in the federal or state courts, and they usually involve important questions about the Constitution or federal law. For more information about the Supreme Court, visit http://www.supremecourtus.gov The automated docket system is the Court's case tracking system. It contains information about cases, both pending and decided. The docket provided on this page contains information regarding the status of cases for both the current Term and the prior Term. The Court's Term begins on the first Monday in October and ends on the preceding day the next year. The October Term 2002 begins on October 7, 2002. Information on the docket is updated on the day after an entry is made on the docket. http://www.supremecourthistory.org/myweb/fp/courtlist2.htm List of Presidential Nominees www.cspan.org America and the Courts and other important links www.law.cornell.edu Historic Supreme Court Cases POLITICAL SPECTRUM (political positions) Liberal Moderate Conservative Liberals are most commonly understood to embrace national government solutions to public problems, to believe that the national government should intervene in economy to ensure its health, to support social welfare programs to assist the disadvantaged, and to be tolerant of social change. Often identified with policies supporting women’s rights and civil rights, and opposing increased defense spending. Moderate More individuals are likely to consider themselves moderates than as liberals and conservatives. Middle of the Road—Claim to deal with politics issue-by-issue. Conservatives usually feel that the national government has grown too large, that the private sector needs less interference from the government, that social-welfare programs should be limited, that state and local governments should be able to make their own decisions, and that the nation’s defense should be strengthened. Some conservatives express grave concerns about the decline of family life and traditional values in this country; they would not be tolerant of gay rights laws, for example. Judiciary Assignment 1. How did Alexis de Tocqueville characterized the judicial branch? 2. When a court of law is viewed as a neutral arena in which two parties argue their differences and present their points of view before an impartial arbiter, it is said to be a(n)_______ ___________. 3. As a member of a college or university, if you become involved in litigation as a result of that affiliation, you may become a participant in a(an) ______ _______ _____. It’s when a small number of persons are allowed to represent all other persons similarly situation. 4. Cases which require knowledge of a nonlegal character or the use of techniques not suitable for the court, or are explicitly assigned by the Constitution to Congress or the President are _______ ________. 5. Litigants must have sustained or be in immediate danger of sustaining a direct and substantial injury to have 6. Discuss the major decisions of the Warren and Burger Courts. 7. "Stare decisis" is a judicial term that refers to what? 8. Which court applies military law, separate from the body of law that governs the rest of the federal court system? 9. Which courts regularly employ grand juries? 10. Who is responsible for the appointment of bailiffs, probation officers, U.S. magistrates, and court reporters? 11. What is the job of a "petit jury"? 12. Describe Magistrates: 13. What are the two major forms of jurisdiction? Define. 14. Where are the duties and requirements for federal judges addressed in the Constitution? 15. In relation to the Supreme Court what is likely to happen to the decisions of the Court of Appeals? 16. Where are Civil Rights suits are generally heard? 17. What is that part of civil law which covers the liability of those whose conduct injures others and the compensation they must pay? 18. Except for the few cases that may be taken directly to the Supreme Court, a final decision of a district court may be reviewable by a court of appeals. There are ________ judicial circuits, or courts of appeal. 19. The authority to try all cases that are not within the judicial power granted to the United States Supreme Court is given to what courts? 20. What is the power to release persons from custody if the judge is not satisfied that the person is being constitutional detained? 21. Who handles the job of prosecution? 22. Define "Senatorial courtesy." Discuss the idea of senatorial courtesy and appointing U.S. attorneys. 23. Why are Supreme Court justices appointed for life? 24. The original jurisdiction of the Supreme Court includes all cases affecting whom or what? 25. What is the primary responsibility of prosecutors? 26. Who has the job of appearing for, and representing the United States government before the Supreme Court? What are the fundamental responsibilities of this position? This is also the principle legal guardian in the executive branch of the constitutional prerogatives and powers of the presidency. 27. With what case was the Supreme Court's power of judicial review established? 28. Who represents poor defendants in criminal trials? 29. What corporation supports legal assistance to the poor in civil suits? 30. Who are the key people or organizations in the selection of judges? 31. In McCulloch v. Maryland (1819), the Supreme Court established what principle? c. States cannot interfere with or tax the legitimate activities of the federal government. 32. How many presidential nominees to the Supreme Court who have been rejected by the Senate? 33. The authors contend that the major factor in determining how an individual justice will vote on the cases that come before the court is based on what? 34. Who the first president to appoint a woman to the Supreme Court? Who was the woman? 35. Which Presidents were able to appoint a majority of the federal bench during their tenure of office? 36. Discuss judicial restraint and liberals. 37. The contemporary debate over the Supreme Court's role is really about a proper balance between involves what? 38. Chief Justice Warren Burger's retirement gave President Ronald Reagan the chance to appoint a what type of justice? 39. In 1937, what was President Frank Roosevelt's underlying motive in wanting to change the size of the Supreme court? 40. What is the number of Supreme Court justices that must participate in each decision? 41. How many associate justices sit on the Supreme Court? 42. What is Justice Clarence Thomas’ known for regarding his position on the political spectrum? 43. How many justices are necessary to decide a case? 44. What is the appropriate name for the lead justice? 45. What is the "rule of four"? 46. Define Amicus Curiae: Why would organizations file "amicus curiae" briefs before the Supreme Court has issued a writ of certiorari for a specific case? 47. Name and give the assumed position on the spectrum of all of the sitting justices. 48. In McCulloch v. Maryland (1819), the Supreme Court established what principles? 49. Who is the individual presiding over Supreme Court conferences? 50. What is the most important feature of the Supreme Court opinions? 51. When are concurring opinions are written? 52. When are dissenting opinions are written? The O'Connor Factor Justice Plays Pivotal Role on High Court By Charles Lane Washington Post Staff Writer Monday, February 18, 2002; Page A01 E-Mail This Article Printer-Friendly Version Subscribe to The Post When word got out that Supreme Court Justice Sandra Day O'Connor would be giving a public lecture last fall in Lincoln, Neb., 500 people snapped up every available seat, leaving 100 others to be turned away. The University of Nebraska gave her a medal. Female law students presented a corsage. "If it hadn't been for you paving the road, we wouldn't be here today," Lisa Rasmussen told O'Connor, according to the Daily Nebraskan. More than two decades after President Ronald Reagan made her the first woman on the Supreme Court, O'Connor, 71, may be a bigger celebrity -- and a more powerful influence on American law and society -- than ever before. She has weathered what she has called the "difficult" 2000 election case in which she was one of five Republican-appointed justices to join a much-criticized ruling that sealed President Bush's victory. She has added her voice to those expressing concern that innocent people may be sentenced to death. Favorable reviews are coming in for her muchpublicized new memoir, co-written with her brother, H. Alan Day, about growing up on a remote desert ranch during the 1930s and '40s. And on the most contentious social issues facing American society, she continues to cast what is frequently the deciding vote on a ninemember court often split between liberals and conservatives. On Wednesday, the court hears oral arguments on two such issues -state-funded vouchers for private and parochial school tuition, and a possible ban on the death penalty for mentally retarded capital offenders. And once again, attorneys for both sides will be pitching much of their argument to the tall, silver-haired woman sitting just to Chief Justice William H. Rehnquist's left. So pivotal -- and familiar -- is O'Connor's role that it has become difficult to imagine the court without her, despite rumors, denied by the justice, that she may retire soon. Lately speculation has run in the opposite direction -- that O'Connor could ascend to chief justice if Rehnquist, 77, steps down -- a scenario she also dismisses. O'Connor's power has been accumulated not by asserting an ironclad doctrine for others to follow, but by remaining as noncommittal as possible: Time and again, she has signed on to narrow rulings crafted according to the facts of a particular case, leaving open the option of another incremental holding later on. "The rule of law must also be flexible enough to adapt to different circumstances," she told her Nebraska audience, expressing a precept she had articulated many times in her opinions. "Hers is the power of the median voter," said University of California at Los Angeles law professor Eugene Volokh, a former O'Connor law clerk. "Lawyers target her for the same reason both sides in a political campaign target the center." The question hovering over O'Connor's 21-year career on the court, though, is whether her approach is too much like the political art of compromise she once practiced as majority leader of the Arizona state Senate. By providing only sketchy constitutional guidance to legislatures and lower courts, some lawyers, legal academics and judges say, her restrained jurisprudence lays the basis for legal instability that ultimately must be sorted out by the Supreme Court -- and, in many cases, by O'Connor herself. O'Connor's fellow justice, Antonin Scalia, has published opinions blasting her mode of reasoning, including a 1988 gibe at her "Solomonic" answer to a death penalty case: "Solomon," Scalia wrote, "was not subject to the constitutional constraints of the judicial department of a national government in a federal, democratic system." O'Connor's admirers describe her method as "judicial minimalism." "Clear rules are better; they make the court's own judgments more transparent," Volokh said. "But if a justice is not persuaded the Constitution demands a clear rule, it's her duty to vote for a more factsensitive one." O'Connor, a lifelong Republican, votes more than 80 percent of the time with Rehnquist, a Nixon appointee. She has joined him, Scalia and other conservatives in the court's recent effort to bolster states' rights. But on social issues, she has muted the court's rightward tendencies. Most famously, she voted to uphold the right to abortion enshrined in Roe v. Wade, co-writing the 1992 opinion that barred state laws that impose an "undue burden" on the right to choose. In 2000, she provided the fifth vote for a ruling that struck down Nebraska's ban on what opponents call "partial birth" abortions. Abortion, she recently told NBC's Katie Couric, "is an issue about which people feel passionately, and I'm very much aware of that when we have a case in that area." Certainly, there is little evidence of ideological fervor in O'Connor's personal story. Her childhood was spent among some of the last real cowboys in the West, on the 300-square-mile Lazy B Ranch. Straddling Arizona and New Mexico, the Lazy B had no electricity or running water; as depicted in her memoir, it was a place where individual adaptability and common sense were at a premium, and the social changes linked to the New Deal and World War II made little direct impact. Graduating third in her class (Rehnquist was first) from Stanford Law School in 1952, O'Connor was stunned by law firms' refusal to hire her, but made a career in local government and the Arizona Republican Party. She was appointed to the state Senate in 1969, became majority leader in 1972 and later ran successfully for state trial judge before being elevated to the state appeals court by a Democrat, then-Gov. Bruce Babbitt in 1979. When Reagan offered her the Supreme Court job in 1981, antiabortion groups tried to derail her nomination, citing her opposition as a state senator to certain laws restricting abortion. O'Connor herself has admitted she felt uncertain about her own modest judicial experience. But she was fortified by lessons learned on the Lazy B. It gave her, she recently told C-SPAN interviewer Brain Lamb, "a certain amount of self-confidence in your ability to work things out and not be afraid to tackle something." Today she regularly recruits law clerks who have served both liberal and conservative lower-court judges, relying on them for detailed briefings, oral and written, on each case -- and occasionally treating them to her homemade Tex-Mex cuisine. Both cases before the court on Wednesday show how O'Connor's past rulings set the stage for future cases in which she again plays the potentially deciding role. In the school voucher case, opponents of the program will try to persuade the court that, as practiced in Cleveland, the voucher subsidy gives families no real choice but to spend government money at religious schools, an issue framed in O'Connor's past opinions on the church-state balance. In the death penalty case, Daryl Atkins, convicted of murder in Virginia, asserts that he has an IQ of 65, which qualifies him as moderately retarded under current psychiatric guidelines. His attorneys argue that a national consensus has formed against the death penalty for persons with very limited intellectual abilities, so Atkins's execution would be "cruel and unusual punishment" prohibited by the Eighth Amendment. In 1989, a Texas death-row inmate, Johnny Paul Penry, sought and was denied such a ruling from the Supreme Court. O'Connor's role was decisive. Wrestling with Penry's claim that mentally retarded persons are less able to reason and hence less culpable for their crimes than others, O'Connor wrote that states must give juries a genuine chance to consider mental retardation as a factor weighing against the death penalty. It was an argument repeated by Atkins. This section of O'Connor's opinion, which ordered a new trial for Penry, was joined by liberals such as the late Justices William J. Brennan Jr., Thurgood Marshall and Harry A. Blackmun and John Paul Stevens, who is still on the court. O'Connor, however, concluded that it was not yet clear that all mentally retarded people lacked the reasoning ability ever to warrant capital punishment. And there was insufficient evidence of a national consensus against executing them, she wrote. Only two states with the death penalty had outlawed it. This portion of her opinion was joined by conservatives Rehnquist, Scalia, Anthony M. Kennedy and Byron R. White, who has since retired. Still, O'Connor left the door open. A national consensus, she wrote, "may ultimately find expression in legislation, which is an objective indicator of contemporary values upon which we can rely." "That day has arrived," Atkins's attorneys argue in their brief for the case to be argued Wednesday. They noted that 18 of the 38 states that permit capital punishment now have laws outlawing death sentences for the mentally retarded. When you add the 12 states that do not allow capital punishment at all, they argue, 30 states -- 60 percent of the total -- plus the federal government, forbid the death penalty for retarded offenders. Is 60 percent enough to make for a national consensus? O'Connor's past opinions are suggestive but, characteristically, not definitive on how she might rule. In 1988, when the court voted to strike down the death penalty for 15-year-old murderers, O'Connor supplied the fifth vote -- but did so for reasons that were all her own. In a separate opinion, she noted that 32 of 50 states -- 64 percent -either had no death penalty or had limited it to perpetrators 16 or older. This, she said, created a strong presumption that a national consensus against executing those younger than 16 existed. But more state legislation would be needed to know for sure, because a large minority of states that set no minimum age for the death penalty appeared to permit executing 15-year-olds. O'Connor explained her vote as limited only to situations in which states had specified no minimum age for death penalty. Just a year later, she joined four conservatives in holding that executions for 16- and 17-year-old perpetrators were constitutional. There, she assented to a national-consensus calculus that focused only on the rules in the 37 states that had the death penalty at the time, noting that "a majority of states authorizing capital punishment permit it for defendants 16 and above." And today, a majority of death penalty states still allow sentencing retarded offenders to death. Five of the death penalty states that have banned capital punishment for the retarded passed their laws in the last year, after the Supreme Court's surprising announcement in March 2001 that it would revisit the 1989 Penry ruling in the case of North Carolina death row inmate Ernest McCarver. Legal analysts say that the mere fact that the court agreed to reconsider the subject suggests that change is afoot at the court. O'Connor herself has made two public statements -- to a Minnesota women's lawyers' group in July and again on her October visit to Nebraska -- that seemed to capture national anxiety about administration of the death penalty. "More often than we want to recognize," she said in Nebraska, "some innocent defendants have been convicted and sentenced to death." FDR and the Court-Packing Plan FDR proved to be far more adept at winning electoral victories than achieving his goals in Congress and with the Supreme Court. During his first term, the Court had ruled several New Deal programs unconstitutional, most notably the NRA and the AAA. Only three of the nine justices were sympathetic to the need for emergency measures in the midst of the Depression. Two others were unpredictable, sometimes approving New Deal measures and sometimes opposing them. Four justices were bent on using the Constitution to block Roosevelt’s proposals. All were elderly men and one actually planned to retire in 1932 but remained on the Court because he disliked Roosevelt and feared who the president would appoint. When Congress convened in 1937, the president offered a startling proposal to overcome the Court’s threat to the New Deal. Instead of seeking a constitutional amendment either to limit the Court’s power or to clarify the constitutional issues, FDR chose a clever attack. Declaring the Court was falling behind schedule because of the age of its members, he asked Congress to appoint a new justice for each member of the Court over the age of 70, up to a maximum of six. The plan upset conservatives and liberals alike because they feared that it set a dangerous precedent for the future. During the struggle, several critical events took place. First, the Court approved several controversial New Deal measures. Second, one of the older justices resigned giving FDR the opportunity to make his first appointment to the Court. Finally, the court-packing plan died in the Senate. During the next few years, four more vacancies occurred giving FDR opportunities to appoint distinguished jurists as Hugo Black, William O. Douglas, and Felix Frankfurter to the Supreme Court. President Arthur's Nominees Clifford 12/19/1881 Confirmation or Other Action 12/20/1881 NY 10/30/1829 Hunt 2/24/1882 3/2/1882 D -- -- NY Hunt 3/13/1882 3/27/1882 7/7/1893 11 State Date of Birth Horace Gray MA 3/24/1828 Roscoe Conkling Samuel Blatchford Name Boldface-Chief Justice 3/9/1820 To Date of Replace Appointment Italics-Did not serve °Earlier Court service P-Postponed R-Rejected D-Declined Date Service Ended 9/15/1902 Years of Service 20 W-Withdrawn President Cleveland's Nominees State Date of Birth Lucius Q.C. Lamar MS 9/17/1825 Woods Melville W. Fuller IL 2/11/1833 Waite Name Boldface-Chief Justice Confirmation or Other Action Date Service Ended Years of Service 12/6/1887 1/16/1888 1/23/1893 5 4/30/1888 7/20/1888 7/4/1910 22 To Date of Replace Appointment Italics-Did not serve °Earlier Court service P-Postponed R-Rejected D-Declined W-Withdrawn President Harrison's Nominees Name David J. Brewer Henry B. Brown George Shiras, Jr. Howell E. Jackson Date of State Birth KS MI PA TN 6/20/1837 3/2/1836 1/26/1832 4/8/1832 To Date of Replace Appointment Matthews Miller Bradley Lamar 12/4/1889 12/23/1890 7/19/1892 2/2/1893 Confirmation or Other Action 12/18/1889 12/29/1890 7/26/1892 2/18/1893 Date Service Ended 3/28/1910 5/28/1906 2/23/1903 8/8/1895 Years of Service 20 15 10 2 Confirmation or Other Action Date Service Ended Years of Service President Cleveland's Nominees Name Date of State Birth To Date of Replace Appointment William B. Hornblower NY 5/13/1851 Blatchford 9/19/1893 1/15/1894 R -- -- Wheeler H. Peckham NY 1/1/1833 Blatchford 1/22/1894 2/16/1894 R -- -- Edward D. White LA 11/3/1845 Blatchford 2/19/1894 2/19/1894 12/18/1910 17 Rufus W. Peckham NY Boldface-Chief Justice 11/8/1838 Jackson 12/3/1895 12/9/1895 Italics-Did not serve °Earlier Court service P-Postponed R-Rejected D-Declined 10/24/1909 13 W-Withdrawn President McKinley's Nominees Name State Date of Birth CA 8/10/1843 Joseph McKenna To Date of Replace Appointment Field Confirmation Years Date Service or Other of Ended Action Service 12/16/1897 1/21/1898 1/5/1925 26 President T. Roosevelt's Nominees Name Date of State Birth To Date of Replace Appointment Confirmation Years Date Service or Other of Ended Action Service Oliver W. Holmes Jr. MA 3/8/1841 Gray 12/2/1902 12/4/1902 1/12/1932 29 William R. Day OH 4/17/1849 Shiras 2/19/1903 2/23/1903 11/13/1922 19 William H. Moody MA 12/23/1853 Brown 12/3/1906 12/12/1906 11/20/1910 3 President Taft's Nominees Confirmation Years Date Service or Other of Ended Action Service State Date of Birth To Date of Replace Appointment Horace H. Lurton TN 2/26/1844 Peckham 12/13/1909 12/20/1909 7/12/1914 4 Charles E. Hughes NY 4/11/1862 Brewer 4/25/1910 5/2/1910 6/10/1916 6 Edward D. White° -- -- Fuller 12/12/1910 12/12/1910 5/19/1921 10° Willis Van Devanter WY 4/17/1859 White 12/12/1910 12/15/1910 6/2/1937 26 Joseph R. Lamar GA 10/14/1857 Moody 12/12/1910 12/15/1910 1/2/1916 5 Mahlon Pitney NJ Harlan 2/19/1912 3/13/1912 12/31/1922 10 Name Boldface-Chief Justice 2/5/1858 Italics-Did not serve °Earlier Court service P-Postponed R-Rejected D-Declined W-Withdrawn President Wilson's Nominees Name Date of State Birth James C. McReynolds TN Louis D. Brandeis John H. Clarke 2/3/1862 To Date of Replace Appointment Confirmation Years Date Service or Other of Ended Action Service Lurton 8/19/1914 8/29/1914 1/31/1941 26 MA 11/13/1856 Lamar 1/28/1916 6/1/1916 2/13/1939 22 OH Hughes 7/14/1916 7/24/1916 9/18/1922 6 9/18/1857 President Harding's Nominees Name Date of State Birth To Date of Replace Appointment Confirmation Years Date Service or Other of Ended Action Service 6/30/1921 2/3/1930 8 William H. Taft CT 9/15/1857 White 6/30/1921 George Sutherland UT 3/25/1862 Clarke 9/5/1922 9/5/1922 1/17/1938 15 Pierce Butler MN 3/17/1866 Day 11/23/1922 12/21/1922 11/16/1939 17 Edward T. Sanford TN 7/23/1865 Pitney 1/24/1923 1/29/1923 3/8/1930 7 Boldface-Chief Justice Italics-Did not serve °Earlier Court service P-Postponed R-Rejected D-Declined W-Withdrawn President Coolidge's Nominees Name Date of State Birth Harlan F. Stone To Date of Replace Appointment NY 10/11/1872 McKenna 1/5/1925 Confirmation Years Date Service or Other of Ended Action Service 2/5/1925 7/2/1941 16 President Hoover's Nominees Name State Date of Birth -- -- Charles E. Hughes° To Date of Replace Appointment Taft 2/3/1930 Confirmation Years Date Service or Other of Ended Action Service 2/13/1930 5/30/1941 11° John J. Parker NC 11/20/1885 Sanford 3/21/1930 5/7/1930 R -- -- Owen J. Roberts PA 5/2/1875 Sanford 5/9/1930 5/20/1930 7/31/1945 15 Benjamin N. Cardozo NY 5/24/1870 Holmes 2/15/1932 2/24/1932 7/9/1938 6 Boldface-Chief Justice Italics-Did not serve °Earlier Court service P-Postponed R-Rejected D-Declined W-Withdrawn President Roosevelt's Nominees Name Date of State Birth To Date of Replace Appointment Confirmation Years Date Service or Other of Ended Action Service Stanley F. Reed Van Devanter KY 12/31/1884 Sutherland Felix Frankfurter MA 11/15/1882 Cardozo 1/5/1939 1/17/1939 8/28/1962 23 William O. Douglas CT 10/16/1898 Brandeis 3/20/1939 4/4/1939 11/12/1975 36 Frank Murphy MI 4/13/1890 Butler 1/4/1940 1/15/1940 7/19/1949 9 Harlan F. Stone° -- -- Hughes 6/12/1941 6/27/1941 4/22/1946 5° James F. Byrnes SC 5/2/1879 McReynolds 6/12/1941 6/12/1941 10/3/1942 1 Robert H. Jackson NY 2/13/1892 6/12/1941 7/7/1941 10/9/1954 13 Hugo L. Black AL 2/27/1886 Stone 8/12/1937 8/17/1937 9/17/1971 34 1/15/1938 1/25/1938 2/25/1957 19 Wiley B. Rutledge IA Boldface-Chief Justice 7/20/1894 Byrnes 1/11/1943 2/8/1943 Italics-Did not serve °Earlier Court service P-Postponed R-Rejected D-Declined 9/10/1949 6 W-Withdrawn President Truman's Nominees Name Date of State Birth To Date of Replace Appointment Confirmation Years Date Service or Other of Ended Action Service 9/19/1945 10/13/1958 13 Harold H. Burton OH 6/22/1888 Roberts 9/19/1945 Fred M. Vinson KY 1/22/1890 Stone 6/6/1946 6/20/1946 9/8/1953 7 Tom C. Clark TX 9/23/1899 Murphy 8/2/1949 8/18/1949 6/12/1967 18 Sherman Minton IN 10/20/1890 Rutledge 9/15/1949 10/4/1949 10/15/1956 7 Boldface-Chief Justice Italics-Did not serve °Earlier Court service P-Postponed R-Rejected D-Declined W-Withdrawn President Eisenhower's Nominees Name Date of State Birth To Date of Replace Appointment Confirmation Years Date Service or Other of Ended Action Service 3/1/1954 6/23/1969 15 Earl Warren CA 3/19/1891 Vinson 9/30/1953 John M. Harlan NY 5/20/1899 Jackson 1/10/1955 3/16/1955 9/23/1971 16 William J. Brennan Jr. NJ 4/25/1906 Minton 1/14/1957 3/19/1957 7/20/1990 34 Charles E. Whittaker MO 2/22/1901 Reed 3/2/1957 3/19/1957 3/31/1962 5 Potter Stewart OH 1/23/1915 Burton 1/17/1959 5/5/1959 7/3/1981 22 Boldface-Chief Justice Italics-Did not serve °Earlier Court service P-Postponed R-Rejected D-Declined W-Withdrawn President Kennedy's Nominees Name Date of State Birth To Date of Replace Appointment Byron R. White CO 6/8/1917 Whittaker 3/30/1962 Arthur J. Goldberg IL 8/8/1908 Frankfurter 8/29/1962 Confirmation Years Date Service or Other of Ended Action Service 4/11/1962 3/19/1993 30 9/25/1962 7/25/1965 3 President Johnson's Nominees Name Date of State Birth To Date of Replace Appointment Confirmation Years Date Service or Other of Ended Action Service 8/11/1965 5/14/1969 4 Abe Fortas TN 6/19/1910 Goldberg 7/28/1965 Thurgood Marshall NY 6/2/1908 Clark 6/13/1967 8/30/1967 6/27/1991 24 Abe Fortas TN 6/19/1910 Warren 6/26/1968 10/4/1968 W -- -- Homer Thornberry TX Boldface-Chief Justice 1/9/1909 Fortas 6/26/1968 No action Italics-Did not serve °Earlier Court service P-Postponed R-Rejected D-Declined -- -- W-Withdrawn President Nixon's Nominees Date of Birth Warren E. Burger VA 9/17/1907 Warren 5/21/1969 Clement Haynesworth Jr. SC 10/30/1912 Fortas 8/18/1969 11/21/1969 R -- -- G. Harold Carswell FL 12/22/1919 Fortas 1/19/1970 4/8/1970 R -- -- Harry A. Blackmun MN 11/12/1908 Fortas 4/14/1970 5/12/1970 7/29/1994 24 Lewis F. Powell, Jr. VA 9/19/1907 Black 10/21/1971 12/6/1971 6/26/1987 16 William H. Rehnquist AZ 10/1/1924 Harlan 10/21/1971 12/10/1971 Sitting -- Boldface-Chief Justice To Date of Replace Appointment Confirmation Years Date Service or Other of Ended Action Service 6/9/1969 9/26/1986 17 State Name Italics-Did not serve °Earlier Court service P-Postponed R-Rejected D-Declined W-Withdrawn President Ford's Nominees Name Date of State Birth John Paul Stevens IL 4/20/1920 To Date of Replace Appointment Douglas Confirmation or Other Action Date Service Ended Years of Service 12/17/1975 Sitting -- Confirmation or Other Action Date Service Ended Years of Service 11/28/1975 President Reagan's Nominees Name Date of State Birth Sandra Day O'Connor To Date of Replace Appointment AZ 3/26/1930 Stewart 8/19/1981 9/21/1981 Sitting -- William H. Rehnquist ° -- -- Burger 6/20/1986 9/17/1986 Sitting -- Antonin Scalia VA 3/11/1936 Rehnquist 6/24/1986 9/17/1986 Sitting -- Robert H. Bork DC 3/1/1927 Powell 7/1/1987 10/23/1987 R -- -- Douglas Ginsburg IL 5/25/46 Powell 10/27/87 11/7/87 W -- -- Anthony M. Kennedy CA 7/23/1936 Powell 11/30/1987 2/3/1988 Sitting -- Boldface-Chief Justice Italics-Did not serve °Earlier Court service P-Postponed R-Rejected President Bush's Nominees D-Declined W-Withdrawn Name Date of State Birth To Date of Replace Appointment David H. Souter NH 9/17/1939 Clarence Thomas VA 6/23/1948 Marshall, T. Brennan 7/23/1990 Confirmation Years Date Service or Other of Ended Action Service 10/2/1990 Sitting -- 7/1/1991 10/15/1991 Sitting -- President Clinton's Nominees Name Date of State Birth To Date of Replace Appointment Confirmation Years Date Service or Other of Ended Action Service Ruth Bader Ginsburg NY 3/15/1933 White, B. 6/14/1993 8/3/1993 Sitting -- Stephen G. Breyer MA 8/15/1938 Blackmun 5/13/1994 7/29/1994 Sitting -- Boldface-Chief Justice Italics-Did not serve °Earlier Court service P-Postponed R-Rejected D-Declined W-Withdrawn Introduction The curriculum unit presented will examine and analyze some of the major the decisions of the Warren Court, which dominated American politics to varying degrees from 1953-1969. Teachers will find this unit helpful when examining the Constitution as part of a civics course or chronologically, when studying United States History II. In the past some of the Courts exerted relatively little influence over constitutional history. As a matter of fact, their decisions had little precedential value. However, that was not the case with the Warren Court. Many people have at least heard of the phrase the Warren Court, but how many people have heard of the Vinson Court or even the Rehnquist Court? The Warren Court decided a number of important constitutional issues during its time and those decisions continue to influence our daily lives. (Urofsky 253) It is not unusual for the Supreme Court to take on the personality and views of its Chief Justice, and such was the case with Earl Warren. Warren was appointed Chief Justice in 1953 by President Eisenhower. It has been suggested that during his 16-year tenure, he was one of the most influential advocates for social progress in the United States. During his term he dealt with controversial cases on civil rights and civil liberties and the very nature of the political system. According to Lucas Powe in The Warren Court and American Politics, the Warren Court “created the image of the Supreme Court as a revolutionary body, a powerful force for social change.” Teachers should point out to students that the Supreme Court has been viewed in the same way at other times in history. Students might be assigned the task of researching other Supreme Courts that have been categorized as activist courts. In 1953 few Americans would have realized that the Warren Court would be classified as the greatest liberal Court in the twentieth century. Powe breaks down the years of the Warren Court into three categories. From 1953-1956 much of the time of the Court was spent on school desegregation cases. The years 1957-1961 were characterized as a stalemate when few controversial cases were heard. The years 19621968 are often referred to as the “heyday of the Warren Court” when it moved in an aggressively liberal direction on numerous constitutional issues ranging from racial to civil rights, to legislative apportionment, to church state relations, to freedom of speech, to criminal justice. It should be pointed out that liberals did not hold a majority on the Supreme Court until 1962. At this time Justice Felix Frankfurter retired and was replaced by Arthur Goldberg, a Kennedy appointment. According to Peter Irons in A People’s History of the Supreme Court, this was the Court that “liberals cheered and conservatives booed.” Remind students that the Supreme Court does not really work in a vacuum; its decisions on important constitutional questions can only be fully understood when viewed against the background of history and politics. Precedents are usually broken when society demands that they should be broken and sometimes society can be divided on a variety of issues. I think the present day is a great example of a society that is polarized on a variety of topics. Teachers might assign students to research a present day issue on which people strongly agree or disagree. Topics like late term abortion and affirmative action are a couple of possibilities. Ask students to write a persuasive essay using a minimum of three sources that support their own point of view on the topic. As Professor Irons states, “the justices are not simply black robed repositories of objective wisdom, but rather are influenced by politics, by society, each bringing to the Court their individual legal philosophies and moral attitudes that come out of his or her background.” Ask students what they think Irons meant by this statement? Do they think that the present Supreme Court is influenced by public opinion? Ask students to consider the recent cases in front of the U.S. Supreme Court. Teachers might assign interested students the task of researching the case Elk Grove Unified District v. Newdow which deals with whether or not the words” under God” should be kept in the Pledge of Allegiance. As one can imagine, from 1954 on, many members of Congress criticized the Supreme Court for its controversial decisions. Students should be able to adequately explain the system of separation of powers as well as the system of checks and balances. Teachers might consider this an appropriate time to review with students the reasons the Founding Fathers were concerned with balancing the three branches of government. Teachers might want to assign students the task of researching any present day conflict between Congress and the courts. Students might be interested in the present day conflicts over legalizing gay marriage, especially in light of the court decision in Massachusetts. Ask students if they believe the court often deals with problems that the legislature seems to conveniently avoid. Does the Supreme Court really stand outside of American politics or is it in fact a part of it? Does judicial independence actually exist or is it just a myth? These are questions that teachers should be addressing in the classroom that I believe will create engaging discussions. Are we creatures of nature or nurture? Aren’t we all influenced by our background and experiences that help to shape our personalities? So why should the “nine men and women in black” be any different? Ask students to consider their own qualities. Why do they think they are the way they are? Are they similar in nature and outlook to other members of their family and if so why do they think this is the case? Three objectives will be addressed in this unit. First, the background of Chief Justice Earl Warren will be examined. Students will understand how your background and life experiences can often times reflect on behavior and attitudes in later life. What experiences in the life of Earl Warren might have influenced his decisions on the Supreme Court? What in his background might account for his viewpoints about life and the law? These are questions that will be discussed in this objective and can also provide for some very stimulating classroom discussions. The second objective to be considered is to have students trace and understand the development of the Brown I case and Brown II case. Students should be reminded that Brown v. the Board of Education did not just appear out of nowhere. According to Morton Horwitz in The Warren Court and the Pursuit of Justice “…the stage was already set for Brown by earlier struggles over racial segregation.” These earlier struggles will be examined in this unit so that students can understand that this was not an overnight journey, but a long road. Teachers might wish to discuss some of the earlier cases that began to set the stage for the Brown case. Such cases dealt with the idea of an unequal education. These include cases such as Sweatt v. Painter 1950, and McLaurin v. Oklahoma Board of Regents 1950. The third objective of this unit is to have students analyze and understand those cases that affected criminal procedure. Most of the cases to be examined occurred between the years 1961 and 1968. The Warren Court is well known for its active defense of the rights of people accused of crimes and teachers will be able to engage students in spirited discussions on topics that involve our individual rights. Cases to be studied for this objective will include Gideon v. Wainwiright 1963, Escobedo v. Illinois 1964, Miranda v. Arizona 1966, and In Re Gault, 1967. Teachers not only will be provided with the background of these cases, but also with the decision of each case. Students usually show great interest in the topic of individual rights. Teachers should point out that these were bold decisions for the times, especially the decision in the Miranda case. According to Ed Cray in A Biography of Earl Warren,” the Miranda decision imposed limits on police interrogation that no state had even mentioned.” As with all decisions that seemed extreme, the outcry from the public and the police was very vocal. Calls for Warren’s impeachment were heard around the country, mostly from the John Birch society. Teachers might assign students to investigate the John Birch Society. What type of organization was it? What were its goals? Why was this organization calling for the impeachment of Warren? Teachers should be able to easily engage students on the topic of police procedure. When discussing the Miranda case and the Escobedo case ask students if they feel the Court was justified in these decisions. Do they believe that accused people have too many protections as a result of theses two cases? What do they think should happen if they know someone is guilty or even confessed to a crime, yet the proper police procedure was not followed? For many students this creates a dilemma and allows the teacher to direct the class in a very engaging discussion. It has been thirty-eight years since the Miranda decision was handed down and it remains in the view of many as the Supreme Court’s most contentious criminal procedure ruling. The Court has revisited this ruling nearly fifty times, expanding and clarifying the right and establishing exceptions that allow police to use some confessions even if a proper warning was not given. Teachers might wish to assign students the task of researching some of the Supreme Court cases that have modified some of the earlier decisions on police procedure. Cases that students might consider for further examination include Harris v. New York, 1971, Michigan v. Tucker, 1974, Edwards v. Arizona, 1981, New York v. Quarles, 1984, Oregon v. Elstad, 1985, Minnick v. Mississippi 1990, and Dickerson v. United States, 2000. Students should be able to explain the facts of these cases as well as the decisions. Ask students if they feel modifications were made because of changing societal values. Consider then if the Supreme Court adjusts its views to match those of society or is it truly an independent body? A separate category for juvenile procedure will be considered by examining the case of In Re Gault 1967. According to Edward Cray, Warren had a genuine respect for young people and their concerns and felt the need to extend the Bill of Rights even to the youngest Americans. Students usually find the facts of this case especially appealing. Teachers should compare and contrast the criminal procedures in an adult and a juvenile court system. Ask students if they feel any special preference should be given to a juvenile. What do students believe should be the main goal of each system? Ask students what rights Gerald Gault would have had in 1966 if he were treated like an adult offender. Justice Fortas was especially concerned about the rights or non-rights of juveniles. According to Laura Kalman in Abe Fortas, he referred to some juvenile procedure as the” never never land” of juvenile justice. (Kalman 251) Ask students what they think he meant by this statement. Objectives and Strategies The first objective is to examine the background of Chief Justice Earl Warren who sat on the Supreme Court from 1953-1969.He was born on March 19, 1891 in Los Angeles, California; however, he grew up in Bakersfield. His parents were Scandinavians who had emigrated to the U.S. as young children. His mother Christine Hernlund came from Sweden, his father Methias Varan from Norway. Earl’s uncle changed the family name to Warren after they settled in the United States. Teachers might ask students why his uncle might have changed the family Suggest to students that sometimes immigrants changed their surnames to be more American. According to Christine Compton in Earl Warren, Justice for All, Earl’s parents were eager to take advantage of the opportunities in America. His father worked as a car repairman for the Southern Pacific Railroad, but lost his job in 1894 after joining the famous Pullman strike. As a young boy Earl worked for the Southern Pacific Railroad as a callboy for the train and engine crew. As he explains in his memoirs, the money he made was his to keep and to save for his future. According to Warren he was often embarrassed when people tried to suggest that he worked his way through school and supported the family. While it was true that he held many odd jobs, Warren emphatically states that the money he made did not support his family. (Warren 23) According to Morton J. Horwitz in The Warren Court and the Pursuit of Justice, Warren experienced firsthand while working on the railroad the inequality of power between large corporations and vulnerable and unorganized workers. (Horwitz 6) Teachers might engage students in a discussion on how early experiences might shape a person’s belief in later life. Ask students if they have any memories of significant events in their early lives that they believe might have helped to shape their personality today. Students might also be encouraged to ask their parents and relatives about their early childhood experiences. Have these experiences had any impact on their lives? The Warrens were very private people and were reluctant to show their feelings. According to Christine Compton in Earl Warren, Justice For All, Earl maintained this reserve throughout his entire life as a public servant. Warren attended the University of California at Berkeley and its law school, Boalt Hall. He served briefly in the army during World War I and then joined the district attorney’s office in Alameda County for what he thought would be a short term. He ended up staying for 18 years, 13 of them as district attorney where ironically he had probably slighted the rights of the accused. Although his intellect was never really praised he was notable for being warm, sincere, outgoing, honest and hardworking. (Powe 24) He proved to be an effective as well as a tough prosecutor, but showed his philosophy of fairness by fighting for a public defender’s office for indigents. A 1932 survey listed Warren as the best district attorney in the United States, a fact often ignored by those who accused him later in life as being “soft on crime”. (Urofsky 32) Teachers should ask students if they understand the expression “soft on crime.” Have they heard any one in recent times accused of being “soft on crime”? Such a phrase is popularly used especially during election years. Teachers should ask students to watch for examples of elected officials who have been labeled as such. They might want to research the 1988 presidential campaign in which the name of Willie Horton became a household phrase when considering a candidate who might be labeled “soft on crime” In 1938 Warren ran successfully for attorney general of California. Warren is remembered most for his role in demanding the relocation and evacuation of the Japanese from the west coast during World War II. Though his actions seemed inconsistent with his future decisions while on the Supreme Court, Warren maintained that at the time it seemed like the right thing to do. He later acknowledged in his memoirs that he deeply regretted his action in favor of internment. (Warren 147) Students should be reminded that during World War II Japanese Americans were locked up in U.S. internment camps. For them, the war was a daily struggle to maintain their dignity in the face of an injustice. Many young men escaped the camps by volunteering for military service. Teachers might engage students in a lively discussion by asking them to take a point of view concerning the internment. Divide students into groups and have them debate the two different points of view. First, the Japanese internment was necessary for the national defense of America during World War II or second, the Japanese American internment was an unnecessary and a racist act. Warren also served three terms as governor of California. The popular candidate easily won the election for the first time in 1942, being considered a nonpartisan Republican. Teachers should ask students if they understand the term non-partisan. Do they think politics today is non-partisan? Students should be encouraged to bring in examples of programs or laws that have been recently passed that have had the support of both the Democratic and Republican parties in Congress. In 1952 Warren played a key role in the election of Dwight Eisenhower to the presidency of the United States. Warren agreed to end his own political ambitions to be president and throw his support behind Dwight D. Eisenhower. In return Eisenhower promised to appoint Warren to the United States Supreme Court. Warren had campaigned for Eisenhower bringing both Republican and Democratic support from the state of California. Warren had been such a popular govenor that he had previously won the support in both the Democratic and Republican primaries. It is believed that as a result of his support for the candidate Eisenhower, Warren was promised the first vacancy on the Supreme Court. Ask students if they feel this is part of a spoils system. Remind students that this system was one in which faithful political supporters were rewarded government jobs. Do the students believe this is a fair practice? What if a person is truly qualified for the appointment? Should that person be penalized because they also happen to support the winning candidate? Warren had actually been willing to serve as U.S. Solicitor General until he felt better prepared to sit in the Supreme Court. Howwitz suggests that Warren knew he was not yet ready to sit on the Supreme Court because the atmosphere of the court was”intellectually high powered.” (Horwitz 7) As a result of the unexpected death of the present Chief Justice Fred Vinson, Warren was appointed before he could become Solicitor General. It has been suggested that Eisenhower tried to go back on his promise of a Court seat for Warren especially since the first vacant seat was that of Chief Justice. (Howitz 8) Teachers should ask students why they think Eisenhower was trying to back out of his promise. What was there about Warren that might have troubled Eisenhower? Was it that he was not considered an intellectual heavy weight? What qualities do they think are necessary to be a judge? Is legal brilliance really necessary and what role do the law clerks play in helping a justice research a case? Ask students also to consider what was it about Warren that have many legal historians considering him to be rated as one of the greatest Chief Justices in the Court’s history. According to Bernard Schwartz in A History of the Supreme Court “there have been scholars and there have been great justices on the Supreme Court. But the scholars have not always been great justices and the great justices have not always been scholars.” (Schwartz 265) Ask students what Schwartz meant by this statement. Do they believe that scholarship is necessary for excellent leadership? Warren clearly was not the most scholarly justice on the Court; however, his leadership abilities and skill as a statesman enabled him to be an extremely effective Chief Justice. Students interested in the other Chief Justices of the Supreme Court might want to research others who were not considered to be the most scholarly member of the Court, but clearly excelled at leading the Court in the direction they wanted to go in. The Chief Justice occupies the center seat on the Court, and while his or her vote is no greater than any other, the Chief presides over the oral arguments as well as the conferences at which the justices decide cases. The Chief Justice also has the power to assign the writing of opinions. A strong Chief Justice can have a major impact on the work of the Court while a weak Chief Justice can find himself overpowered by his strong colleagues and end up presiding over a judicial battlefield. The second objective to be considered is to have students trace and understand the development of the Brown I case and Brown II case. On May 17, 1954 Earl Warren had been sitting on the Court as Chief Justice for only a year when the Brown v the Board of Education decision was handed down. The nine justices of the Supreme Court agreed that “in the field of public education the doctrine of separate but equal has no place” Writing for the Court Chief Justice Warren concluded that “in the field of public education the doctrine of separate but equal has no place.” According to Lucas Powe, Warren had done what Chief Justices have done since John Marshall. When a controversial case is being decided where the prestige of the Court is on the line, the Court speaks through the Chief Justice. (Powe 27) The Court had just struck down more than a half century of constitutional law stemming from the decision put forth by Plessy v. Ferguson, 1896 where “separate but equal” was legal. By putting his name on the opinion, the Chief Justice put the prestige of the Court on the line. The character of the Court was beginning to take shape, as Warren was able to maneuver a unanimous decision. Where had it all begun? Before examining the Brown case teachers will need to explain the origin of the phrase “separate but equal”. Encourage interested students to research the arguments and decisions presented in the case Plessy v. Ferguson, 1896. Students should be assigned the task of writing a brief or creating a dramatization in which small groups of students present each side of the argument to their classmates. Explain to students that this case arose out of a carefully planned strategy to test the legality of a Louisiana state law. This law gave constitutional sanction to virtually all forms of segregation in the United States until after World War II. In September 1891, “elite persons of color” in New Orleans formed the Citizens Committee to test the constitutionality of the separate railroad car law for blacks and whites. The committee raised three thousand dollars for the cost of a test case. The attorney who agreed to take this case was a white man by the name of Albion Tourgee. He was considered to be one of the nation’s leading advisors for African American rights. Tell students that Tourgee agreed to work on this case without pay. Students might be interested in researching any present day civil rights cases where the attorneys have agreed to work for no fee. Ask students to consider the effect that “free” publicity might have on a present day case as compared to the year 1892. Ask students to consider the various types of media that exist today that did not exist in the time of Tourgee. The case of Plessy v. Ferguson, 1896 It all began in June, 1882, when Homer Plessy, a black man purchased a first class ticket on the East Louisiana Railroad and sat down in a car reserved for whites. When he was asked to move to the car where blacks were restricted, he refused. Subsequently, he was arrested and arraigned before Judge John Ferguson. Plessy then sued to prevent Ferguson from conducting any further proceedings against him. Eventually his challenge reached the United States Supreme Court. Before the Court, Tourgee argued that segregation violated the Thirteenth Amendment’s prohibition of involuntary servitude and denied blacks equal protection of the laws, which was guaranteed by the Fourteenth Amendment. These amendments along with the Declaration of Independence, gave Americans affirmative rights against discrimination. The lawyers for the Louisiana railroad disagreed. They argued that the separate facilities for black passengers were just as good as the facilities for the white passengers. The Supreme Court sided with the railroad and ruled that the separation of the races in pubic accommodations was legal and did not violate the Fourteenth Amendment. The decision established the doctrine of “separate but equal” which allowed the states to maintain separate facilities for blacks and whites so long as they provided equal service. In other words,” if the cars for blacks were of equal quality to those enjoyed by white passengers,” the Court said, then the demands of the Constitution had been satisfied and the rights of black people had not been violated. The vote in this case was 8 to 1 with Justice Henry Brown writing the majority decision and Justice John Marshall Harlan writing the dissenting opinion. In his decision Justice Brown wrote “…if one race is considered to be inferior to the other socially, the Constitution of the United States cannot put them on the same plane…” Ask students to interpret the words of Justice Brown. This case left the door wide open for the many Jim Crow laws that were passed that segregated the races in just about every public facility. Students should be encouraged to research the origin of Jim Crow and report back to the class. Only one Justice dissented in this case. Justice John Marshall Harlan wrote “…The thin disguise of equal accommodations for passengers in railroad coaches will not mislead anyone or atone for the wrong this day done…” Harlan added,”what can more certainly arouse hate, what can more certainly create and perpetuate a feeling of distrust between these races than state enactment which in fact proceed on the grounds that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens…” Ask students to interpret the words of Harlan. Do they agree with him? Tell students that more than five decades would pass before the Supreme Court would reverse this decision and the South would build a legal system rooted in social segregation. Plessy left racial attitudes to the states; something that the southern states embraced as an old fashioned state’s rights issue. Social equality became unattainable as Plessy denied that law could change attitudes. Tell students that by 1899 blacks and whites were separated in schools, restaurants, in restrooms, at drinking fountains, hospitals, and even cemeteries, as Jim Crow began to show its ugly head. The rights of the Thirteenth, Fourteenth, and Fifteenth Amendments, as well as the Civil Rights Act of 1876 were ignored when it came to African-American citizens. Teachers might want to assign students the task of researching the content of the stated Amendments and Act and have the students report back to the class. Teachers should tell students to imagine being unable to attend the school of their choice because of their race or being forced to attend a school with inferior facilities. How do they think they would feel or react? This was the situation that African Americans, especially in the South were faced with every day of their lives. Background to Brown v. the Board of Education, 1954 The road to Brown v. the Board of Education began with decisions that chipped away at the segregationist’s tenets of Plessy v. Ferguson. The NAACP had been fighting the battle of racial segregation since 1909. One influential figure in this campaign was a brilliant Howard University professor named Charles Hamilton Houston. Houston served as chief counsel for the NAACP from 1934-1938. In deciding the legal strategy he considered the blatant inequality between the separate schools that many states provided for the two races. It was not uncommon for states to spend ten times as much money educating a white child as it did educating a black child. It was to this injustice that Howard chose to focus his energy and the limited resources of the organization. For help, Howard recruited some of his most able law students to prepare a battery of cases to take before the Supreme Court. In 1938 he placed his team under the direction of a young lawyer named Thurgood Marshall. Over the next 23 years Marshall and his NAACP lawyers would win many cases involving segregation. Interested students should be assigned to research the life of Thurgood Marshall. Have them find obituaries in national news magazines such as Time, Newsweek, etc. Then ask them to summarize the obituaries for the rest of the class. Several of the cases that Marshall and his team won became legal milestones towards the Brown decision. One of the first challenges came in 1938 when the Court ordered that a black student, Lloyd Gaines be admitted to an all-white law school at the University of Missouri. Missouri had no law school for African Americans. The state’s offer to pay for the tuition of Gaines to attend an out of state law school was unacceptable because Gaines was a citizen of Missouri and planned to open a law practice in that state. (Goode 35) A similar challenge arose in 1950 in the case Sweatt v. Painter. Mr. Sweatt had been denied admission to the University of Texas law school solely on the basis of race. The law school had denied him admission because the educational facilities had been made available to blacks at a recently established law school in Texas. The Supreme Court agreed unanimously that the Texas law school for whites was far superior. In his written decision Chief Justice Vinson stated “Texas law schools for whites offered a far greater degree of those qualities which are incapable of objective measurement, but which make for greatness in a law school. These qualities were reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions, and prestige.” The Texas law school had none of these qualities and the Court ordered the white law school to admit Mr. Sweatt. The decision in this case upheld the plaintiff’s complaint that the Texas Law School for blacks could not be held to the same high standards as the white Texas Law School. This decision did not override” separate but equal”, but it challenged it. Interested students should be assigned the task of investigating in more detail the facts of this case and offer then to the rest of the class. Why do they think Marshall started his challenges with graduate schools rather than high schools or elementary schools? By July 28, 1947 Houston and Marshall were ready to bring the challenge of racial segregation from the graduate school level to the public school level. Between the years 1947 and 1954 there were five cases that challenged racial segregation in public schools. These cases came from four different states and the District of Columbia. A good overview of this situation may be presented by having students view the film Separate but Equal starring Sydney Poitier. This film is an extremely factual account of Thurgood Marshall’s campaign against segregated schools in the South. It shows how he had to convince the NAACP lawyers to support the lawsuits of these parents suing their respective states and the District of Columbia for fair and equal treatment. It was not easy to convince parents to be plaintiffs in lawsuits challenging the segregation laws. Ask students what do they think would be some of the fears of these African-American parents. Why would they be reluctant to put their name on a lawsuit? The Court lumped the cases together in a single ruling named for the case concerning nine-year-old Linda Brown. Her father, Oliver Brown, had charged the Board of Education in Topeka Kansas with violating Linda’s rights by denying her admission to an all white elementary school four blocks from her home. The state had directed that Linda attend the all black elementary school, which was much farther away. As a matter of fact, Linda would have to cross a railroad yard and then take a bus to the school located 21 blocks from her home. Parents in the other three states were also outraged. Harry Briggs of Clarendon, South Carolina was incensed that his five children had to attend schools that operated on one fourth the amount of money given to white schools. (Irons 383) Ethel Belton took her complaints to the Delaware Board of Education when her children were forced to ride a bus for nearly two hours each day instead of walking to the school nearest their home. In Farmville, Virginia 16-year-old Barbara Johns led her fellow students on a strike for a better school. All over the country, black students and parents were angered over the conditions of their schools. NAACP lawyers studied their grievances and decided it was not enough to keep fighting for equal facilities, but rather they wanted all schools integrated. It seemed as if the time was now right for the Supreme Court to finally revisit the “separate but equal ruling” that had been the law for over fifty years. The case of Brown v. the Board of Education, Topeka Kansas, 1954 The Brown case first came before the Supreme Court during the 1952 term when Fred Vinson was the Chief Justice. This case was actually a collection of five cases from four states and the District of Columbia. Court scheduling put the Brown case before Briggs on the Supreme Court docket when the five cases were combined for argument and decision The five cases included Gebhart v. Belton, (Delaware) Brown v. Board of Education, (Kansas) Briggs v. Elliott, (South Carolina) Davis v. County School Board of Prince Edward County (Virginia) and Bolling v. Sharpe (District of Columbia) The Court heard them all together under the name of Brown because they all dealt with the same issue of racially segregated schools. Teachers might want to divide the class into four groups. Assign each group one of the above cases. Have the students research the facts of each case and report their findings back to the entire class There were probably five justices leaning toward overruling Plessy after the first argument, but the remaining four justices Vinson, Reed, Jackson, and Clark seemed far away from agreeing. Justice Frankfurter succeeded in postponing the case until the next term by requesting reargument “specifically directed to the question of the historical scope of the Fourteenth Amendment.” The reasoning was that maybe a delay would help and it did. (Horwitz 12) On September 8, 1953, Vinson died of a heart attack. This was, Frankfurter commented privately to his law clerks, “the first indication that I have ever had that there is a God.”(Powe 24) With the death of Chief Justice Vinson, a vacancy now had to be filled on the Supreme Court. Although he scarcely knew him President Eisenhower, prior to being elected President had promised the first opening on the Supreme Court to Earl Warren. Warren had been responsible for delivering the support of the Republican delegates to Eisenhower at the National Convention. What role would the new Chief play in the Brown decision? As it soon became apparent, Warren was able to use his skills of governing to steer the decision of the Court to overturn the Plessy decision. No one praised Warren for his strong intellect, but almost everyone acknowledged his warmth and sincerity, his principles and strong work ethic. He was admired for his moral leadership. As governor he learned the philosophy of governing. (Powe 190) Warren, as well as Frankfurter was concerned over the necessity of having a unanimous decision in such an important case. Frankfurter was anxious over the prestige of the Court. According to Powe the oral arguments in the Brown case should debunk any notion that it was an easy decision to gain unanimity. Frankfurter was noted as saying…”you do not argue for ten hours a question that is self-evident…” Once Warren took over he requested that the justices take no vote and avoid a hard-line decision, until discussion had taken place in Conference.” The Court was thoroughly conscious of the importance of the decision to be arrived at and the impact it would have on the nation and we realized the necessity for secrecy and for achieving unanimity… (Warren 282). It was clear from the outset that Brown case had the five necessary votes to overturn Plessy, but that is not the route that Warren wanted to travel. There are many stories about how Chief Justice Warren patiently brought Justices Reed, Jackson, and Clark aboard. I am sure his personality played a role in convincing some of these justices. He has been described as having warmth, sincerity, strong principles and the ability to provide moral leadership. In a manner that was to become his judicial trademark, Warren immediately framed the question before the Court as a moral issue. (Horwitz 24) The decision itself was short, only eleven pages. Warren wanted it this way. As a former politician he knew the importance of getting his message across and a short decision could be printed in the newspaper in its entirety. (Powe 29) Students should be encouraged to research Warren’s role in securing a unanimous decision. Students should present their findings to the class. Students should also be encouraged to research the arguments presented to the Court by Attorney Thurgood Marshall. Marshall’s argument rested on the psychological effects of segregation. He produced expert testimony demonstrating that segregation lowers the esteem of African American children, thus segregation violated the equal protection clause of the Fourteenth Amendment. The decision was read in Court by the Chief Justice which said in part, “…to separate those children from others of similar age and qualification solely because of their race generates a feeling of inferiority as to their status in the community that may affect the hearts and minds in a way unlikely ever to be undone…Separate educational facilities are inherently unequal…Any language in Plessy v. Ferguson contrary to these findings is rejected.” Warren was careful in his decision not to place blame on any group for the years of discrimination. Ask students if they feel that the Warren Court should have gone further in its decision and remarked about the inequity of the schools or the years that African-American children were made to feel inferior to white children. Do they believe it is up to the Supreme Court to lay blame or should citizens as a whole step up to the plate and take responsibility for their own actions. Students might be interested in researching the headlines in southern and northern newspapers of the time. Do they see any difference in the attitudes of the southerners or the northerners in their reactions to the decision of the Supreme Court and if so, why do they think that was the case? One of the dominant southern themes concerning this decision was that instead of applying the law, the Court had imposed its will. Some critics especially southern Senators even accused the Warren Court of being a lawless Court. Ask students if they believe the Court has the right to impose morality on the people. Remind them that the Supreme Court has no direct responsibility to the people of the United States and that they are not accountable to any electorate. Shouldn’t Congress be the branch to pass a law dealing with segregated schools? Remind students that southern Democrats who were virtually responsible to an all white electorate dominated Congress in 1950. There was no way they were about to pass a law dealing with segregated schools. Tell students that Justice Jackson addressed this question in his unpublished opinion. “The Constitution must be interpreted in light of current conditions to accommodate current needs.” Jackson went on to say”…I suppose that the reason this case is here is that action couldn’t be obtained from Congress” The Brown II case In May 1955 the Supreme Court handed down the implementation decision that came to be known as Brown II. Again it was unanimous. The crucial phrase in the “all deliberate speed” belonged to Justice Frankfurter who had borrowed the phrase from an opinion of Justice Oliver Wendell Holmes. (Simon 224) This phrase was a signal from the Court that they understood the South’s dilemma in implementing such a decision and they would be given time. But how much time? Maybe the Supreme Court was being too optimistic and assumed that the Brown decision would lead to prompt desegregation of schools. Remind students that states considered to be in the upper south, Maryland, West Virginia, Kentucky, Missouri, and Oklahoma took steps to comply with the “new law of the land” So did the western states that had permitted segregation. But Virginia and the Deep South held back. Exactly what does the phrase “with all deliberate speed” mean? Students often engage in a lively discussion of this topic. If I say to my students that they have an important research project to hand in that will make up a large percentage of their grade, they would naturally be quite anxious over when it is exactly due. If I said to them that they were to work on this with “all deliberate speed” they would probably react with the question- exactly what do you mean by “with all deliberate speed”? Does that mean we can hand it in whenever were are finished or is there an exact date this paper is due? Is it to be on my time schedule or your time schedule? What do you mean? And herein lays the problem with Brown II. It was left up to the states to decide when they would begin to enforce the Court’s ruling. Some of the southern states were resisting because they felt they had the right to impose their own social order. Even President Eisenhower was reluctant to take sides in the desegregation battle. He believed that voluntary action by southern states, rather than federal force would lead to the quickest progress with the fewest problems. (Powe 36) As time went on problems erupted. Calls for massive resistance were heard from Mississippians to resist integration and preserve all white schools. Violence broke out and membership in the Ku Klux Klan increased. Lynching of African-Americans was on the rise, the murder of a young teenage boy in Mississippi, Emmett Till occurred and rioting took place at the University of Mississippi when an African-American student, Autherine Lucy was admitted. In 1956, one hundred southern members of Congress signed the Southern Manifesto denouncing the decision of the Supreme Court as a clear use of judicial power and urged the states to use all lawful means to defy it. Citing the state rights interpretation of the Constitution, Mississippi, Alabama, Georgia, and Florida declared the Brown decision null and void. Now what! Teachers should engage students in discussion on what should have been done next. Ask students if they believe the Supreme Court overstepped its authority? Do they have the right to make laws when the federal law conflicts with state laws or must the states always bow to the decisions of the federal courts? How do they think the struggle for school desegregation between 1954 and 1957 might have been different if the federal government had acted more forcefully? Many of the students at Wilbur Cross High School have relatives who are from the South. Teachers should assign students the task of interviewing their grandparents, great aunts and great uncles to find out what it was like for them living in a southern state during this time. Tell them they will be conducting an oral history. Encourage them to video or tape their conversations and bring them in to share with the class. Students often tell me that their grandparents never shared this information with them until they actually sat down with them and showed their interest by asking questions. This activity brings this time period in history closer to home for many of our students and makes history come alive. Many people feel that the Brown II “all deliberate speed” formula failed. They point to what happened at Central High School in Little Rock, Arkansas as an example. In the summer of 1957 two years after the Brown II decision the city of Little Rock made plans to desegregate its public schools. Its school board had voted unanimously for a plan starting the desegregation of the high school to be followed in 1958 by the middle and elementary schools. But the smooth transition to the school’s integration was not to be. The Ernest Green Story is a dramatic recreation of this event. It examines the desegregation of Central High School and at the same time shows racism at its ugliest and determination at its most magnificent. This is the story in the lives of nine teenage students and their year at Central High School. The Governor of the state, Orval Faubus tries to block the federal court order by calling out the Arkansas National Guard. He says it’s to keep the peace, but everyone realizes it is to keep the black students out of the school. After two and a half weeks President Eisenhower called out the 101st airborne division to go to Little Rock and enforce the court order. I have shown this film every year to my students and they love it. It leads to lively discussions, not only about the Civil Rights movement and racism, but also the concept of states rights v. federal rights. Earl Warren was incensed that any state governor should try to tell the Court what was legal or illegal about school desegregation, which Faubus sought to do. (Warren 290) Students usually react very strongly to viewing the film The Ernest Green Story that accurately documents the desegregation of Central High School in 1957 in Little Rock Arkansas. So where are we now? It has been 50 years since the Brown decision. Some believe it was the most important case of the 20th century. Many believe that the Brown decision was the catalyst that opened up freedom and official recognition of equality. Others believe inequality still exists in the schools today. Teachers should open up discussion on the issue of whether or not the Brown decision has failed in its basic mission: to provide an equal and integrated education for minority students. How is integration possible in a city that has a majority of minority students? Today, children in New Haven attend a school system that is 89% minority. One of the realities of today is that urban areas are often non-white. So maybe the question then should be how do we guarantee to all students an equal and high quality education? Do the schools have to be integrated in order to do this and if not how do you go about trying to balance then racially? The third objective of this unit is to have students analyze and understand those cases that affected criminal procedure. Teachers might want to begin studying this objective by having students examine the case Gideon v Wainwright 1963.This case mandating that the court provide an attorney for indigents was probably the Warren Court’s only popular criminal procedure decision. (Powe 379) Earl Warren felt a commitment to establish rules governing criminal procedure-intended to extend the rights contained in the Fifth Sixth, and Eighth Amendments to all individuals accused of criminal acts. The rulings in the cases will demonstrate the principles of equal justice under the law. Teachers should remind students that Warren had a background as a prosecutor in the state of California for more than a dozen years. He was well acquainted with how law enforcement operates and was committed to correcting the inequalities caused by social and economic differences. His goal in these cases was to establish clear guidelines for putting into effect the rights guaranteed in the Constitution that all Americans, not just the wealthy would be protected from unfair practices. (Urofsky 170) Considered one of the most famous cases, Gideon v. Wainwright, 1963 held that the right to counsel is “…fundamental and essential to trial and for that reason must be honored in state as well as in federal courts...” This decision overturned the 1942 case of Betts v. Brady. Students should be assigned the task of researching the facts and the decision in the Betts case. Teachers should point out that Warren had instructed his law clerks to look for a case that would allow the court to revisit the decision set by Betts v. Brady. They found such a case in the petition of Clarence Earl Gideon. The case of Gideon v. Wainwright, 1963 Clarence Earl Gideon was arrested in Florida for breaking and entering into a poolroom and stealing coin from the vending machines there. Brought to trial, he asked the judge to appoint a lawyer for him. He had no money to pay for an attorney. The judge informed Mr. Gideon that the state of Florida only had to provide a court appointed attorney in capital crimes. Gideon then tried to act as his own attorney and put on a defense for himself. Unfortunately, he did an extremely poor job. Although the trial judge tried to assist him, he did not know what questions to ask or the procedure to follow. The jury found him guilty and he was sentenced to jail time in the Florida State prison. While in prison he petitioned the Supreme Court requesting that the justices review his case on the grounds that the Sixth amendment, made applicable to the states by the Fourteenth amendment, guarantees the right to counsel. Gideon was mistaken on this point for the states were not required by the Constitution to provide a free attorney. This only applied in federal courts. Once the Supreme Court accepted the appeal from Gideon, Chief Justice Warren appointed a brilliant attorney Abe Fortas to defend Gideon’s argument in front of the Supreme Court. In the end the justices ruled unanimously to overturn the 1942 ruling in Betts v. Brady case. Defendants in state court accused of a felony now must be provided with a free court appointed attorney. Teachers might want to have the students view the film Gideon’s Trumpet starring Henry Fonda as Clarence Earl Gideon. Anthony Lewis bases this film on the book Gideon’s Trumpet. It offers a remarkable recreation of the entire judicial process from the arrest of Gideon to the final vote by the Supreme Court. The film usually engages students in lively discussions about whether or not a person can have a fair trial without a lawyer. Ask students what is a lawyer able to do for his client that a person defending himself cannot do. Do they believe the Florida law unfairly discriminated against people who were poor? Ask students what they think of Justice Black’s 1956 remark made in the case Griffin v. Illinois “…There can be no justice where the kind of trial a man gets depends on the amount of money he has.” Is there any truth to the idea that the absence of counsel means the absence of justice? Do students believe that today a poor man receives the same justice as a rich man? I remind students that although they are entitled to a court appointed attorney for felonies and some misdemeanors, the attorneys are still being paid by the state. Often they are overworked and underpaid and cannot devote the same attention to your case that a high priced lawyer probably will be able to do. Is this fair? Maybe all cases should be defended by public defenders? Would that guarantee equal justice for all or just bad justice for all? Students really enjoy discussing this topic in class. The case of Escobedo v. Illinois, 1964 The second case to be examined is Escobedo v Illinois, 1964. The decision in this case expanded the meaning of the right of counsel guaranteed by the Sixth amendment to include not only one’s defense at a criminal trial, but also during a police interrogation. The Court ruled by a slim vote of five to four “… that when the investigation is no longer a general inquiry… but has begun to focus on a particular suspect…and where the suspect has been taken into custody…and the suspect has requested a lawyer…and the police have not informed him of his rights to remain silent, the accused has been denied…counsel in violation of the sixth Amendment.” The Supreme Court ruled in this case that the confession of Daniel Escobedo must be thrown out and held that the accused must be allowed to consult with a lawyer once he becomes a prime suspect in a case. This case dates back to the one night in January 1960 when Escobedo and an accomplice were arrested for the murder of Escobedo’s brother-in-law. The police questioned the two men separately. While being interrogated Escobedo asked several times that his lawyer be present, but the police told him that his lawyer did not want to see him. In fact, his lawyer came to the police station, but the police would not let him see his client. Escobedo’s lawyer, a man named Walter Wolfson got to the police station shortly after Escobedo arrived. He remained at the police station waiting to have a chance to talk to Escobedo. Once Wolfson even saw Escobedo briefly through a doorway, but was not allowed to get close enough to talk to him. One of the police officers at the Chicago station knew Escobedo and his family. He spoke to Daniel for about 15 minutes alone and in private. Escobedo told the officer that Benedict DeGerlando had murdered his brother-in-law. This was the first time that Daniel had admitted to any knowledge of the crime. Shortly after the District Attorney took a statement from him. After this formal confession Daniel’s lawyer was finally allowed to see him. At his trial Escobedo said that the police told him that he and his sister could go home if he admitted that his friend DeGerlando had committed the crime. The officer stated that this was not true and no deal was ever made with Daniel. Escobedo was found guilty of murder and sentenced to 20 years in the state prison. The Illinois Supreme Court upheld his conviction. The case was then appealed to the U.S. Supreme Court. The Court reversed the decision in a very close vote. Justice Arthur Goldberg wrote the Court’s decision and Chief Justice Warren, and Justices Black, Brennan, and Douglas joined him. Teachers should present the facts of this case to the class without telling them the decision of the Court. Ask the students at what time should a person be told that they are a suspect in a crime. At what time should a person be told that they have the right to an attorney? If Escobedo had been provided with an attorney during questioning, do they think he would have confessed? Remind students that some people become very “anxious” when they feel threatened in any way. Ask them how they would feel if they were suddenly sent down to the principle’s office, accused of a wrongdoing and not allowed to call their parents. Would they feel scared in any way? Would they feel isolated? Might they just say anything to get out of that office? Sometimes being around people who are perceived to have some authority makes other people very nervous. Teachers should also open up discussion to students concerning the reaction of the public in 1964 when this decision was handed down. Many people felt the Court was now coddling criminals. They started to question whether the Court was going too far in handing out right to the accused. They felt that the justices were becoming “soft on crime” and giving the advantage to the defendant. Some even felt the Court was preventing the police from during their job. Others however, felt this would make the police act in a more professional manner. Some people even believed that the decision in this case affected the presidential election of 1968. Republicans made an issue out of the belief that that the Court was soft on criminals and that the police were demoralized and were not able to adequately do their job. Bumper stickers once again appeared calling for the impeachment of Earl Warren. The case of Miranda v. Arizona, 1966 The third case to be examined concerning criminal procedure came to the Court in the summer of 1965. Earl Warren instructed his clerks to look for cases that would lay out the groundwork for police procedure. Four cases were chosen including Miranda v. Arizona. This case became one of the most controversial cases in criminal procedure during the entire Warren era. Teachers should first relate the facts of the case to students. Ernesto Miranda was arrested for the kidnapping and rape of a woman in Arizona. He was taken to the police station where after two hours of police questioning he signed a confession statement. He was never told of his right to remain silent or his right to see a lawyer. At his trial his signed confession was used against him and he was found guilty of the crimes. While in prison he appealed his case to the Supreme Court arguing that his confession should not have been used at his trial because the police had not told him of his rights and he answered questions because he did not know he could remain silent. His lawyer said that he was frightened while in custody and the police atmosphere was intimidating. Tell students that the issue here was whether the confession should have been used as evidence at the trial. Did the police follow the proper procedures when they got the confession from Miranda? Were Miranda’s constitutional rights protected? Warren announced the Miranda decision on June 23, 1966. Justices Black, Brennan, Douglas, and Fortes made up the majority along with Warren. Miranda begins with the statement of the four things the police must state before they question suspects. They have the right to remain silent; anything they say can be used against them; they have the right to counsel, and if they cannot pay for counsel, lawyers will be provided for them. Students are usually quite familiar with the Miranda rights having heard them on television or film. Critics of this decision became very vocal. Warren was accused of overstepping the bounds of the judicial role and stepping into legislative role. (Powe 395) Ask students if the feel the Court should have the ability to make changes when they feel an injustice is being done or is this role one that should be undertaken by the legislative branch. Warren felt he was turning constitutional principles into practical policies. Those who supported him believed he was exercising fairness, equality and justice. They agreed with Warren in that these rights would help to protect those who were less fortunate; the weak, the illiterate, or the poor defendant against the possibility of Fifth Amendment violations. He believed that people should have the same rights as the rich, the organized criminal and the knowledgeable who will always insist on their right to counsel. (Warren, 201) Ask students how they think the police reacted to this decision at the time. Tell them in fact many of the police were aghast. One high-ranking police official is quoted as saying “I guess now we will have to supply all squad cars with lawyers.” Ask students what they think he meant by this statement. By 1966 it was becoming apparent that crime was a major domestic issue and public opinion was showing that some people felt the Warren Court was too soft on crime. The final case to be examined can be found in the classroom activities section of this unit. In Re Gault, 1967 considered the rights of juveniles. Classroom Activities Lesson Plan One-The Rights of Juveniles A study of In Re Gault, 1967Objective Students will understand the significance of the Gault case, which changed the way the courts must treat juveniles. Procedure Teachers will need to present to students the summary of the case that is offered in this lesson and then split the class into groups for discussion. Once the questions are addressed, the group should select a leader who will present the group’s findings back to the class. Summary of the Case In June of 1964, in Gila County, Arizona a complaint was filed by a Mrs. Cook to the local sheriff stating that she had received an obscene phone call. Although the call was traced to the Gault home there was no proof as to exactly who had made the call or spoken the obscene words. The local sheriff went to the Gault house and arrested Gerald Gault, age 15 and his friend Ronald Lewis, also age 15. Both boys were brought to the juvenile detention home in Globe to await a hearing from a juvenile officer. Gerald had been in trouble before and was already on probation in the state of Arizona. When the sheriff took Gerald into custody his parents were not at home In fact, his father worked several hundred miles away and his mother was at work. Not even a note was left by the sheriff to inform the Gault’s of their son’s whereabouts. When Marjorie Gault returned home from work she found out that her son was being held at the juvenile detention center. That night she went to the center to speak to her son and also the center’s superintendent, Charles Flagg. Mr. Flagg told Mrs.Gault that Gerald would have a hearing the next day. That night a probation officer questioned Gerald about the phone call. He also questioned Ronnie Lewis to see if boy’s stories matched. Though he had no proof that Gerald had made the call, Mr. Flagg filed a petition with the juvenile court describing Gerald as a delinquent minor and asked the court for a hearing as well as an order regarding his care and custody. Since no record of the hearing was kept, no one knows exactly what was said. According to later testimony, the judge asked some questions about the phone call. A few days later Gerald was released from the detention center. Mrs.Gault received a note saying that a second hearing would be held in six days. At the second hearing Mr. and Mrs.Gault admitted that their son had dialed the woman’s number, however, they believed that Ronald Lewis had done the talking. They asked that the woman who had made the complaint to come in and identify which boy’s voice she had heard on the phone. Their request was denied. In fact, the judge never talked to Mrs. Cook to check the details of the case. On the basis of these two hearings the judge found Gerald to be delinquent. According to an Arizona state law “people were not allowed to use vulgar, abusive or obscene language in the hearing of a woman or a child.” Supposedly, Gerald confessed at his hearing, but he had no legal representation. He was sentenced to six years of confinement at the Fort Grant Industrial School. If he were in an adult court he would probably receive two months in jail and a fifty-dollar fine. When Gerald was at the Industrial School his parents appealed his conviction to the Arizona Supreme Court. They said the state had taken away their son’s right to due process and violated the limits of the Fourteenth Amendment amendment. Furthermore, they said that Gerald should be entitled to the same rights at his hearing that an adult had at a trial The Arizona State Supreme Court upheld the juvenile court judge’s ruling. The Gault’s then appealed their case to the U.S. Supreme Court. The Court decided that juveniles accused of wrongdoing should have many of the same protections that are required in an adult trial under the Bill of Rights. The Court believed that neither the Fourteenth Amendment nor the Bill of Rights is for adults alone. Furthermore, “the condition of being a boy does not justify a kangaroo court.” Justice Abe Fortas wrote the detailed and strongly worded opinion for the Court. Chief Justice Warren complimented Fortas on his opinion by calling it the Magna Carta for Juveniles. Joining Justice Fortas in the opinion were Chief Justice Warren and Justices Brennan, Clark and Douglas. Justices Black and White concurred with the majority decision. Justice Harlan wrote a separate opinion concurring in part and dissenting in part. Justice Black stated, “he agreed with the majority, but felt that the ruling “strikes a fatal blow to much of what is unique about the juvenile court system…” Justice Stewart dissented from the majority. In his dissent he acknowledged that “…the justice system has not been perfect, but he said, juvenile proceedings are not criminal trials. He felt the Court was taking a step backwards into the nineteenth century when children were tried as adults...” (Billitteri 88) As a result of the Gault case the following elements of due process must be guaranteed to juveniles The Court decided that juveniles should have the same rights as adults at the time of the trial. Gerald and his parents should have been notified of the hearing before it occurred so that they could have prepared a defense. Gerald should have been told that he had the right to a lawyer and should have been provided with free counsel if necessary. Gerald should have been told that he had the right to remain silent and not testify against himself. Gerald should have the right to confront the witness against him and to cross-examine the witness. Finally, the Supreme Court said that the state of Arizona did not give Gerald these rights and he should be given a new hearing. At this time teachers might want to present a recent case in which the Court refused to require special treatment for young people under questioning by the police. In a very close vote (5 to 4) the Supreme Court clashed over whether the police must take special care when questioning young people about crimes. The case Yarborough v. Alvarado, 2004 involved statements made by 17 year old Michael Alvaredo while he was being questioned by the police, but not under arrest. In this case no warnings were given to the youth when his parents brought him to a California police station for questioning. His parents were told to wait outside the interrogation room while the police questioned him. He was later convicted of second-degree murder and incriminating statements obtained during that interrogation were used at the trial. Alvarado did not receive Miranda warnings prior to the interrogation in question. The California trial court rejected the defense motion to suppress his incriminating statements. It concluded that he was not in custody during the interrogation and therefore, was not entitled to warnings. Teachers might assign students to research the various decisions in this very close vote. Students report back on the majority decision written by Justice Kennedy. as well as the concurring opinion written by Justice O’Connor and the dissenting opinion written by Justice Stephen Breyer. Questions for Discussion Once students have had the time to read and discuss the facts and the decision they should be divided into groups of four. Ask them to address the following questions in their group. They should select a group leader who will present their answers back to the entire class. 1. Should juveniles and adults have the same rights as guaranteed by the United States Constitution?2. What rights would Gerald have had if his case were being heard in an adult court? 3. What do you think is the goal of a juvenile court? What is the goal of an adult court? 4. Do you think juvenile courts are too soft on the youth of today? 5. What consequences do you think Gerald Gault should have faced for his actions? 6. Discuss the discrepancy between the juvenile punishment and the adult punishment for the same crime. 7. What do you think Warren meant when he stated that the written opinion of Justice Fortas would be known as the Magna Carta for juveniles? 8. What arguments do you think were presented by the lawyers representing the state of Arizona at the U.S. Supreme Court hearing? 9. What do you think Justice Fortas meant when he referred to the “never, never land of juvenile justice?” Where did this phrase originate? 10. For more than a century the juvenile court system has operated separately from the adult criminal courts. Juvenile courts were designed to provide flexibility to young people in trouble. The philosophy behind juvenile justice has always been to rehabilitate young offenders rather than punish them. But the trade-off means that juveniles have fewer due process rights than adults. Do you think this is fair? Lesson Plan Two TimeLine of Significant Events, People & Laws Objective Students will be able to identify the events, people in chronological order and understand the impact they might have had on the time. Procedure Teachers will need to label 5x7 index cards with the items listed below. Divide the class into groups and distribute one index card with a person or event written on the card to each student in the group. Time will be allotted for research in the library. Students will research their topic and be able to discuss the topic itself and the impact it had, not only with their group, but also with the rest of the class. Finally, each member of the group will place their event on a time line that will then be placed around the room. Teachers may have the students use a long roll of white paper or individual poster size boards that can be tacked up next to one another on a large bulletin board. Chronology 1953 September Chief Justice Fred Vinson dies of a heart attack October President Eisenhower nominates Earl Warren as Chief Justice 1954 May Brown v. Board of Education 1955 May Brown v. Board of Education II December Montgomery Bus Boycott 1956 February Authorine Lucy turned away from the University of AlabamaMarch Southern Manifesto against desegregation 1957 September Civil Rights Act passed; first since Reconstruction September Arkansas National Guard blocks the entrance to Central High School in Little Rock, Arkansas 1958 June NAACP v. Alabama September Cooper v. Aaron 1959 September Price Edward County, Virginia closes Schools 1960 February Sit-in, Greensboro, North Carolina November John Kennedy elected President of the U.S. 1961 May Freedom Rides begin June Mapp v. Ohio 1962 March Baker v. Carr June Engel v. Vitale 1963 March Gideon v. Wainwright March Douglas v. California June Medgar Evers assassinated in Mississippi June Abingdon School District v. Schempp August March on Washington September Church bombing kills four girls in Birmingham, Alabama November President Kennedy assassinated, Lyndon Johnson becomes president March New York Times v. Sullivan 1964 June Freedom Summer begins June Reynolds v. Sims June Escobedo v. Illinois June 1964 Civil Rights law November Lyndon Johnson elected president 1965 January Cox v. Louisiana February Malcolm X assassinated March Griswold v. Connecticut August Voting Rights Act 1966 June Miranda v. Arizona 1967 May “Long Hot Summer” of urban rioting begins June Loving v. Virginia July Rioting in Newark and Detroit 1968 April Martin Luther King assassinated April Ginsburg v. New York June Terry v. Ohio June Earl Warren announces retirement November Richard Nixon elected president 1969 February Tinker v Des Moines June Powell v. McCormack June Chimmel v. California June Warren Burger replaces Chief Justice Warren Materials used 3x5 index cards, construction paper Lesson Plan Three Glossary of Terms Objective Students must know and understand the meanings of those terms associated with legal situations and the Warren Court. Procedure Instruct the students to divide their paper in quarters and then cut them evenly. On the front side of the paper they will be writing the terms the teacher has written on the board. On the backside they are to write the correct definition or description of the term as provided by the teacher. They now have created a flash card. Students should study these terms at home and the next day the teacher should reinforce the meanings and concepts of these terms by playing jeopardy with the class. The teacher will provide the meaning and the students will provide the correct term in the form of a question. Teachers might divide the class into five or six teams. The winning team might be rewarded with extra credit points on the test for this unit. Terms to know 1. affirm An appellate court ruling that upholds the judgment of a lower court, in effect stating the decision of the lower court is correct. 2. appeal A process by which a final judgment of a lower court is revised by a higher court. 3. appellate jurisdiction Authority of a superior court to review decisions of inferior courts. 4. brief A document containing arguments on a matter under consideration by a court 5.certiorari Latin word meaning to be informed of, to be made certain in regard to. A writ or order to a court whose decision is being challenged on appeal to send the records of the case to enable a higher court to review the case. 6. Civil Rights Acts of government designed to further the achievement of political or social equality as well as protect persons against arbitrary and discriminatory treaty from the government. 7. concurring opinion An opinion by a judge that agrees with the decision of the majority, but disagrees with the majority’s rationale. A judge who presents a concurring opinion has arrived at the same conclusion but for different reasons. 8. conference The regular meeting in which the Supreme Court justices conduct all business associated with deciding cases, including determining which cases will be reviewed, discussing the merits of cases after oral arguments and voting on which party in a case will prevail. Conferences are closed to all but the justices. 9. dissenting opinion The opinion of a judge who disagrees with the result reached by the majority. 10. due process The concept that the Constitution’s due process clauses require the government to follow fair procedures when interfering with a person’s life, liberty, or property. 11. judgment of the court The final conclusion reached by a court 12. judicial activism An interventionist approach or role orientation for appellate decision-making. Judicial activism is seen by critics as legislating by justices to achieve outcome in line with their own social priorities. 13. judicial review The power of the court to examine the actions of the legislative and executive branches with the possibility that these actions could be declared unconstitutional. 14. judicial self-restraint A role view that minimizes the extent to which judges apply their personal views to the legal judgments they render. Courts should defer to the policy judgments made by the elected branches of government. 15. living Constitution The belief that the Constitution was intended to endure for the ages and thus can be adapted by courts to changing social and economic conditions. 16. opinion of the court The statement of the court that expresses the reasoning upon which a decision is based. The opinion summarizes the principles that apply in a given case and represents the opinion of the majority of court members. 17. oral arguments The arguments presented by counsel before the Court, usually limited to thirty minutes a side before the Supreme Court. 18. plurality An opinion announcing a court’s judgment and supporting reasoning in a case, but is not supported by a majority of the justices hearing the case. Such an opinion arises when a majority of justices support the court’s ruling in a case, but do not support the majority’s reasoning behind it. 19. precedent The theory that decisions reached in earlier cases with similar fact patterns should determine the judgment in subsequent case. 20. reversal An action by an appellate court setting aside or changing a decision of a lower court Earl Warren’s successor, Warren Burger, a native of Minnesota, had been a judge of the Court of Appeals for the District of Columbia Circuit for more than a decade. He became Chief Justice in 1969. One of the most famous of the Court’s rulings involving the conflict between religious freedom and state public schools came under Chief Justice Burger in 1972. It resulted in a victory for three Amish families in rural Wisconsin who were testing the guarantee of religious freedom. They had refused to send their children to public school beyond the eighth grade, asserting that modern secondary education was contrary to the Amish religion and a threat to their children’s salvation. "The Amish . . . have convincingly demonstrated the sincerity of their religious beliefs," said the Court, and the children were free, after completing elementary school, to follow the centuries-old tradition of learning at home. The Supreme Court ruled in 1972 that Amish families could be allowed to home school their children after elementary school because the Amish believed that a public school education posed a threat to their religion ~ The Court has had to balance freedom of speech guarantees with separation of church and state principles in determining whether to allow public displays of religioni, such as crèches on government property and prayer in public schools ~ Library of Congress Library of Congress When the Internal Revenue Service declared in 1970 that private schools discriminating against blacks could no longer claim tax-exempt status, the action went largely unnoticed by the public. In 1983, it became prime-time news when two religious schools having admission policies based on race sought to regain tax-favored status and the case reached the Supreme Court. Counsel for Bob Jones University and Goldsboro Christian School argued that their policies were based on sincerely held religious beliefs. But the Court ruled that the First Amendment did not prevent denial of tax-favored status. Eliminating racial discrimination in education substantially outweighed any burden placed on the free exercise of religion, according to the eight-to-one majority. The Court also held in 1983 that reading a prayer at the opening day session of the Nebraska legislature did not violate the First Amendment’s establishment-of-religion clause. In another highly publicized case, a year later, it ruled that a Nativity scene displayed at Christmastime by the city of Pawtucket, Rhode Island, did not violate the Constitution. This extended the degree which government may use religious symbols to acknowledge the Nation’s heritage. The long-standing controversy over religion in public schools took yet another form in 1985. The Court struck down an Alabama law that permitted a moment of silence in schools for prayer or mediation. Justice John Paul Stevens, speaking for the Court, said that the law had no secular purpose, but rather was designed to encourage students to pray. Are religious groups free, under the First Amendment, to distribute literature other than in designated locations in state fairgrounds in disregard of rules applied to all exhibitors? The Court said no in 1981. Are privately owned shopping malls subject to free speech requirements as old-fashioned Main Streets are? In one case the answer was a qualified yes; in another, a qualified no. Most Americans take freedom of speech and of the press as the most evident and absolute of rights, guaranteed by the First Amendment. Yet in the last three decades, the Supreme Court has been called upon to decide more cases concerning freedom of the press than in the previous 175 years. Controversies involving the press and the broadcast media are extensively reported by them, fairly in their own eyes and in those of some observers, not always so fairly in the eyes of others. In the 1970s, the press was "subjected to a judicial battering that has been more serious and more fundamental, than the assaults that were mounted in more parlous days," an attorney representing press interests asserted in a 1979 weekly magazine article. Free to reply to such criticism when he retired from the Court in 1981, Associate Justice Potter Stewart said that the notion that "traditional protections are being ignored or disregarded or destroyed is a completely fallacious thought." Controversy over the Vietnam was at a peak when, on June 13, 1971, the New York Times began publishing installments of a secret, illegally obtained document concerning the United States’ conduct of the war. The government saw grave dangers to U.S. security in the publication of what became known as the Pentagon Papers, and sought injunctions to prevent both the Times and the Washington Post from further dissemination of the stolen information. Within two weeks the case reached the Supreme Court, which heard arguments on June 26 and announced its decision on June 30. Once again, as it has through the years, the Court refused to countenance restraint prior to publication. In a brief decision, the Court observed that any system of prior restraint bears "a heavy presumption against its constitutional validity." Each Justice filed a separate opinion; there were three dissents. Among the majority, Justice William J. Brennan denounced prior restraint in nearly absolute terms, but he conceded that in wartime there might be a "single, extremely narrow" class of exceptions. The three dissenters emphasized the "almost irresponsibly feverish" speed with which the case was disposed of; according to Justice John M. Harlan, it should have been conducted under full ground rules. The Pentagon Papers were published and were a journalistic sensation at home and abroad; but the war in Vietnam went on. Do news reporters have a right to confidentiality of their sources under the First Amendment? They argue that unless they can protect the identity of people who give them information under promises of secrecy, the sources will dry up. Not so, said the Court in 1972, speaking through Justice Byron White; when a grand jury is seeking evidence concerning a crime, a reporter’s sources are not necessarily protected. If the reporter believes the testimony is not essential to the case, he or she may ask the court to issue a protective order; but the Court will decide. Another controversial issue involving First Amendment protection came to the Supreme Court: the explicit treatment of sex in books, magazines, and motion pictures. In 1957 and again in 1966 under Chief Justice Earl Warren, the Court held that the First Amendment protects material challenged as pornography—even if the material might appeal to prurient interests and affront community standards— unless it is shown to be "utterly without redeeming social value." This test proved difficult to apply in practice, and in 1973 the Court substituted a modified standard: There is First Amendment protection unless "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value" At the same time, the Court held that pornography cases should be decided by trial courts on the basis of individual community standards, not national ones. But in 1982 the Court unanimously upheld a New York criminal statute prohibiting the distribution of material depicting sexual activity by children under the age of 16. "On the evening of October 18, 1975, local police found the six members of the Henry Kellie family murdered in their home in Sutherland, Neb., a town of about 850 people." This stark recital began the decision that resolved two potentially conflicting guarantees in the Bill of Rights in favor of the First Amendment. The day after the grisly discovery, Erwin Charles Simants was arrested and soon charged with committing the murders in the course of a sexual assault. The media gave the crime sensational coverage. The right to a fair trial in all criminal prosecutions is explicitly guaranteed by the Sixth Amendment. The Nebraska Supreme Court sustained a lower court order restricting media coverage on the grounds that prejudicial news stories would make a fair trial for Simants difficult, if not impossible, anywhere in the state. Unanimously, the Nation’s highest court decided otherwise, again refusing to sanction prior restraint. The majority opinion affirmed the "explicit command" of the Constitution that "freedom to speak and publish shall not be abridged," echoing the trenchant phases of Chief Justice Charles Evans Hughes half a century earlier in Near v. Minnesota. Again and again, the Court has struck down state law and lower court decisions that attempted to limit publication. In 1974 it ruled unanimously that the state of Florida could not require a newspaper to grant a "right of reply" to a candidate for public office whom the paper had criticized in print. In effect, such a law would give the state some control over the newspaper’s content, a form of government compulsion the Court held unconstitutional. In 1978 the Court determined that the Commonwealth of Virginia could not prohibit the accurate reporting of closed-door proceedings of a state commission inquiring into the conduct of a judge, a matter of "utmost public concern." In 1979, however, it held that the press did not have an absolute right to be present at pretrial proceedings. It sustained the lower court’s exclusion of a reporter, saying that publication of the accused’s confession would prevent a fair trial. The decision brought a barrage of criticism. Criminal trials themselves are another matter, the Court said in regard to a Virginia murder case a year later in 1979, when it held that the right of the public and the press to attend them is guaranteed by the First and Fourteenth Amendments. The right to be present was specifically extended, in a unanimous decision in 1984, to the jury selection process for criminal trials. The right of defendants charged with felonies to be represented by counsel, regardless of whether they could afford it, was extended to all state courts in the highly publicized Gideon decision of 1963 under Chief Justice Earl Warren. Less widely known is the decision concerning Jon Richard Argersinger, who had been sentenced by a Florida court to 90 days in prison for carrying a concealed weapon. In responding to his appeal in 1972, the Court expanded the right to counsel well beyond Gideon. Under this holding, an accused person may not be sent to prison, even on a misdemeanor charge, unless represented by an attorney; and the state must provide one for indigent defendants. The exclusionary rule highlights the controversy between advocates of the rights of persons accused of crime and champions of the right of a society to protect itself. This rule, established and refined by a series of Court interpretations over the years, is little understood by the public. Among judges, attorneys, scholars, and legislators, it is a keenly debated and divisive issue, and it is significant, often decisive, in the outcome of serious criminal cases. The rule prescribes that evidence obtained by illegal means—including confessions obtained in violation of the Miranda warning requirement, conversations overheard through unauthorized electronic "bugging," or tangible evidence such as drugs or weapons improperly seized—may not be used in trials. But in recent years, while repeatedly upholding the Amendment against unreasonable search and seizure and the Miranda rule, the Court has modified their application in some respects. In 1984, in New York v. Quarles, it created a "public safety" exception to Miranda in circumstances where the public is in immediate danger, allowing police officers to ask questions to remove a threat without first informing an arrested person of his rights. During the same term it adopted a "good faith" exception to the exclusionary rule. This allowed evidence to be used if police conducting the search reasonably relied upon a search warrant later determined to be technically defective. A constitutional crises seemed imminent on May 31, 1974, as the Watergate episode neared its climax. On that date, the Court granted a petition to hear a case whose outcome could lead to the impeachment of the President, and set July 8 for argument. The very name of the case spoke history and high drama: United States, Petition v. Richard M. Nixon, President of the United States. The House of Representatives was already considering impeachment proceedings against President Nixon based on his part in a cover-up. Seven former members of his staff had been indicted on felony charges. They were accused of conspiring to obstruct justice by concealing White House involvement in the 1972 break-in at Democratic Party offices in Washington’s Watergate complex. The U.S. District Court ordered President Nixon to produce as evidence tape recordings and notes on 64 conversations that took place in the White House. The President refused to comply. By 10:00 a.m. on July 8 it was evident that the 192 seats in the Court Chamber could not begin to accommodate the throngs who sought to witness this unique and critical passage in the life of the Republic. But more than 1,500 people attended at least part of the three hours of probing, measured, often quietly eloquent debate. They heard the President’s advocate, James D. St. Clair, pressed by insistent questions from the Justices, defend the claim of absolute Presidential privilege and immunity from court orders. Even in a criminal conspiracy? Yes, said the President’s lawyer, "even if it’s criminal." They heard the Texas accents of Special Prosecutor Leon Jaworski as he invoked the constitutional power of the government to obtain evidence of a crime and also the structure of checks and balances. "Boiled down," he declared, "this case really presents one fundamental issue: Who is to be the arbiter of what the Constitution says?" Two weeks later, on a gray and muggy July 24, a tense crowd again filled the Court Chamber. As the hands of the clock marked 11, the traditional cry of "Oyez!" rang out. With somber dignity Chief Justice Warren Burger took note of the recent death of former Chief Justice Earl Warren, "our beloved colleague." Then he went on to read in measured tones his opinion for a unanimous Court. For 17 minutes the audience strained to capture every word of the unequivocal finding: The President must surrender the tapes. "Narrow," some commentators called the decision. It was, in strongly reaffirming the separation of powers an the constitutional roots of executive privilege, but ruling that here the President’s privilege must yield to the demands of a fair trial, equally guaranteed by the Constitution. "Broad," others called it. It was, in reaffirming what Chief Justice John Marshall had said in Marbury v. Madison 171 years earlier—that it is "emphatically the province and duty" of this Court "to say what the law is." On August 9 President Nixon became the first chief executive in the Nation’s history to resign. Publication of three conversations of the disputed 64 had brought his Presidency to an end. At noon that day, Chief Justice Warren Burger administered the oath of office to Gerald R. Ford, the new President. Woman’s rights have become such a dominant thread in the fabric of our political, social, and judicial life that it is hard to realize how recently this pattern was established. Not until 1971 did the Supreme Court first hold a government classification by gender unconstitutional; in the following years cases involving charges of sex discrimination have become a more commonplace item on the Court’s docket. Decision by decision, the Supreme Court struck down laws that arbitrarily favored males over females. Starting with Reed v. Reed in 1971, the Court said that the choice of administrator for an estate "may not lawfully be mandated solely on the basis of sex." In 1973, the Court invalidated a federal law that provided broader housing and medical benefits for males in the military than it did for females. In 1974 an equal-pay-for-equal-work statute was upheld. In 1975, the Court was faced with another aspect of discrimination and decreed that widowers with small children are entitled to Social Security survivors’ benefits equal to those of widows in similar situations. Finally, in 1976, the Court held that discrimination against men was just as much a violation of the Constitution as discrimination against women. This decision involved an Oklahoma statute permitting women to buy beer at the age of 18 but denying men the same right until they reached the age of 21. Not all decisions of the Court have satisfied feminists. In 1979 it upheld a Massachusetts law giving preference to veterans in state employment. Even though more men than women could take advantage of the provision, there was no intent to discriminate by sex, said the Court; women veterans were fully included. Justice Thurgood Marshall, joined by Justice William Brennan, dissented, saying "this degree of preference is not constitutionally permissible." Then, on June 25, 1981, the Court upheld an all-male military draft registration law. The president of the National Organization for Women said the decision perpetuated "the myth of this country that all men are better than all women." Rapid social change has greatly affected the law in the area of sex discrimination. Again and again, the Supreme Court has made clear that the Constitution and laws do not permit discrimination on the basis of sex. In 1982, the Court held that a state university nursing school, which had historically admitted only women, could not exclude a male applicant simply on the basis of gender. In 1984, a unanimous Court held that a federal law banning discrimination based on sex and race was applicable to law-firm hiring and promotion decisions. Affirmative action programs designed to redress discrimination based on race, religion, sex, or national origin have been repeatedly upheld by the Supreme Court, with some qualifications, since school segregation was outlawed in 1954 and a new Civil Rights Law was adopted by Congress in 1964. The thorny issues involved have reached the Court in a stream of varied cases. One of the first to draw great national attention was that of "reverse discrimination" charged by Allan Bakke, which reached the high tribunal in 1977. Bakke, white, contested the denial of his admission to the medical school of the University of California at Davis, which reserved 16 of 100 places annually for minority candidates. Under this quota system, said Bakke, he had not been admitted, despite the fact that minority candidates with lower scores were accepted. He argued that this was a clear case of discrimination. Bakke’s counsel told the Court that his client’s exclusion violated both the equal-protection clause of the Fourteenth Amendment and the Civil Rights Act of 1964. The latter prohibits the exclusion of anyone on the basis of race or color from any program receiving financial assistance from the federal government. The implications for minorities, for all student admissions policies, and for the future of civil rights legislation were portentous. News coverage and speculation reached an intensity unknown since the Nixon tapes case; some people saw the whole process of desegregation threatened if Bakke’s position were upheld. On June 28, 1978, the Court spoke—to a crowded room and to an international audience beyond. That the Justices held strong individual views was clear; there were six separate opinions. By a vote of five to four, the Court determined that Allan Bakke should be admitted to the medical school at Davis. The Court also repudiated the school’s quota system as such, but permitted some consideration of minority status to achieve diversity in graduate and professional school education. Supporters of more categorical positions on both sides criticized the holdings; but, in the judgment of a distinguished legal scholar, they "accomplished the task of defusing tension in a country which had become taut with anticipation." A year later, by a five-to-two vote, the Court upheld affirmative action programs established by private employers and unions to end discrimination. In 1980 the Court narrowly sustained an act of Congress which set aside ten percent of local public works programs for a defined category of minority businesses. Toward the goal of equality of economic opportunity, the opinion said, Congress has the "necessary latitude to try new techniques such as the limited use of racial and ethnic criteria." But in two other decisions of 1984 and 1986, The Court ruled that white employees under a seniority system may not be laid off to protect the jobs of black workers hired under an affirmative action plan. Abortion is one of the most emotional and divisive issues in contemporary America. The controversy reached the Supreme Court as a constitutional question in 1972; and on January 22, 1973, in what has been called a sweeping decision, the Court set limits on state power to prohibit or to regulate abortion. In deciding Roe v. Wade and Doe v. Bolton, it held prohibitory statutes in Texas and Georgia invalid, and with them the abortion laws of many other states. Based upon its determination of when a fetus becomes viable, the Court ruled that for the first three months of pregnancy a state must leave the decision on abortion to the woman and her physician. For the stage beginning with the fourth month, the state may set regulations reasonably related to maternal health. Finally, for the stage after viability—around the seventh month—the state may prohibit abortion unless the mother’s health is endangered. Two dissenters called this decision an "extravagant exercise of raw judicial power." In the majority opinion, citing rights protected by the Ninth and Fourteenth Amendments, Justice Harry A. Blackmun acknowledged the Court’s full awareness "of the deep and seemingly absolute convictions that the subject inspires." As demonstrators made their views known with marches and banners near the Supreme Court and on the avenues of the city, the Court reaffirmed its landmark ruling 13 years later by a five-to-four majority. It struck down a Pennsylvania statute that admittedly was intended to discourage women from choosing abortions. In 1973 the Court invalidated state laws prohibiting Library of Congress abortion ~ Library of Congress Illegitimate children are entitled to equal protection under the Constitution, the Court held in 1974, and struck down a section of the Social Security Act that denied benefits to some of them. From 1900 to 1969, the Court heard only six cases on the status of illegitimate children; since then it has heard more than twenty. Most state and federal statutes governing legal relations between men and women and their offspring have long been based on conventional forms of marriage and divorce. But as the 1980's began, hundreds of thousands of couples were choosing to live together outside of marriage, sometimes raising families and staying together over long periods of time. Adopted children, now grown, are challenging state laws that have sealed their birth records, thus preventing them from learning the identity of their natural parents. Husbands are demanding alimony from wives, and in 1979 the Supreme Court struck down a state law that denied support payments from wife to husband. In 1980 the Court was called upon to decide whether a new form of life, created from a combination of inanimate components could be patented. Eight years earlier a microbiologist, Ananda M. Chakrabarty of Schenectady, New York, had developed a bacterium capable of breaking down several components of crude oil. Naturally occurring bacteria were able to degrade only one product of genetic engineering, capable of mass production, and promised among its benefits more efficient and rapid control of destructive oil spills. By a five-to-four vote, the Court held that Chakrabarty’s discovery represented a new and man-made form of life; that it constituted a "manufacture" or "composition of matter" as defined by the parent laws originally drafted by Thomas Jefferson; and that Chakrabarty’s rights as an inventor were entitled to protection. Warnings of hazards from genetic research were brushed aside by the opinion; these considerations, said the Court, should be presented to Congress. "The most significant constitutional ruling since United States v. Nixon nine years earlier," said a constitutional historian of an otherwise obscure immigration case decided in June 1983. This time the powers of Congress were at issue, going to the heart of the Constitution’s separation of powers among the executive, legislative, and judicial branches. The case lacked the drama and popular interest of Watergate but was, said some observers, far broader in its effect. At stake was the constitutionality of the "Legislative veto," a device used by Congress since 1932 in some 350 legislative acts. In nearly 200 laws still in effect, Congress had delegated powers to the executive branch while retaining the authority to veto the way in which the powers were exercised by departments, agencies, and commissions. Jagdish Chadha, an Indian born in Kenya and holding a British passport, had been ordered to leave the United States after obtaining a university degree in Ohio. He appealed to the Immigration and Naturalization Service and eventually obtained permission to remain as a hardship case. But the House subcommittee reviewing a list of aliens seeking permanent residence disagreed and removed his name. Chadha fought back with the help of a law firm that appealed his case through the courts. Nine years later it reached the supreme tribunal. The decision of Congress to deport Chadha was a legislative act, Chief Justice Burger held in his opinion for the Court, and the subcommittee’s "one-house veto" was unlawful. It violated "the Framers’ decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered, procedure." All legislation must be passed by both the House and the Senate and be presented to the President checks" on each branch and to maintain the separation of powers; "the carefully defined limits on the power of each Branch must not be eroded," the Court said. Justice Byron White, who was joined by Justice William H. Rehnquist in dissent, reading his opinion aloud from the bench to give it added emphasis, described the veto as "a central means by which Congress secures the accountability of executive and independent agencies." The legislative veto, he said, is a useful invention for "the modern administrative state," enabling Congress to delegate authority while retaining responsibility. "Not since the New Deal collisions of the 1930s," said one national publication, "had Congress felt so keenly the power of the Court to curtail its actions," thus altering the "delicate balance" of power between the legislative and executive branches. But the Court’s last words on the matter were definitive: "with all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution." Life itself is weighed on the scales of justice when a crime is punishable by death. On one side of the scales are the rights of the accused, protected in the body of the Constitution and in no fewer than five Amendments. On the other side is society’s need, loudly and frequently voiced in an era of mounting crime and violence, to deter and punish criminals. On the constitutionality of capital punishment, the Court has spoken firmly in landmark cases. In Furman v. Georgia, announced on June 29, 1972, it found that the death penalty as applied in that case would be "cruel and unusual punishment," forbidden by the Eighth Amendment. For 631 men and two women waiting on death row in 32 states, the decision brought hope for new sentences or new trials. More than half the states moved to rewrite their statutes to conform with the decision. The rewritten laws also came up for scrutiny; and in 1976 the Court cleared the air and flatly rejected the claim that the death sentence is in itself always cruel and unusual punishment. The Court upheld three of the new laws and invalidated two others. It held that the Eighth Amendment requires the sentencing judge or jury to consider not only the crime but also the individual character of the offender, as well as any mitigating circumstances in the case. The Court went a step further in 1977. In a case involving the rape of an adult woman, it found the death sentence "grossly disproportionate and excessive" and thus unconstitutional. Two Justices dissented strongly, characterizing rape as among the crimes constitutionally within the power of legislatures to make punishable by execution. Since then a divided Court has refused to overturn the death penalty as such in a number of cases, with Justices Brennan and Marshall consistently dissenting from any imposition of capital punishment. However, in 1986 the Court held that the Eighth Amendment prevents states from executing insane convicts. Partly because of cases pending in the Supreme Court, there were no executions in the United States from 1968 through 1976. In the eleven years following, under state laws revised to accord with Supreme Court rulings, more than 90 persons convicted of violent rimes were put to death. When Warren Burger stepped down in 1986, he had served longer than any Chief Justice appointed in the 20th century. President Ronald Reagan, as several of his predecessors had done, turned to the Court itself for the new Chief Justice: He named William H. Rehnquist, an Associate Justice since 1972. In 1976 the Court determined that the death penalty does not always constitute "cruel and unusual punishment" ~ Library of Congress Legal questions often display remarkable resistance to permanent resolution, and new facts constantly invite reexamination of old law. So it is not surprising that the Rehnquist Court has encountered many of the same issues faced by its predecessors. If often occupied more with refining the law than with establishing broad new principles, the current Court continues to decide issues relating to, for example, the death penalty, abortion, school desegregation, freedom of religion, and civil rights. Yet fundamental changes in American society have frequently required the Rehnquist Court to venture into relatively uncharted legal terrain as well. For instance, the Court is regularly called upon to decide whether, and to what extent, the nation’s civil rights laws protect not just groups defined by race, ethnicity, or religion, but by gender, sexual orientation and physical ability as well. At the same time, new and rapidly evolving technologies have forced the Court to consider when medical care must give way to a patient’s right to die, whether speech on the internet should be as “free” as it is in more traditional media, and when law enforcement’s use of new investigative technologies becomes an “unreasonable” invasion of constitutional rights. Considering more familiar legal terrain first, the Rehnquist Court has issued a number of important First Amendment decisions involving both speech and religion. For instance, in the 1989 flag-burning case, Texas v. Johnson, the Court confirmed that the First Amendment protects even the most unpopular forms of speech, including speech viscerally distasteful to many of the Justices themselves. Arguably, however, the Rehnquist Court’s most important free-speech cases have involved commercial rather than political or other non-commercial speech. Although long considered of little social value, the Court’s recent decisions reflect a growing respect for the importance of commercial speech. As a result, the Court now evaluates restrictions on commercial speech by increasingly exacting standards. Accordingly, the Court has struck down a city ordinance used to ban the placement of certain newsracks on public property where there were less burdensome alternatives for achieving the city’s aesthetic and safety goals, and where the city discriminated between newsracks distributing advertising circulars on the one hand, and regular newspapers on the other. In another case, the Court rejected a state law prohibiting liquor sellers from advertising the price of alcoholic beverages as an unconstitutional restriction on truthful, nonmisleading advertising. Separately, the Court struck down a federal law prohibiting brewers from displaying alcohol content on beer labels. Other First Amendment cases have illustrated the potential tension between its protection of free speech on the one hand, and freedom of religion on the other. In one case, for instance, fear of unconstitutionally endorsing religion caused the University of Virginia to deny funding to student-run religious publications on equal terms with other student publications. When the students sued, the Court held that the University had violated their right to free speech. At the same time, the Court itself has faced the difficult task of maintaining the often elusive balance between government not endorsing religion on the one hand, but not penalizing it on the other. Thus, the Court has held that a State may not create a school district for the particular benefit of a specific religious sect’s disabled children. Neither may a state deny certain generally available public benefits to students merely because they attend a private, religious school rather than a public or other secular school. Ultimately, however, the Rehnquist Court’s religious-freedom jurisprudence might best be viewed as an ongoing effort to establish usable criteria for determining when government action crosses the constitutional line in one direction or the other. For example, in County of Allegheny v. ACLU (1989) a fractured Court held that a crèche standing alone inside a county courthouse impermissibly endorses religion, but a menorah displayed next to a Christmas tree on the lawn outside does not. A similar effort is discernable in the Court’s recent attempts to define when government regulations that affect the use of private property become a constitutional “taking” of that property. As with so many issues, the primary difficulty in establishing fixed and usable criteria lies in the need to establish the appropriate balance between important but competing interests — here the property owner’s interest in unrestricted use of private property, and the government’s interest in controlling how such use affects the greater, common good. In 1987, the Court made it clear that property owners are entitled to compensation even if a regulation “takes” their property only temporarily. But subsequent decisions have yet to clarify exactly when a “regulatory taking” occurs, although some guiding principles have emerged. Thus, a compensible taking occurs when regulations impose burdens on private property that are unrelated to the public interest those regulations are intended to serve. For instance, conditioning a building permit for beachfront property on an easement allowing people already on the beach to cross from one side of the property to the other would not substantially further the State’s claimed interest in providing adequate public access to reach the beach in the first place. Moreover, the burdens of regulatory restrictions on private property must be not only related to, but also reasonably proportionate to, the public interests they are purported to serve. Finally, regardless of relationship and proportion, a regulatory burden is a taking if it deprives owners of all economically beneficial use of their property (unless the regulation merely prohibits activities traditionally considered to be a public nuisance or noxious use). That will not occur, however, if part of the property can be developed despite the regulation, even if the remainder cannot. In 1996 the Court ruled that the Virginia Military Institute must open its doors to women ~ Courtesy of Virginia Military Institute On First Amendment grounds the Court overturned the conviction of Gregory Johnson (above) for flag burning in 1989 ~ Bill Pearce More definite rules have emerged from recent decisions regarding the Constitution’s equalprotection guarantees. It has long been clear, of course, that any government law or action that discriminates against certain classes of people (e.g., racial minorities) is subject to the strictest judicial scrutiny. In judicial shorthand, such discrimination is valid only if it is very narrowly tailored to fulfill a compelling government interest. But a series of decisions by the Rehnquist Court are important for applying the same exacting standards to the flip side of the discrimination coin. Thus, the Court has frequently invalidated even so-called affirmative discrimination — laws and other actions intended to benefit the victims of past discrimination — where the government has not been able to show both narrow tailoring and a compelling interest. In 1989, for example, the Court struck down a Richmond ordinance that set aside a fixed percentage of all city-contract work for minority businesses, because the city had not shown that the set-aside remedied specifically identifiable effects of past discrimination on a specifically identifiable class of minorities. The Court has applied the same rule at the federal level: in Adarand Constructors, Inc. v. Pena (1995) it rejected the presumption in a federal contracting program that all minority-owned businesses are socially and/or economically disadvantaged as a result of past discrimination. A series of important voting-rights decisions have similarly rejected attempts to remedy past discrimination by drawing the boundaries of congressional districts in an unnatural way to ensure that members of racial minorities will be elected to Congress. In addition to policing the relationship between government and the people, the Rehnquist Court has issued a number of important decisions helping to define, and perhaps even redefine, the relationship between the federal government and the States. The Court's decisions in this important area of national life essentially break down into two important categories. One line of decisions has substantially narrowed Congress’ authority to legislate in the name of regulating interstate commerce. From the late 1930s until relatively recently, the Court’s formerly narrow view of Congressional authority under Article 1, Section 8’s Commerce Clause expanded until that authority appeared virtually unlimited. Particularly since 1995, however, more recent decisions have marked a sharp reversal in that trend. Accordingly, it is not enough that the activity being regulated somehow affects interstate commerce, no matter how minor the effect or how remote the connection. At a minimum, the object or activity being regulated must have a “substantial” and demonstrable effect on interstate commerce, and there is some indication that even the activity itself may have to be fundamentally “economic” in nature. For example, the fact that violence against women may substantially deter women from engaging in activities affecting interstate commerce was not enough to save a 1994 law making all violent acts against women federal crimes. Despite its good intentions, the Court concluded, the law impermissibly invaded an area of regulation constitutionally left to the States. An earlier law banning the possession of firearms in or around schools, where it had not been shown that such possession had any meaningful effect on interstate commerce, met a similar fate. Importantly, other cases make clear that even when Congress’ power to regulate is unquestioned, it has no power to compel unwilling state agencies and officials to enforce federal regulatory regimes. For example, while Congress may have the power to enact federal laws regulating the sale of handguns, it cannot compel State law-enforcement personnel to implement or administer the programs necessary to do so. Another line of recent decisions has begun to establish important limits on the power of Congress to abrogate the State’s sovereign immunity under the Eleventh Amendment. In most instances, private citizens have no right to sue a State for money damages unless the State consents to be sued. Although Section 5 of the Fourteenth Amendment gives Congress the power to pass laws subjecting the States to private suits, it may only do so as a means of enforcing rights guaranteed by the Fourteenth Amendment itself. Thus, while Congress might make a State monetarily liable to a person against whom it has discriminated on the basis of race in violation of the Fourteenth Amendment, it has no similar power where a State discriminates on the basis of age without triggering the Fourteenth Amendment’s prohibitions. Moreover, the power to regulate activity within a State does not automatically carry the power to abrogate the State’s immunity from private suit. For example, while the Commerce Clause may give Congress the power to regulate Indian gaming within the States, that does not mean that Congress can authorize Indian tribes to sue a State that fails to negotiate a gaming permit in good faith. If such decisions revolve around facts and circumstances similar to those that have faced the Court since the founding of the Republic, other cases decided by the Rehnquist Court have been prompted by technological innovations that its predecessors may never have imagined. In the 1990 case Cruzan v. Director, Missouri Department of Health, for instance, the continuing march of medical progress forced the Court to establish a difficult balance between a patient’s right to die and State's interest in protecting human life. Often discussed in terms of its economic implications, the internet’s social ramifications became of topic of Supreme Court consideration in Reno v. ACLU (1997) when it rejected Congress’ first attempt to regulate speech in cyberspace. And in 2001, the Court had to decide whether police use of a thermal imager positioned outside a private home, to detect heat lamps being used to grow marijuana inside, violated the homeowner’s reasonable expectation of privacy. The Court held that it did in Kyllo v. United States. Political developments, too, have required the Court to decide some particularly novel legal issues in recent years. In Clinton v. Jones (1997), for example, the Court had to determine whether, and to what extent, a sitting President is immune from private lawsuits seeking damages arising out of unofficial acts that occurred before he took office. Three years later, in Bush v. Gore, the Court played a pivotal — and unprecedented — role in determining the outcome of the 2000 presidential election. The ultimate significance of these decisions, both to the Court and to the country, remains to be seen. In 1990, the Court held that Oregon could deny unemployment compensation to two Native Americans who were dismissed from their jobs for smoking peyote as part of tribal religious rituals under the state’s narcotics laws ~ Library of Congress "My gift of John Marshall to the people of the United States was the proudest act of my life" John Adams ~ President Marshall skillfully asserted the Court’s mightiest power and dignity in its first great crisis. In Congress, the lame-duck Federalists had passed a law to reduce the Court’s membership to five (one less Justice for a Republican President to name). Abolishing circuit duties for the Justices and providing other reforms, this law set up new circuit courts with 16 judges. Before leaving office, Adams had quickly named his judicial appointees - the famous "midnight judges." Enraged, one Republican from Kentucky called Adams’s tactics "the last effort of the most wicked, insidious and turbulent faction that ever disgraced our political annals." Jefferson took the oath of office on March 4, 1801. Without precedents and with passions running high, the Presidency and the Congress passed for the first time from one party to another. And some citizens were afraid that the judiciary was in mortal danger. Soon after his Inauguration, Jefferson wrote that the Federalists had "retreated into the judiciary as a stronghold, the tenure of which renders it difficult to dislodge them." But the Republicans repealed the lame-duck Judiciary Act, while horrified Federalists lamented, "the Constitution has received a wound it cannot long survive," and "the angels of destruction - are making haste." Meanwhile William Marbury of Washington went straight to the Supreme Court, looking for a commission as justice of the peace for the District of Columbia. Adams had appointed 42 such officials, the Senate frantically confirmed them, and Adams sat at his desk until late on his last night in office to sign their commissions. Then a messenger rushed the papers to the State Department for Marshall, still acting as Secretary, to affix the great seal of the United States. In the confusion some of the commissions went undelivered, Marbury’s among them. William Marbury ~ The Maryland Historical Society The Justices are seated on the dais on the far side of the chamber in this evening session of the House of Representatives, c. 1822 ~ The Corcoran Gallery of Art In December 1801, Marbury applied to the Court for a writ of mandamus ordering James Madison, the new Secretary of State, to give him his commission. The Court agreed to hear the case - a bold action, for rumor was saying the Justices "must fall" by impeachment. Then the Republican Congress repealed the Judiciary Act of 1801, which mandated sessions in December and June, and eliminated the August Term of the Court. As a result, the Justices did not sit from April 1802 to February 1803, when they heard argument in Marbury’s case. If the Court ordered Madison to produce that commission, he could simply ignore the order; President Jefferson would defend him. If the Court denied Marbury’s right to his commission, Jefferson could claim a party victory. Either way the Court’s prestige - and perhaps its members - must fall. Marshall found an escape from his dilemma. He announced the decision on February 24, and proclaimed the most distinctive power of the Supreme Court, the power to declare an Act of Congress unconstitutional. Point by point he analyzed the case. Did Marbury have a legal right to his commission? Yes. Would a writ of mandamus enforce his right? Yes. Could the Court issue the writ? No. Congress had said it could, in the Judiciary Act of 1789. It had given the Court an original jurisdiction in such cases - power to try them for the first time. But, said Marshall triumphantly, the Constitution defined the Court’s original jurisdiction and Congress could not change it by law. Therefore that section of the law was void. Marshall declared for all time the supremacy of the Constitution over any conflicting law. Other judges had said as much, but Marshall added: "It is, emphatically, the province and duty of the judicial department, to say what the law is." In renouncing a minor jurisdiction he asserted a great one, perhaps the greatest in the long annals of the law. The Supreme Court’s power as interpreter of the Constitution rests on this precedent to this day. A few days after the decision in Marbury v. Madison, the Court again amazed the Jeffersonians. They had passed a Judiciary Act in Congress, restoring the Court’s old membership and circuit duties. The Justices ruled that it was constitutional and for a while talk of impeachment died down. "Oyez! Oyez! Oyez! . . . the grand inquest of the nation is exhibiting to the Senate . . . articles of impeachment against Samuel Chase, Associate Justice. . . ." The Supreme Court was on trial; if Chase fell, Marshall might be next. Feared as a "ringleader of mobs, a foul mouthed and inflaming son of discord" when he led the Sons of Liberty in 1765, Chase was "forever getting into some . . . unnecessary squabble" as a Judge 40 years later. He campaigned openly for Adams. On circuit he tried Republicans without mercy. In 1803 he told a Baltimore grand jury that "modern doctrines" of "equal liberty and equal rights" were sinking the Constitution "into a mobocracy, the worst of all popular governments." His enemies saw their chance. The House of Representatives voted to bring him before the Senate for trial, charging that his partisan behavior--in and out of court--amounted to "High Crimes and Misdemeanors" under the Constitution. Vice President Aaron Burr had arranged a special gallery for ladies when the "grand inquest" opened on February 4, 1805. Burr had killed Alexander Hamilton in a duel and New Jersey wanted him for murder, but he presided sternly, rebuking Senators who were eating cake and apples. "We are indeed fallen on evil times," said one. "The high office of President is filled by an infidel; that of Vice-President by a murderer." Representative John Randolph of Roanoke, the brilliant, erratic Virginian, fought to prove Chase unfit for the Court. Luther Martin of Maryland, who could hold more law and more brandy than any other attorney of his time, led Chase’s defense. Marshall and 51 other witnesses testified. Amid "a vast concourse of people . . . and great solemnity," the Senators acquitted Chase on March 1. Jefferson called impeachment of Justices "a farce which will not be tried again," and he was right. For all his differences with the Republicans, John Marshall was no son of discord. Born in a log cabin near Germantown, Virginia, in 1755, he grew up near the frontier, with some tutoring for an education. He fought as an officer in the Revolution, almost freezing at Valley Forge. After the war he practiced law, and became the leading Federalist of his state. As a young attorney and an aging Chief Justice, he was sloppily dressed and wonderfully informal out of court, fond of spending hours with friends in taverns, law offices, and drawing rooms. Even in his sixties, Marshall was still one of the best quoits players in Virginia. When the Court met in Washington, the Justices stayed in a boardinghouse - the trip was too long, the session too short for their wives to accompany them - and Marshall’s geniality brightened their off-duty hours. Justice Joseph Story handed down a tale still told at the Court. On rainy days the Judges would enliven their conferences with wine; on other days Marshall might say, "Brother Story, step to the window and see if it doesn’t look like rain." If the sun was shining, Marshall would order wine anyway, since "our jurisdiction is so vast that it might be raining somewhere." Congress expanded that domain in 1807, creating a new circuit for Kentucky, Tennessee, and Ohio, and adding a seat to the Court. Jefferson appointed Thomas Todd, who had helped create the State of Kentucky out of his native Virginia. Life in Washington went on peacefully for months during the War of 1812. "Mrs. Madison and a train of ladies" visited the Supreme Court one day in early 1814, just as William Pinkney of Maryland, one of the country’s most celebrated lawyers, was ending an argument; "he recommenced, went over the same ground, using fewer arguments, but scattering more flowers." Rudely interrupting such diversions, the British arrived in August and burned the Capitol. Congress found shelter in the makeshift "Brick Capitol" where the Supreme Court building stands today. The Court, forced to shift for itself, met for a while in a house on Pennsylvania Avenue. Then it got temporary space in the Capitol. In 1819 it returned to its own semicircular room below the Senate Chamber. "A stranger might traverse the dark avenues of the Capitol for a week," reported a visitor from New York, "without finding the remote corner in which Justice is administered to the American Republic. . . ." Strangers traversing the Republic had other troubles. "I passed away my 20-dollar note of the rotten bank of Harmony, Pennsylvania, for five dollars only," a disgusted traveler complained at Vincennes, Indiana. State-chartered banks, private banks, towns, sawmills, counterfeiters - all issued notes freely. "Engravings," a Scotsman called them; no law required anyone to accept them at face value at legal tender. Everyone suffered from this chaos. Congress had chartered the second Bank of the United States in 1816 to establish a sound national currency, to issue notes it would redeem in gold or silver. By law, the government owned a fifth of the Bank’s stock and named a fifth of its directors; private investors had the rest. Unscrupulous characters got control of the Bank and mismanaged its affairs. In the South and West, where "engravings" flourished, the Bank’s branches made bad loans until the home office at Philadelphia issued new orders in August 1818; Call in those loans, don’t accept any payments but gold and silver or our own notes. Panic spread. Local banks demanded payment on their own loans, and refused to extend credit; people scrambled for money they couldn’t find; land went for a song at sheriffs’ auctions; shops closed; men who lost their last five dollars said bitterly, "the Bank’s saved and the people are ruined." State legislators decided to drive the Bank’s branches out of their domain. Maryland passed a tax law giving the Baltimore branch its choice: pay up handsomely or give up and leave. The branch ignored it. Maryland sued the cashier, James McCulloch, and won in its own courts. McCulloch took his case - that is, the Bank’s - to the Supreme Court where argument began on February 22, 1819. Splendid in his blue coat with big brass buttons, Daniel Webster spoke for the Bank Congress has power to charter it; Maryland has no power to tax it, for the power to tax involves a power to destroy; and never under the Constitution, may the states tax the Union into destruction. Luther Martin, Maryland’s Attorney General, argued for his state. Where does the Constitution say Congress has power to create a national bank? He asked. Nowhere! He thundered. It lists specific powers, and making banks is not one of them. Mr. Webster says it implies such a power. Nonsense! For the Court, Marshall defined the controversy: "a sovereign state denies the obligation, of a law . . . of the Union." An "awful" question, but "it must be decided peacefully." Because the Union is "emphatically, and truly, a government of the people," it must prevail over the states. To specific powers of Congress, the Constitution adds powers to make all laws "necessary and proper" for carrying them into effect. Marshall invoked "letter and spirit" to give that clause its meaning: "Let the end be legitimate, let it be within the scope of the Constitution," and Congress may use "all means which are appropriate . . . which are not prohibited." So the Bank was constitutional; no state might tax it. Maryland’s law was "unconstitutional and void." A disheveled Chief Justice Marshall (in torn breeches, at left) was elegant in speech as he chatted in taverns while riding circuit ~ The Supreme Court affirmed the legitimacy of the Bank of the United States (depicted here as a large woman vomiting coins to state banks) when Maryland mounted a challenge in 1819 ~ Library of Congress Library of Congress The Court’s ruling settled the conflict of law but not the political fight over the Bank’s power and states’ rights. Virginia’s legislature made a "most solemn protest" against the decision in McCulloch v. Maryland; Ohio officials took money by force from one Bank branch. Not until President Andrew Jackson vetoed the Bank’s recharter did that controversy die down. States’ rights against the powers of the Union - the issue became more explosive than ever when the country faced its first great quarrel over slavery, in 1819. Southerners in Congress threatened secession and civil war; a Georgian foresaw "our houses wrapt in flames." When the House was discussing a bill to make Missouri Territory a state, a New York Representative had suggested that Congress forbid slavery there. Southerners warned, "the Union will be dissolved." The reply flashed, "let it be so!" For months the furious debate went on. Then, in February 1820, Senator Jesse B. Thomas of Illinois offered a compromise: Maine to be a free state; Missouri a slave state, and the rest of the Louisiana Purchase north of 36' 30' free soil forever. Henry Clay supported the plan; early in March, President James Monroe signed the laws to carry it out. Apparently the crisis was over. But trouble flared again as Congress debated Missouri’s proposed constitution and states’ rights in general, and what had been a trivial criminal case quickly became a rallying point for states’ rights advocates and proponents of secession. In Norfolk, Virginia, P. J. and M. J. Cohen were charged with violating a state law by selling six tickets in a lottery established by Congress to pay for improvements in the District of Columbia. The law forbade all lotteries except the state’s own. A Norfolk court convicted the Cohens; they turned to the Supreme Court, pointing out that their lottery tickets were authorized by federal law. Virginia rose in wrath. Her General Assembly declared that the Court had no jurisdiction. Her lawyers fought the Cohens’ request for a hearing. They warned the Supreme Court against "exciting the hostility of the state governments," which would decide how long the Union should endure. Then, in March 1821, a second compromise was reached, bringing Missouri into the Union five months later as a slave state, but with guarantees designed to protect the rights of free Negroes and mulattoes. The issues of slavery and secession subsided, eventually to be resolved in blood. Undeterred by the impassioned controversy, Marshall gave an uncompromising ruling on Cohens v. Virginia. The Court would hear the case; it existed to resolve such "clashings" of state and Union power, to keep the national government from becoming "a mere shadow." Insisting on the power of his Court, the Chief Justice boldly met the threat of secession and the claims of state sovereignty; he upheld the Union as the supreme government of the whole American people. Then the Court heard argument on the merits of the case, and affirmed the sentence of the Norfolk court. The Cohens lost $100 - their fine - and costs. Southerners fumed at Marshall’s stand in the Cohens’ case. But in 1824, for once, a Marshall ruling met popular acclaim. Huzzas from the wharves greeted the steamboat United States as she chuffed triumphantly into New York harbor, her crew firing a salute, her passengers "exulting in the decision of the United States Supreme Court" That case was Gibbons v. Ogden. Robert Fulton successfully demonstrated a steam-powered vessel on the Seine at Paris in 1803. With his partner, Robert R. Livingston, he held an exclusive right from New York’s legislature to run steamboats on state waters, including New York harbor and the Hudson River. In 1807 steamer splashed up the Hudson to Albany; soon money flowed into their pockets. Anyone else who wanted to run steamboats on those waters had to pay them for the privilege; some Albany men attacked the monopoly in state courts, and lost. In 1811 the territorial legislature in New Orleans gave the partners a monopoly on the Mississippi. Now they controlled the two greatest ports in the country. New Jersey passed a law allowing its citizens to seize steamboats owned by New Yorkers; other states enacted monopolies and countermeasures until the innocent side-wheeler was turning into a battleship. Meanwhile three men of property went into business; then into rages, then into court. Robert Livingston’s brother John bought rights in New York bay; then he sublet his waters to former Governor Aaron Ogden of New Jersey, a quarrelsome lawyer. Ogden took a partner, Thomas Gibbons, equally stubborn and hot tempered. Under an old Act of Congress, Gibbons had licensed two steamboats for the national coasting trade, and now he invoked this federal law to get a suit against Ogden before the Supreme Court. The once obscure Supreme Court was now a focus of public interest. Ladies crowded lawyers to hear the case. Daniel Webster spoke for Gibbons on February 4, 1824; Ogden’s attorneys quoted established law and precedents for two days. But Marshall avoided shoals of precedents and veering winds of state laws to set his course by the Constitution - the clause giving Congress power to regulate commerce among the states. For the first time the Court defined these words; in them Marshall found vast new currents of national strength. More than buying and selling, he proclaimed, commerce is intercourse among nations and states; it includes navigation. For all this rich activity Congress may make rules; if it rules collide with state restrictions the latter must sink. New York’s law went down before an Act of Congress. State monopolies could not scuttle ships "propelled by the agency of fire." Steamboats would be as free as vessels "wafted on their voyage by the winds." With monopolies swept away, steamboat trade spread fast and freely. Soon, by that precedent, steam cars on rails spread across state lines, across the continent. Marshall watched, as changes came and went. "We must never forget," he said, "that it is a constitution we are expounding . . . a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." His actions made his words unforgettable. When Marshall gave the Presidential oath to his cousin Thomas Jefferson in 1801, the Supreme Court was a fortress under attack. It had become a shrine when he gave the oath to Andrew Jackson in 1829. New crises arose during Jackson’s Administration. Marshall carried on his work, concerned for the country’s future but not for his failing health. Jay had resigned after five years, Ellsworth after four; Marshall served from 1801 until his death in 1835. When he took the judicial oath the public hardly noticed, when he died the Nation mourned him. "There was something irresistibly winning about him," said the Richmond Enquirer. And Niles’ Register, which had long denounced his decisions, said, "Next to Washington, only, did he possess the reverence and homage of the heart of the American people." Cohens v. Virginia: Chief Justice Marshall strengthened the power of the Union when he ruled in 1821 that Virginia's law forbidding all lotteries but its own - including a national one established by Congress - was unconstitutional ~ Library of Congress Gitlow v. New York 7-2 vote, June 8, 1925 Benjamin Gitlow had been a prominent member of the Socialist party during the 1920s. He was arrested and convicted for violating the New York Criminal Anarchy Law of 1902, which made it a crime to attempt to foster the violent overthrow of government. Gitlow's publication and circulation of sixteen thousand copies of the Left-Wing Manifesto violated this Criminal Anarchy Act. The pamphlet went on to advocate the creation of a socialist system through the use of massive strikes and "class action...in any form." Gitlow was tried and convicted. He appealed the decision, arguing that his First Amendment right to freedoms of speech and press was violated. Although the New York courts held that the Communists must be held accountable for the results of their propaganda, the Supreme Court ruled in favor of Gitlow. It stated in its decision that "for present purposes, we may assume that freedom of speech and of press...are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the State." Facts of the Case: Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterences without propensity to incitement of concrete action. The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law. Question: Does the New York law punishing the advocacy of overthrowing the government an unconstitutional violation of the free speech clause of the First Amendment? Conclusion: Threshold issue: Does the First Amendment apply to the states? Yes, by virtue of the liberty protected by due process that no state shall deny (14th Amendment). On the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger. The rationale of the majority has sometimes been called the "dangerous tendency" test. The legislature may decide that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be upheld if not unreasonable, and the defendant will be punished even if her speech created no danger at all. Case Notes Brown v. Board of Education of Topeka, 1954 Brown v. Board of Education of Topeka, 1954 5. The Court ruled that in the field of public education the doctrine of separate but equal has no place. *Buckley v. Valeo, 1976 Facts of the Case: In the wake of the Watergate affair, Congress attempted to ferret out corruption in political campaigns by restricting financial contributions to candidates. Among other things, the law set limits on the amount of money an individual could contribute to a single campaign and it required reporting of contributions above a certain threshold amount. The Federal Election Commission was created to enforce the statute. Question: Did the limits placed on electoral expenditures by the Federal Election Campaign Act of 1971, and related provisions of the Internal Revenue Code of 1954, violate the First Amendment's freedom of speech and association clauses? Conclusion: In this complicated case, the Court arrived at two important conclusions. First, it held that restrictions on individual contributions to political campaigns and candidates did not violate the First Amendment since the limitations of the FECA enhance the "integrity of our system of representative democracy" by guarding against unscrupulous practices. Second, the Court found that governmental restriction of independent expenditures in campaigns, the limitation on expenditures by candidates from their own personal or family resources, and the limitation on total campaign expenditures did violate the First Amendment. Since these practices do not necessarily enhance the potential for corruption that individual contributions to candidates do, the Court found that restricting them did not serve a government interest great enough to warrant a curtailment on free speech and association. Decisions Decision: 7 votes for Buckley, 1 vote(s) against Legal provision: Article 2, Section 2, Paragraph 2: Appointments Clause Sort by Ideology Burger Brennan Stewart White Marshall Blackmun Powell Rehnquist Per Curiam with Argument Dred Scott v. Sanford, 1857 Facts of the Case: Dred Scott was a slave in Missouri. From 1833 to 1843, he resided in Illinois (a free state) and in an area of the Louisiana Territory, where slavery was forbidden by the Missouri Compromise of 1820. After returning to Missouri, Scott sued unsuccessfully in the Missouri courts for his freedom, claiming that his residence in free territory made him a free man. Scott then brought a new suit in federal court. Scott's master maintained that no pure-blooded Negro of African descent and the descendant of slaves could be a citizen in the sense of Article III of the Constitution. Question: Was Dred Scott free or slave? Conclusion: Dred Scott was a slave. Under Articles III and IV, argued Taney, no one but a citizen of the United States could be a citizen of a state, and that only Congress could confer national citizenship. Taney reached the conclusion that no person descended from an American slave had ever been a citizen for Article III purposes. The Court then held the Missouri Compromise unconstitutional, hoping to end the slavery question once and for all. Dred Scott v. Sandford, 1857 3. This decision upheld property rights over human rights. Engel v. Vitale, 1962 Facts of the Case: The Board of Regents for the State of New York authorized a short, voluntary prayer for recitation at the start of each school day. This was an attempt to defuse the politically potent issue by taking it out of the hands of local communities. The blandest of invocations read as follows: "Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us, our teachers, and our country." Question: Does the reading of a nondenominational prayer at the start of the school day violate the "establishment of religion" clause of the First Amendment? Conclusion: Yes. Neither the prayer's nondenominational character nor its voluntary character saves it from unconstitutionality. By providing the prayer, New York officially approved religion. This was the first in a series of cases in which the Court used the establishment clause to eliminate religious activities of all sorts, which had traditionally been a part of public ceremonies. Despite the passage of time, the decision is still unpopular with a majority of Americans. Decisions Decision: 6 votes for Engel, 1 vote(s) against Legal provision: Establishment of Religion Sort by Ideology Stevens Warren Black Frankfurter Douglas Clark Harlan Brennan Escobedo v. Illinois, 1964 Facts of the Case: Danny Escobedo was arrested and taken to a police station for questioning. Over several hours, the police refused his repeated requests to see his lawyer. Escobedo's lawyer sought unsuccessfully to consult with his client. Escobedo subsequently confessed to murder. Question: Was Escobedo denied the right to counsel as guaranteed by the Sixth Amendment? Conclusion: Yes. Justice Goldberg, in his majority opinion, spoke for the first time of "an absolute right to remain silent." Escobedo had not been adequately informed of his consitutitonal right to remain silent rather than to be forced to incriminate himself. The case has lost authority as precedent as the arguments in police interrogation and confession cases have shifted from the Sixth Amendment to the Fifth Amendment, emphasizing whether the appropriate warnings have been given and given correctly, and whether the right to remain silent has been waived. Decisions Decision: 5 votes for Escobedo, 4 vote(s) against Legal provision: Right to Counsel Sort by Ideology Warren Black Douglas Full Opinion by Justice Arthur J. Goldberg Gibbons v. Ogden, 1824 Facts of the Case: Clark Harlan Brennan Stewart White Goldberg S A New York state law gave two individuals the exclusive right to operate steamboats on waters within state jurisdiction. Laws like this one were duplicated elsewhere which led to friction as some states would require foreign (out-of-state) boats to pay substantial fees for navigation privileges. In this case a steamboat owner who did business between New York and New Jersey challenged the monopoly that New York had granted, which forced him to obtain a special operating permit from the state to navigate on its waters. Question: Did the State of New York exercise authority in a realm reserved exclusively to Congress, namely, the regulation of interstate commerce? Conclusion: The Court found that New York's licensing requirement for out-of-state operators was inconsistent with a congressional act regulating the coasting trade. The New York law was invalid by virtue of the Supremacy Clause. In his opinion, Chief Justice Marshall developed a clear definition of the word commerce, which included navigation on interstate waterways. He also gave meaning to the phrase "among the several states" in the Commerce Clause. Marshall's was one of the earliest and most influential opinions concerning this important clause. He concluded that regulation of navigation by steamboat operators and others for purposes of conducting interstate commerce was a power reserved to and exercised by the Congress. Gideon v. Wainwright, 1963 Facts of the Case: Gideon was charged in a Florida state court with a felony for breaking and entering. He lacked funds and was unable to hire a lawyer to prepare his defense. When he requested the court to appoint an attorney for him, the court refused, stating that it was only obligated to appoint counsel to indigent defendants in capital cases. Gideon defended himself in the trial; he was convicted by a jury and the court sentenced him to five years in a state prison. Question: Did the state court's failure to appoint counsel for Gideon violate his right to a fair trial and due process of law as protected by the Sixth and Fourteenth Amendments? Conclusion: In a unanimous opinion, the Court held that Gideon had a right to be represented by a court-appointed attorney and, in doing so, overruled its 1942 decision of Betts v. Brady. In this case the Court found that the Sixth Amendment's guarantee of counsel was a fundamental right, essential to a fair trial, which should be made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Justice Black called it an "obvious truth" that a fair trial for a poor defendant could not be guaranteed without the assistance of counsel. Those familiar with the American system of justice, commented Black, recognized that "lawyers in criminal courts are necessities, not luxuries." Decisions Decision: 9 votes for Gideon, 0 vote(s) against Legal provision: Right to Counsel Sort by Ideology Warren Black Douglas Clark Harlan Brennan Stewart White Goldberg Full Opinion by Justice Hugo L. Black Griswold v. Connecticut, 1965 Facts of the Case: Griswold was the Executive Director of the Planned Parenthood League of Connecticut. Both she and the Medical Director for the League gave information, instruction, and other medical advice to married couples concerning birth control. Griswold and her colleague were convicted under a Connecticut law which criminalized the provision of counselling, and other medical treatment, to married persons for purposes of preventing conception. Question: Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives? Conclusion: Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. The Connecticut statute conflicts with the exercise of this right and is therefore null and void. Decisions Decision: 7 votes for Griswold, 2 vote(s) against Legal provision: Due Process Sort by Ideology Warren Black Douglas Full Opinion by Justice William O. Douglas Clark Harlan Brennan Stewart White Goldberg Mapp v. Ohip, 1961 Facts of the Case: Dolree Mapp was convicted of possessing obscene materials after an admittedly illegal police search of her home for a fugitive. She appealed her conviction on the basis of freedom of expression. Question: Were the confiscated materials protected by the First Amendment? (May evidence obtained through a search in violation of the Fourth Amendment be admitted in a state criminal proceeding?) Conclusion: The Court brushed aside the First Amendment issue and declared that "all evidence obtained by searches and seizures in violation of the Constitution is, by [the Fourth Amendment], inadmissible in a state court." Mapp had been convicted on the basis of illegally obtained evidence. This was an historic -- and controversial -- decision. It placed the requirement of excluding illegally obtained evidence from court at all levels of the government. The decision launched the Court on a troubled course of determining how and when to apply the exclusionary rule. Decisions Decision: 6 votes for Ohio, 3 vote(s) against Legal provision: Amendment 4: Fourth Amendment Sort by Ideology Warren Black Frankfurter Douglas Clark Harlan Brennan Whittaker Full Opinion by Justice Tom C. Clark Marbury v. Madison, 1803 Facts of the Case: Dolree Mapp was convicted of possessing obscene materials after an admittedly illegal police search of her home for a fugitive. She appealed her conviction on the basis of freedom of expression. Question: Were the confiscated materials protected by the First Amendment? (May evidence obtained through a search in violation of the Fourth Amendment be admitted in a state criminal proceeding?) Stewart Conclusion: The Court brushed aside the First Amendment issue and declared that "all evidence obtained by searches and seizures in violation of the Constitution is, by [the Fourth Amendment], inadmissible in a state court." Mapp had been convicted on the basis of illegally obtained evidence. This was an historic -- and controversial -- decision. It placed the requirement of excluding illegally obtained evidence from court at all levels of the government. The decision launched the Court on a troubled course of determining how and when to apply the exclusionary rule. Decisions Decision: 6 votes for Ohio, 3 vote(s) against Legal provision: Amendment 4: Fourth Amendment Sort by Ideology Warren Black Frankfurter Douglas Clark Harlan Brennan Whittaker Full Opinion by Justice Tom C. Clark McCullough v. Maryland, 1819 Facts of the Case: In 1816, Congress chartered The Second Bank of the United States. In 1818, the state of Maryland passed legislation to impose taxes on the bank. James W. McCulloch, the cashier of the Baltimore branch of the bank, refused to pay the tax. Question: The case presented two questions: Did Congress have the authority to establish the bank? Did the Maryland law unconstitutionally interfere with congressional powers? Conclusion: In a unanimous decision, the Court held that Congress had the power to incorporate the bank and that Maryland could not tax instruments of the national government employed in the execution of constitutional powers. Writing for the Court, Chief Justice Marshall noted that Congress possessed unenumerated powers not explicitly outlined in the Constitution. Marshall also held that while the states retained the power of taxation, "the constitution and the laws made in pursuance thereof are supreme. . .they control the constitution and laws of the respective states, and cannot be controlled by them." Miranda v. Arizona, 1966 Facts of the Case: The Court was called upon to consider the constitutionality of a number of instances, ruled on jointly, in which defendants were questioned "while in custody or otherwise deprived of [their] freedom in any significant way." In Vignera v. New York, the petitioner was questioned by police, made oral admissions, and Stewart signed an inculpatory statement all without being notified of his right to counsel. Similarly, in Westover v. United States, the petitioner was arrested by the FBI, interrogated, and made to sign statements without being notified of his right to counsel. Lastly, in California v. Stewart, local police held and interrogated the defendant for five days without notification of his right to counsel. In all these cases, suspects were questioned by police officers, detectives, or prosecuting attorneys in rooms that cut them off from the outside world. In none of the cases were suspects given warnings of their rights at the outset of their interrogation. Question: Does the police practice of interrogating individuals without notifiying them of their right to counsel and their protection against self-incrimination violate the Fifth Amendment? Conclusion: The Court held that prosecutors could not use statements stemming from custodial interrogation of defendants unless they demonstrated the use of procedural safeguards "effective to secure the privilege against self-incrimination." The Court noted that "the modern practice of in-custody interrogation is psychologically rather than physically oriented" and that "the blood of the accused is not the only hallmark of an unconstitutional inquisition." The Court specifically outlined the necessary aspects of police warnings to suspects, including warnings of the right to remain silent and the right to have counsel present during interrogations. Decisions Decision: 5 votes for Miranda, 4 vote(s) against Legal provision: Self-Incrimination Sort by Ideology Warren Black Douglas Clark Harlan Brennan Stewart White Full Opinion by Justice Earl Warren Olmstead v. United States, 1928 Facts of the Case: Roy Olmstead was a suspected bootlegger. Without judicial approval, federal agents installed wiretaps in the basement of Olmstead's building (where he maintained an office) and in the streets near his home. Olmstead was convicted with evidence obtained from the wiretaps. This case was decided along with Green v. United States, in which Green and several other defendants were similarly convicted, based on illegally obtained wire-tapped conversations, for conspiracy to violate the National Prohibition Act by importing, possessing, and selling illegal liquors. This case was also decided with McInnis v. United States. Question: Did the use of evidence disclosed in wiretapped private telephone conversations, violate the recorded party's Fourth and Fifth Amendments? Conclusion: No. The Court held that neither the Fourth nor Fifth Amendment rights of the recorded parties were violated. The use of wiretapped conversations as incriminating evidence did not violate their Fifth Amendment Fortas protection against self incrimination because they was not forcibly or illegally made to conduct those conversations. Instead, the conversations were voluntarily made between the parties and their associates. Moreover, the parties' Fourth Amendment rights were not infringed because mere wiretapping does not constitute a search and seizure under the meaning of the Fourth Amendment. These terms refer to an actual physical examination of one's person, papers, tangible material effects, or home - not their conversations. Finally, the Court added that while wiretapping may be unethical no court may exclude evidence solely for moral reasons. When criticized for his opinion, Justice Taft mocked his foes as he wrote to a friend: "If they think we are going to be frightened in our effort to stand by the law and give the public a chance to punish criminals, they are mistaken, even though we are condemned for lack of high ideals." This case was reversed by Katz v. U.S. (1967). Plessy v. Ferguson, 1896 Facts of the Case: The state of Louisiana enacted a law that required separate railway cars for blacks and whites. In 1892, Homer Adolph Plessy--who was seven-eighths Caucasian--took a seat in a "whites only" car of a Louisiana train. He refused to move to the car reserved for blacks and was arrested. Question: Is Louisiana's law mandating racial segregation on its trains an unconstitutional infringement on both the privileges and immunities and the equal protection clauses of the Fourteenth Amendment? Conclusion: No, the state law is within constitutional boundaries. The majority, in an opinion authored by Justice Henry Billings Brown, upheld state-imposed racial segregation. The justices based their decision on the separatebut-equal doctrine, that separate facilities for blacks and whites satisfied the Fourteenth Amendment so long as they were equal. (The phrase, "separate but equal" was not part of the opinion.) Justice Brown conceded that the 14th amendment intended to establish absolute equality for the races before the law. But Brown noted that "in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races unsatisfactory to either." In short, segregation does not in itself constitute unlawful discrimination. Regents of the University of California v. Bakke, 1978 Facts of the Case: Allan Bakke, a thirty-five-year-old white man, had twice applied for admission to the University of California Medical School at Davis. He was rejected both times. The school reserved sixteen places in each entering class of one hundred for "qualified" minorities, as part of the university's affirmative action program, in an effort to redress longstanding, unfair minority exclusions from the medical profession. Bakke's qualifications (college GPA and test scores) exceeded those of any of the minority students admitted in the two years Bakke's applications were rejected. Bakke contended, first in the California courts, then in the Supreme Court, that he was excluded from admission solely on the basis of race. Question: Did the University of California violate the Fourteenth Amendment's equal protection clause, and the Civil Rights Act of 1964, by practicing an affirmative action policy that resulted in the repeated rejection of Bakke's application for admission to its medical school? Conclusion: No and yes. There was no single majority opinion. Four of the justices contended that any racial quota system supported by government violated the Civil Rights Act of 1964. Justice Lewis F. Powell, Jr., agreed, casting the deciding vote ordering the medical school to admit Bakke. However, in his opinion, Powell argued that the rigid use of racial quotas as employed at the school violated the equal protection clause of the Fourteenth Amendment. The remaining four justices held that the use of race as a criterion in admissions decisions in higher education was constitutionally permissible. Powell joined that opinion as well, contending that the use of race was permissible as one of several admission criteria. So, the Court managed to minimize white opposition to the goal of equality (by finding for Bakke) while extending gains for racial minorities through affirmative action. Decisions Decision: 5 votes for Bakke, 4 vote(s) against Legal provision: Equal Protection Sort by Ideology Brennan Stewart Burger Marshall Blackmun Powell Rehnquist Stevens White Judgment of the Court by Justice Lewis F. Powell, Jr. Split Vote Sort by Ideology Burger Brennan Stewart White Marshall Blackmun Powell Rehnquist Roe v. Wade, 1973 Facts of the Case: Roe, a Texas resident, sought to terminate her pregnancy by abortion. Texas law prohibited abortions except to save the pregnant woman's life. After granting certiorari, the Court heard arguments twice. The first time, Roe's attorney -- Sarah Weddington -- could not locate the constitutional hook of her argument for Justice Potter Stewart. Her opponent -- Jay Floyd -- misfired from the start. Weddington sharpened her constitutional argument in the second round. Her new opponent -- Robert Flowers -- came under strong questioning from Justices Potter Stewart and Thurgood Marshall. Question: Does the Constitution embrace a woman's right to terminate her pregnancy by abortion? Stevens Conclusion: The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters. As a result, the laws of 46 states were affected by the Court's ruling. Decisions Decision: 7 votes for Roe, 2 vote(s) against Legal provision: Due Process Sort by Ideology Burger Douglas Brennan Stewart White Marshall Blackmun Powell Full Opinion by Justice Harry A. Blackmun Schenk v. United States, 1919 Facts of the Case: During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment. Question: Are Schenck's actions (words, expression) protected by the free speech clause of the First Amendment? Conclusion: Holmes, speaking for a unanimous Court, concluded that Schenck is not protected in this situation. The character of every act depends on the circumstances. "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." During wartime, utterances tolerable in peacetime can be punished. *Swann v. Charlotte Mecklenburg Schools, 1972 Facts of the Case: After the Supreme Court's decision in 1954 in Brown v. Board of Education, little progress had been made in desegregating public schools. One example was the Charlotte-Mecklenburg, North Carolina, system in which approximately 14,000 black students attended schools that were either totally black or more than 99 percent black. Lower courts had experimented with a number of possible solutions when the case reached the Supreme Court. Rehnquist Question: Were federal courts constitutionally authorized to oversee and produce remedies for state-imposed segregation? Conclusion: In a unanimous decision, the Court held that once violations of previous mandates directed at desegregating schools had occurred, the scope of district courts' equitable powers to remedy past wrongs were broad and flexible. The Court ruled that 1) remedial plans were to be judged by their effectiveness, and the use of mathematical ratios or quotas were legitimate "starting points" for solutions; 2) predominantly or exclusively black schools required close scrutiny by courts; 3) non-contiguous attendance zones, as interim corrective measures, were within the courts' remedial powers; and 4) no rigid guidelines could be established concerning busing of students to particular schools. Decisions Decision: 9 votes for Charlotte-Mecklenburg Bd. of Ed., 0 vote(s) against Legal provision: Sort by Ideology Burger Black Douglas Harlan Brennan Stewart White Marshall Full Opinion by Justice Warren E. Burger United States v. Nixon, 1974 Facts of the Case: A grand jury returned indictments against seven of President Richard Nixon's closest aides in the Watergate affair. The special prosecutor appointed by Nixon and the defendants sought audio tapes of conversations recorded by Nixon in the Oval Office. Nixon asserted that he was immune from the subpoena claiming "executive privilege," which is the right to withhold information from other government branches to preserve confidential communications within the executive branch or to secure the national interest. Decided together with Nixon v. United States. Question: Is the President's right to safeguard certain information, using his "executive privilege" confidentiality power, entirely immune from judicial review? Conclusion: No. The Court held that neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified, presidential privilege. The Court granted that there was a limited executive privilege in areas of military or diplomatic affairs, but gave preference to "the fundamental demands of due process of law in the fair administration of justice." Therefore, the president must obey the subpoena and produce the tapes and documents. Nixon resigned shortly after the release of the tapes. Blackmun Weeks v. United States, 1914 Facts of the Case: Police entered the home of Fremont Weeks and seized papers which were used to convict him of transporting lottery tickets through the mail. This was done without a search warrant. Weeks took action against the police and petitioned for the return of his private possessions. Question: Did the search and seizure of Weeks' home violate the Fourth Amendment? Conclusion: In a unanimous decision, the Court held that the seizure of items from Weeks' residence directly violated his constitutional rights. The Court also held that the government's refusal to return Weeks' possessions violated the Fourth Amendment. To allow private documents to be seized and then held as evidence against citizens would have meant that the protection of the Fourth Amendment declaring the right to be secure against such searches and seizures would be of no value whatsoever. This was the first application of what eventually became known as the "exclusionary rule." U.S. v. Lopez, 1995 Facts of the Case: Alfonzo Lopez, a 12th grade high school student, carried a concealed weapon into his San Antonio, Texas high school. He was charged under Texas law with firearm possession on school premises. The next day, the state charges were dismissed after federal agents charged Lopez with violating a federal criminal statute, the Gun-Free School Zones Act of 1990. The act forbids "any individual knowingly to possess a firearm at a place that [he] knows...is a school zone." Lopez was found guilty following a bench trial and sentenced to six months' imprisonment and two years' supervised release. Question: Is the 1990 Gun-Free School Zones Act, forbidding individuals from knowingly carrying a gun in a school zone, unconstitutional because it exceeds the power of Congress to legislate under the Commerce Clause? Conclusion: Yes. The possession of a gun in a local school zone is not an economic activity that might, through repetition elsewhere, have a substantial effect on interstate commerce. The law is a criminal statute that has nothing to do with "commerce" or any sort of economic activity. Decisions Decision: 5 votes for Lopez, 4 vote(s) against Legal provision: 18 U.S.C. 922 Sort by Ideology Rehnquist Stevens O'Connor Scalia Kennedy Souter Thomas Ginsburg Breyer Full Opinion by Justice William H. Rehnquist Printz v. United States, 1997 Facts of the Case: The Brady Handgun Violence Prevention Act (Brady Bill) required "local chief law enforcement officers" (CLEOs) to perform background-checks on prospective handgun purchasers, until such time as the Attorney General establishes a federal system for this purpose. County sheriffs Jay Printz and Richard Mack, separately challenged the constitutionality of this interim provision of the Brady Bill on behalf of CLEOs in Montana and Arizona respectively. In both cases District Courts found the background-checks unconstitutional, but ruled that since this requirement was severable from the rest of the Brady Bill a voluntary background-check system could remain. On appeal from the Ninth Circuit's ruling that the interim background-check provisions were constitutional, the Supreme Court granted certiorari and consolidated the two cases deciding this one along with Mack v. United States. Question: Using the Necessary and Proper Clause of Article I as justification, can Congress temporarily require state CLEOs to regulate handgun purchases by performing those duties called for by the Brady Bill's handgun applicant background-checks? Conclusion: No. The Court constructed its opinion on the old principle that state legislatures are not subject to federal direction. The Court explained that while Congress may require the federal government to regulate commerce directly, in this case by performing background-checks on applicants for handgun ownership, the Necessary and Proper Clause does not empower it to compel state CLEOs to fulfill its federal tasks for it even temporarily. The Court added that the Brady Bill could not require CLEOs to perform the related tasks of disposing of handgun-application forms or notifying certain applicants of the reasons for their refusal in writing, since the Brady Bill reserved such duties only for those CLEO's who voluntarily accepted them. Decisions Decision: 5 votes for Printz, 4 vote(s) against Legal provision: 18 U.S.C. 922 Sort by Ideology Rehnquist Stevens O'Connor Full Opinion by Justice Antonin Scalia Scalia Kennedy Souter Thomas Ginsburg Breyer Clinton v. New York , 1998 Facts of the Case: This case consolidates two separate challenges to the constitutionality of two cancellations, made by President William J. Clinton, under the Line Item Veto Act ("Act"). In the first, the City of New York, two hospital associations, a hospital, and two health care unions, challenged the President's cancellation of a provision in the Balanced Budget Act of 1997 which relinquished the Federal Government's ability to recoup nearly $2.6 billion in taxes levied against Medicaid providers by the State of New York. In the second, the Snake River farmer's cooperative and one of its individual members challenged the President's cancellation of a provision of the Taxpayer Relief Act of 1997. The provision permitted some food refiners and processors to defer recognition of their capital gains in exchange for selling their stock to eligible farmers' cooperatives. After a district court held the Act unconstitutional, the Supreme Court granted certiorari on expedited appeal. Question: Did the President's ability to selectively cancel individual portions of bills, under the Line Item Veto Act, violate the Presentment Clause of Article I? Conclusion: Yes. In a 6-to-3 decision the Court first established that both the City of New York, and its affiliates, and the farmers' cooperative suffered sufficiently immediate and concrete injuries to sustain their standing to challenge the President's actions. The Court then explained that under the Presentment Clause, legislation that passes both Houses of Congress must either be entirely approved (i.e. signed) or rejected (i.e. vetoed) by the President. The Court held that by canceling only selected portions of the bills at issue, under authority granted him by the Act, the President in effect "amended" the laws before him. Such discretion, the Court concluded, violated the "finely wrought" legislative procedures of Article I as envisioned by the Framers. Decisions Decision: 6 votes for City of New York, 3 vote(s) against Legal provision: Article 1, Section 7, Paragraph 2: Separation of Powers Sort by Ideology Rehnquist Stevens O'Connor Full Opinion by Justice John Paul Stevens Scalia Kennedy Souter Thomas Ginsburg Breyer Judiciary Quiz 1. The Court strengthened the power of the United States to regulate any interstate business relationship. Federal regulation of television, pipelines, and banking are all based on this case. 2. The Court ruled that requiring school prayer was unconstitutional. 3. This decision upheld property rights over human rights. 4. The Court extended the exclusionary rule to illegal confessions. Suspects are guaranteed counsel upon request while under interrogation. 5. The Court ruled that in the field of public education the doctrine of separate but equal has no place. 6. All poor persons facing felony charges are guaranteed counsel. 7. The Court ruled in favor of the protection of citizens in courts against unreasonable searches. 8. Suspects must be warned of prior to any questioning the he/she has the right to remain silent, that anything he/she says can be used against him in a court of law. 9. The Court held that segregation was permitted if facilities were equal. 10. This ruling declared the Court's power to find act of Congress unconstitutional (judicial review). 11. This case involved wiretapping a suspect's communications and contains the first usage of the concept of "reasonable expectation of privacy" that would mark later 4th Amendment decisions. It was later reversed by subsequent decisions. 12. The Court ruled narrowly the discrimination questions be taken on a case by case basis. 13. The case involved the counseling of married persons on birth control. The Court ruled that "various guarantees create zones of privacy" in favor of the Director of Planned Parenthood. 14. This case involved a state's right to tax a national bank. The Court ruled in favor of the federal government claiming the states could not tax the federal government. 15. Evidence gained by illegal or unreasonable means cannot be used at the court trial of the person from whom it was seized. 16. The government will not deprive any person of life, liberty, or property by any unfair, arbitrary, or unreasonable action. 17. The Court upheld a woman's right to choose in cases of terminating pregnancies. The right to privacy was critical to the decision. 18. This case in significant because for the first time the exclusionary rule for illegally gained evidence was applied. It involved a postal inspector's attempt to prosecute an individual based on seized letters and private documents. 19. The Court limited free speech in time of war because it presented a "clear and present danger." The case created a precedent that 1st Amendment guarantees were not absolute. 20. The Court ruled that carrying a gun within one thousand feet of a school could not be consider a federal crime. 21. A president was ordered to surrender evidence, limiting executive privilege. 22. The Court refused to allow Congress to require local law enforcement officers to do background checks on those attempting to by guns. 23. Power of the government to take private property for a public use. 24. Power shared by federal and state courts to hear certain cases. 25. Order issued by a higher court directing a lower court to send up the record of a case for its review. Concepts www.landmarkcases.org Federalism The Federalist Papers Separation of Powers & Checks and Balances Equal Protection of the Laws National Supremacy Judicial Review Due Process (generally) Due Process and Police Interrogations Commerce Clause Necessary and Proper Clause Cases Marbury v. Madison (1803) McCulloch v. Maryland (1819) Gibbons v. Ogden (1824) Dred Scott v. Sandford (1857) Plessy v. Ferguson (1896) Korematsu v. United States (1944) Brown v. Board of Education (1954) Mapp v. Ohio (1961) Gideon v. Wainwright (1963) Miranda v. Arizona (1966) Tinker v. Des Moines (1969) Roe v. Wade (1973) U.S. v. Nixon (1974) Regents of CA v. Bakke (1978) New Jersey v. T.L.O. (1985) Hazelwood v. Kuhlmeier (1983) Texas v. Johnson (1989) Milestone Cases in Supreme Court History 1803 Marbury v. Madison was the first instance in which a law passed by Congress was declared unconstitutional. The decision greatly expanded the power of the Court by establishing its right to overturn acts of Congress, a power not explicitly granted by the Constitution. Initially the case involved Secretary of State James Madison, who refused to seat four judicial appointees although they had been confirmed by the Senate. 1819 McCulloch v. Maryland upheld the right of Congress to create a Bank of the United States, ruling that it was a power implied but not enumerated by the Constitution. The case is significant because it advanced the doctrine of implied powers, or a loose construction of the Constitution. The Court, Chief Justice John Marshall wrote, would sanction laws reflecting “the letter and spirit” of the Constitution. 1824 Gibbons v. Ogden defined broadly Congress's right to regulate commerce. Aaron Ogden had filed suit in New York against Thomas Gibbons for operating a rival steamboat service between New York and New Jersey ports. Ogden had exclusive rights to operate steamboats in New York under a state law, while Gibbons held a federal license. Gibbons lost the case and appealed to the U.S. Supreme Court, which reversed the decision. The Court held that the New York law was unconstitutional, since the power to regulate interstate commerce, which extended to the regulation of navigation, belonged exclusively to Congress. In the 20th century, Chief Justice John Marshall's broad definition of commerce was used to uphold civil rights. 1857 Dred Scott v. Sandford was a highly controversial case that intensified the national debate over slavery. The case involved Dred Scott, a slave, who was taken from a slave state to a free territory. Scott filed a lawsuit claiming that because he had lived on free soil he was entitled to his freedom. Chief Justice Roger B. Taney disagreed, ruling that blacks were not citizens and therefore could not sue in federal court. Taney further inflamed antislavery forces by declaring that Congress had no right to ban slavery from U.S. territories. 1896 Plessy v. Ferguson was the infamous case that asserted that “equal but separate accommodations” for blacks on railroad cars did not violate the “equal protection under the laws” clause of the 14th Amendment. By defending the constitutionality of racial segregation, the Court paved the way for the repressive Jim Crow laws of the South. The lone dissenter on the Court, Justice John Marshall Harlan, protested, “The thin disguise of ‘equal’ accommodations…will not mislead anyone.” 1954 Brown v. Board of Education of Topeka invalidated racial segregation in schools and led to the unraveling of de jure segregation in all areas of public life. In the unanimous decision spearheaded by Chief Justice Earl Warren, the Court invalidated the Plessy ruling, declaring “in the field of public education, the doctrine of ‘separate but equal’ has no place” and contending that “separate educational facilities are inherently unequal.” Future Supreme Court justice Thurgood Marshall was one of the NAACP lawyers who successfully argued the case. 1963 Gideon v. Wainwright guaranteed a defendant's right to legal counsel. The Supreme Court overturned the Florida felony conviction of Clarence Earl Gideon, who had defended himself after having been denied a request for free counsel. The Court held that the state's failure to provide counsel for a defendant charged with a felony violated the Fourteenth Amendment's due process clause. Gideon was given another trial, and with a court-appointed lawyer defending him, he was acquitted. 1964 New York Times v. Sullivan extended the protection offered the press by the First Amendment. L.B. Sullivan, a police commissioner in Montgomery, Ala., had filed a libel suit against the New York Times for publishing inaccurate information about certain actions taken by the Montgomery police department. In overturning a lower court's decision, the Supreme Court held that debate on public issues would be inhibited if public officials could sue for inaccuracies that were made by mistake. The ruling made it more difficult for public officials to bring libel charges against the press, since the official had to prove that a harmful untruth was told maliciously and with reckless disregard for truth. 1966 Miranda v. Arizona was another case that helped define the due process clause of the 14th Amendment. At the center of the case was Ernesto Miranda, who had confessed to a crime during police questioning without knowing he had a right to have an attorney present. Based on his confession, Miranda was convicted. The Supreme Court overturned the conviction, ruling that criminal suspects must be warned of their rights before they are questioned by police. These rights are: the right to remain silent, to have an attorney present, and, if the suspect cannot afford an attorney, to have one appointed by the state. The police must also warn suspects that any statements they make can be used against them in court. Miranda was retried without the confession and convicted. 1973 Roe v. Wade legalized abortion and is at the center of the current controversy between “pro-life” and “pro-choice” advocates. The Court ruled that a woman has the right to an abortion without interference from the government in the first trimester of pregnancy, contending that it is part of her “right to privacy.” The Court maintained that right to privacy is not absolute, however, and granted states the right to intervene in the second and third trimesters of pregnancy. 1978 Regents of the University of California v. Bakke imposed limitations on affirmative action to ensure that providing greater opportunities for minorities did not come at the expense of the rights of the majority. In other words, affirmative action was unfair if it lead to reverse discrimination. The case involved the University of Calif., Davis, Medical School and Allan Bakke, a white applicant who was rejected twice even though there were minority applicants admitted with significantly lower scores than his. A closely divided Court ruled that while race was a legitimate factor in school admissions, the use of rigid quotas was not permissible. 2003 Grutter v. Bollinger upheld the University of Michigan Law School's consideration of race and ethnicity in admissions. In her majority opinion, Justice O'Connor said that the law school used a “highly individualized, holistic review of each applicant's file.” Race, she said, was not used in a “mechanical way.” Therefore, the university's program was consistent with the requirement of “individualized consideration” set in 1978's Bakke case. “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity,” O'Connor said. However, the court ruled that the University of Michigan's undergraduate admissions system, which awarded 20 points to black, Hispanic, and American-Indian applicants, was “nonindividualized, mechanical,” and thus unconstitutional. Rehnquist ; After 30 years, chief sees a court more like him USA TODAY; McLean, Va.; Jun 28, 2002; Joan Biskupic; DC_ABS Several justices, breaking with [William Rehnquist], have shown concern about the fairness of state procedures and who is subject to the ultimate penalty. The court ruled this term that the mentally retarded should be exempt from execution and that juries, not judges, should decide whether the aggravating factors of a crime warrant the death penalty. Rehnquist was the only justice to disagree with both rulings. The number of death-row inmates who take advantage of the recent rulings will depend on how courts interpret a 1989 decision backed by Rehnquist that limits prisoners' ability to appeal, based on new high court rulings. There are areas in which Rehnquist has remained in the minority, notably on privacy and personal liberties. In 1973, he was one of two justices who dissented in Roe vs. Wade, which established a constitutional right to abortion. Rehnquist has continued to protest that decision and others that have struck down state's abortion restrictions. In recent years, he has been joined consistently by [Antonin Scalia] and [Clarence Thomas]. As nominees were vetted and political complications arose with some, Rehnquist himself came under consideration. Former [Nixon] aides have recounted how the president initially was wary of the blunt Midwesterner who wore Hush Puppies and bushy sideburns. Nixon mistakenly called him "Renchburg." But Nixon was impressed by his credentials -- Rehnquist had graduated first in his class from Stanford's law school in 1952 and had clerked for Justice Robert Jackson -- and his law-and-order reputation. 1. John Jay --Served as Chief Justice 1789-1795. Appointed by President Washington. 2. John Rutledge--Served as Chief Justice from August 1, 1795 to December 15, 1795. Appointed by President Washington. 3. Oliver Ellsworth--Served as Chief Justice 1796-1800. Appointed by President Washington. 4. John Marshall-- Served as Chief Justice 1801-1835. Appointed by President John Adams. 5. Roger Brooke Taney-- Served as Chief Justice 1836-1864. Appointed by President Jackson. 6. Salmon Portland Chase-- Served as Chief Justice 1864-1873. Appointed by President Lincoln. 7. Morrison Remick Waite-- Served as Chief Justice 1874-1888. Appointed by President Grant. 8. Melville Weston Fuller--Served as Chief Justice 1888-1910. Appointed by President Cleveland. 9. Edward Douglass White--Served as Chief Justice 1910-1921. Appointed by President Taft. 10. William Howard Taft--Served as Chief Justice 1921-1930. Appointed by President Harding. 11. Charles Evans Hughes--Served as Chief Justice 1930-1941. Appointed by President Hoover. 12. Harlan Fiske Stone--Served as Chief Justice 1941-1946. Appointed by President Franklin Roosevelt. 13. Fred Moore Vinson--Served as Chief Justice 1946-1953. Appointed by President Truman 14. Earl Warren--Served as Chief Justice 1953-1969. Appointed by President Eisenhower. 15. Warren Burger--Served as Chief Justice 1969-1986. Appointed by President Nixon. 16. William Rehnquist--Served as Chief Justice 1986-2005. Appointed by President Reagan. 17 . John Roberts, Jr.--Nominated by President George W. Bush September 5, 2005, confirmed by the Senate on September 29, 2005. Roberts took the oath of office on the day of his confirmation.