Midterm Flashcards
(30 cards)
Judicial Review
-Refers to the idea that federal courts have the power to determine the constitutionality of statutes and executive actions.
-This power has constitutional foundations in Article III saying that the judiciary has power that shall extend to all cases under the constitution and Article VI saying all judicial officials are bound to support the constitution.
-Ultimately, it’s established by Marbury v. Madison when SCOTUS nullify an act of Congress as unconstitutional.
-Whitington justifies judicial review based on its ability to impact entrenched interest, federalism, cross pressure coalitions and fractious coalitions.
Judicial Supremacy
-Refers to the idea that the court gets the last word on constitutional meaning.
-This is in direct contrast to “popular constitutionalism” in which the people have active and ongoing control over the constitution
-Supported by the idea that the SC is historically popular, the court strategically built its own power, as well as institutional dynamics.
-Judicial supremacy refutes the idea that the judiciary is the weakest branch, because they were able to build their own power of supremacy out of the vague framework of the constitution. For example, Cooper v. Aaron (1958) solidifies that “the federal judiciary is supreme in the expo
sition of the constitution”
-The benefits of judicial supremacy include protecting the meaning of the constitution, protecting minorities/public opinion/rights from tyranny AND when congress can not.
-Some of the dangers of judicial supremacy include the power of unelected officials to override elected officials, as well as an invalidation of state level or majority opinion.
Recognition Judges
-Format of judicial branch in which judges are appointed by elected officials. Federal judges are appointed by the President, while state level judges are elected. There are no necessary qualifications, as judges are recognized, then appointed.
-The United States uses this system, as it is a part of the common law system.
-This is in direct contrast to the career judges of civil law, where judiciaries work their way up the system with certain requirements, such as specialized training and education.
-With recognition of judges, there is an opportunity for politicized powers to work on judges, as well as allowing individual judges to have a legacy of influence, such as Marshall establishing judicial review.
Constrained Court
-A viewpoint regarding the Courts connection to social reform, saying that “courts will generally not be effective producers of significant social reform.”
-Rosenberg contributes this to the limited nature of constitutional rights, the lack of judicial independence, and the judiciary’s inability to develop appropriate policies and its lack of powers to implementation
-This is in direct contrast to the dynamic court view, stating that the courts are UNLIKELY to be effective producers of social reform, but it is possible
-We see this constrained court in action in McDonald v. Chicago (2011) as the ladder barely had any impact on gun control
Dynamic Court
-A viewpoint regarding the Courts connection to social reform, saying that courts will generally can be ineffective producers of significant social reform, but still CAN
-Rosenberg contributes this to the fact that courts are free from electoral constraints, as well as its indirect effects through publicity and litigation.
-This is in direct contrast to the constrained court view, stating that the courts are not likely to be effective producers of social reform
-Examples of the impact of the dynamic court include
-Early marriage equality suits pressured states to adopt domestic partnership laws
-United States v. Wong Kim Ark (1898) where the 14th amendment guarantees citizenship to all born in the us and nullifies parts of the Chinese Exclusion act of (1882)
Popular Constitutionalism
-Idea that Judicial interpretations “subject to direct supervision and correction by the superior authority of the people themselves”
-This is is based on the idea that the public constructs other departments of government such as Congress and the President who in turn construct the federal courts
-In our course, we looked at Texas Governor Abbott’s assertion of his right to interpret the Constitution in the Texas Border Controversy, where he disagrees with a SCOTUS ruling
-With this in mind, popular constitutionalism is a competing idea to judicial supremacy
Originalism
-Interpretive canon in which judges look to the “original intention” of framers of the constitution
-Direct contrast to living constitutionalism,
-Judges, such as Scalia, that support originalism claim it has a sense of stability, predictability and takes precedent into account
-Cons include the fact that it is difficult to employ and does not take into account modern problems.
-This is an extremely impactful concept on our course, because justices use originalist interpretation to analyze the meaning of the constitution in landmark cases.
-Origninalist argument of Trump v. Anderson: looking at insurrection in the context of 14th amendment, Civil War
Living Constitutionalism
-Interpretive canon in which the Constitution is read as a living document, and not held to the standards of original intent.
-Judges, such as Brennan and Marshall, that support living constitutionalism because it allows for social reform, evolution and adaptation, as well as removes the impracticalities of originalism and morals of founders
-Some cons include that it can appear to totally stray from the text, and ends up being a less secure argument for amending the constitution.
-This is impactful for social reform, because it can provide a more malleable tool for moral changes.
-Living Constitutionalism argument: engagement in insurrection takes many forms, in this day, speech/posts count as inciting violence and insurrection
Attitudinal Model
-A theory on judicial decision making determining that judges made decisions based upon their political ideologies and are unconstrained by legal concerns
-Instead, they use the law to rationalize policy preferences
-Some indicators of this include the correlation between votes + preferences of appointing precedents, vote coalitions, 5-4 decisions as well as biography and case votes
-This is important to the course because it aims to explain a strategic measure in which judges try to create policies from the bench.
Standing
-The standard in judicial procedure that determines a litigant’s right to argue a case.
-Lujan v. Defenders of Wildlife is a landmark case for heightening the requirements of standing
-To have standing, a litigant must prove injury, causation and redressability
-Standing is extremely important for reform within the court, because it can prevent or allow participation of landmark decisions.
Certiatorari
- Certiorari is a writ in which a higher court orders documents to review the decision from a lower court.
-The SC often does this when a lower court makes a ruling is of national significance or conflicts with SC percent or there is an appellate court split
-Granting certiorari requires 4 votes in SCOTUS
-This influences who gets to court, and how quickly they do in social reform cases.
Political Questions Doctrine
-A doctrine stating guiding federal courts to stay away from anything that could be defined as a politicized issue.
-Limits the ability of the federal courts to hear constitutional questions even where other justiciability requirements, such as standing, ripeness, and mootness, would otherwise be met.
-Pros include ensuring the judiciary are deciding legitimate cases, as well as expressing concern for judicial restraint.
-Cons include a lack of recourse, that PQD is too easy to invoke and that it causes judicial power to shrink
-If something is ruled a PQ, it is deferred to another branch, therefore empowering other parts of the government. Such as Rucho v. Common Cause (2019) where the federal court refuses to rule on federal gerrymandering.
-This can diminish social reform when judges refuse to weigh in on something.
Constitutional Evil
-A constitutional evil is an inherent, moral wrong written into law by the framers of the constitution. The constitution has evil based into it.
-Often in conversation with the Dred Scott decision, in which the original text of the Constitution assisted in an evil agenda.
-Slavery, gun laws, death penalty all have arguable constitutionalism based on original text
-Causes modern nation to ask how much evil you are willing to tolerate, and when to break away from evils
Convict Leasing
-A legal work around that allowed for the indentured servitude of incarcerated people: prisons loan prisoners to private businesses
-Functioned in the South after the Civil War because of financial weakness, prison overpopulation, racism, need for social control, war expenses, loss of main economic revenue (slavery) and taxation issues
-This was a “bipartisan” program that was undeniably profitable and viewed as politically progressive (prison in comparison to public executions)
-Turned black lawmakers against black citizens in order to stay in good graces
Justice John Harlan
-Landmark dissent on the Civil Rights Cases of 1883, road not taken at the time
-Argues that CRC interpretation of the 13th amendment was too narrow
-Defined “badge of servitude” concept as a transgression against the 13th amendment
-Concept that would later be taken into consideration in protect the rights of black americans w/ 14th amendment
-Landmark dissent on Plessy v. Ferguson, defining that the Constitution was color blind
State Action Doctrine
-Standard for which the federal government may intervene based on if the state itself is violating personal rights
-Specifically related to violations with the 14th amendment
-Famously used in the Civil Rights cases to invalidate of the Civil Rights act of 1875 on account of individual rights
-Desegregating public institutions/attack jim crow laws was unanswered under state action doctrine
-Therefore, does not protect people from private conduct
-United States v. Cruikshank, 92 U.S. 542, was a landmark decision of the United States Supreme Court ruling that the U.S. Bill of Rights did not limit the power of private actors or state governments despite the adoption of the Fourteenth Amendment.
State Neglect Doctrine
-Standard for which the federal government may intervene based on if the states do not punish civil rights violations, so the fed government intervenes to protect individuals who the states are not
-Targeted unpunished white supremacy such as KKK behavior in US vs. Yarborough: convicts clansman on federal count for harm against a black man
-If the states intervene, the federal government can not, even if it’s not productive
14th Amendment, Section 3
-Intended to block insurrectionists from elected offices.
-One of the “forgotten” provisions of the 14th amendment, as i hasn’t been contested much since the Civil War
-Enacted in the context of post Civil War America, where Northern political leaders wanted to prevent the government from being taken over by Confederates.
-In a modern standard, most relevant in the Trump v. Anderson case, in which only Congress has the power to enforce
Equal Rights Amendment
-Section 1: Equality of rights under the law shall not be denied or abridged by the the united states or by any state on the account of sex
-Section 2: Congress shall have the power to enforce, by appropriate legislation, provisions of this article
Ratified by 35 of the 38 necessary states, but not by the time
-Echos the purpose of the 13th/14th amendment, expanding to sex
-Pros: would protect rights on account of sex, potentially helpful for pro abortion initiatives
-Cons: could be used against people who do not identity as a certain sex/gender
Interest Convergence Dilemma
-Concept that the interest of black americans in achieving racial equality will only be accommodated when it converges with the interests of white Americans
-In the context of this course, it largely referred to the desegregation of schools. SCOTUS supported desegregation until bussing inconvenienced white children.
-For example, creating a sense of unity in American society was a good look during issues with communist countries abroad during the Cold War
-Directly related to Critical race theory
19th Amendment
-Women’s suffrage amendment that came into existence after activists continuously targeting states
-Strategic decision to expand the voting pool, under the understanding that white women would follow their husbands voting tendencies
-Minor v. Happensett (1875) made state bans on female suffrage, women not included in the 15th amendment
-Had to combat issues with registration, extra work for poll workers, stigma against female participation and state manipulation of deadlines
Civil Rights Act of 1875
-Act forbidding racial discrimination in places of accommodations
-Overruled during the Civil Rights Cases of 1883 based on imposition over individual rights
-Justices decided it was not supported by the 13th and 14th amendments, sec. 5 only gives right to protect against state violations of rights, not private violations
-Ruling ignores Harlan’s dissent for “badges of slavery” and the narrow reading of the 13th amendment is later reflected in Plessy v. Ferguson: separate but equal is ok
-Addressed private conduct, but left “social rights” more open ended
Voting Rights Act of 1965
-Response to racial discrimination on voting by suspending literacy tests, adding preclearance standard, adding coverage formula assignment of federal examiners
-Largely popular and successful for increasing registration and , reauthorized many times before Shelby and Brnovich v. DNC (2022) buffers its power
-South Carolina v. Katzenbach upholds the preclearance requirement, targeting states with worse history of voter discrimination, broadens congress’ authority to regulate voting
-Shelby County v. Holder later rules that preclearance and coverage no longer enforceable, outdated formula
-VRA loses GOP support after 2013, Congress has the opportunity to override statutory rulings, but has not done so
Marbury v. Madison 1803
-A landmark case that established the precedent for the federal judiciary to nullify provisions, and therefore guarantee judicial review.
-Asked three questions:
1Do the plaintiffs have a right to receive their commissions?
2Can they sue for their commissions in court?
3Does the Supreme Court have the authority to order the delivery of their commissions?
-Rules that the constitution does not warrant the supreme court to issue writs of mandamus to public officers and therefore declares the Judiciary Act of 1789 as void.
-In this course, it is often cited in landmark cases in which the court nullifies some provision of Congress to be an agent or deterrent of social reform.
