MIDTERM! Flashcards
1
Q
Majority Opinion
A
rules in favor of the defendant
2
Q
Dissenting (disagreement) Opinion
A
written by one or more judges expressing disagreement with the majority opinion of the court in a legal case
3
Q
Concurring (agree with someone) Opinion
A
written opinion files by a judge which agrees with the majority decision
4
Q
Judgement of the Court
A
decision of a court regarding the rights and liabilities of parties in a legal action or proceeding.
5
Q
Precedent
A
prior courts decision
6
Q
Ideology (Liberal–Conservative)
A
connection between legal systems and political ideas
7
Q
Partisanship (democrat, republican, independent)
A
prejudice in favor of a particular cause; bias
8
Q
Judicial Review
A
examine the actions of government and declare them unconstitutional
Not inherently Activist or restraint
9
Q
Counter majoritarian difficulty (CMD)
A
perceived problem with judicial review of legislative laws
10
Q
Normative issues
A
examination of prescriptive and evaluative questions about the law
11
Q
Empirical issues
A
study of how laws work in practice
12
Q
Judicial Independence
A
refers to the ability of courts and judges to perform their duties free of influence or control by other actors
13
Q
Judicial Sovereignty
A
the final say in the decision-making process of the state
14
Q
Federalism
A
a political system in which power and authority are divided between two or more levels of government
-seeks balance a number of values in state interest
15
Q
Levels of Government
A
Legislative, Executive, and Judicial
16
Q
Legislative
A
makes the laws (Congress)
17
Q
Executive
A
carries out the laws (President, Vice-President, Cabinet)
18
Q
Judicial
A
evaluates the laws (Supreme Court and other Courts)
19
Q
Ordinary Litigants
A
individuals or organizations involved in a legal cause (includes plaintiff or defendant)
20
Q
Political Litigants
A
individuals or parties involved in legal cases that have political implications or are related to political issues
21
Q
The Rule of Four
A
a practice in the U.S. Supreme Court that permits 4 of the 9 justices to grant a writ of certiorari
22
Q
Characteristics of Court’s Decision
A
Unanimous
Majority
Dissent
Concurring
Everything in between (in part decision)
23
Q
Content of Opinions
A
Background
Legal issues
Opposing views
Justification of conclusion
24
Q
Determining Certworthiness
A
Background
Presumption against Grant
Fungibility
Untrustworthiness (Frivolous)
25
Legal Features of the Court
Rules and behaviors
Mechanical jurisprudence
26
Mechanical jurisprudence
judges apply previous model to the facts of the case with disregard for the consequences
27
Who are considered for Supreme Court Justices?
Clerks
Specialized lawyers
Implementers
28
Political Features of the Court
Policy making
Ideology and preferences
Politicians in robes (Supreme Court Justices)
29
How might we systemically measure the relevance for court input and output?
Content analysis
Independent variables
Potential dependent variables
30
Measuring Judicial Ideology
Multiple methods
Qualitative
Quantitative
31
Martin--Quinn Score
metrics used to gauge the ideology of a U.S. Supreme Court Justice based on their voting record
32
Selection Process for Justices
Formal rules
Senate hearings
The real world
Recent Nominations
Serve for life
33
Process for Decision Making
Selecting cases
Written briefs
Oral arguments
Time limits
Lawyers & Justices
Rehnquist vs. Roberts
In person → Remote
Remote→ In person
34
SC--Process of Decision Making
Determine the Votes
Vote in the order seniority
Opinion Assignment
Some norms
Strategic behavior
Agenda Setting
35
3 Approaches
Legal Approach (Interpretation)
Attitudinal Approach (Ideology)
Rational Choice Approach (Preferences)
36
What is Judicial Review?
The power of the court to examine the actions of branches of government to decide if they are consistent with the constitution
37
What are the arguments FOR and AGAINST Judicial Review?
For: protection of judicial rights, check and balance, legal stability and precedent, promoting rule of law
Against: judicial activism, inconsistent decision
38
What is Judicial activism and how it is used?
Judges using their political views when decision making
39
What is Judicial Restraint and how it is used?
Judges limiting their power and only using the constitution
40
What factors influence staffing the Court?
-political ideology
-senate confirmation
-legal qualifications
-public opinion
-law school affiliation
41
How do cases arrive to the Supreme Court and what influence the justices "decide to decide"
-filed by federal court
-appealed by federal court
-goes to supreme court
-decision made by supreme court
-the case gets sent back
-the case gets heard
42
What is judicial independence?
ability of courts and judges to perform their duties free of influence or control by other actors
43
What is judicial sovereignty?
authority of a legal system to interpret laws within its own jurisdiction without interference
44
What is the legal approach to judicial decision making? (Include precedent, textualism, originalism, living constitutionalism).
interpretations of statues and constitutions
-textualism
-originalism
precedent
legal reasoning
judicial philosphy
prgamatic considerations
45
What lessons should we take from cases: McCulloh & Dred Scott and Chief Justices like Marshall and Taney?
-the powers of judicial interpretation in shaping national policy
-importance of considering the societal impact of judicial decisions
-the need for judges to balance legal precedent
46
How do you think McCloskey would evaluate SCOTUS gun and abortion decision along the lines of legitimacy and judicial governance?
By focusing on judicial activism and judicial restraint in terms of staying close to the text of the Constitution or challenging by making broad decisions that could reshape policy
47
Legitimacy in law
belief that the law and the people who enforce it are rightful authorities, and that they have the right to dictate behavior and be obeyed
48
Judicial governance
framework that governs the operations of a court system, including the policies, procedures, and traditions that determine how the courts are administered
49
What are the major eras of the Supreme Court?
1780s-1860s: establishing right to decide
1860s-1890s: reconstruction & post-civil war values
1890s-1937: economic regulation
1937-1969: accepting economic regulation; pro-civil rights & liberties
1969-TODAY: mixed civil liberties
50
Has the SCOTUS changed over time?
-Expansion of the number of justices
-restricting judicial jurisdiction
-implementing a code of conduct
51
Original Intent
the initial intent framers had of the Constitution
52
Textualism
interprets the meaning of a law or legal document based on the ordinary meaning of the text itself
53
Original Meaning or Understanding (originalism)
original meaning of provisions in the Constitution when they had adopted it
54
Stare Decisis
legal doctrine that instructs courts to let the rules of the law stand above it
55
Polling of Other Jurisdiction
exploring prior laws or ruling when comparing the law when addressing legal disputes
56
Pragmatism
using cost benefit analysis to avoid bad consequences of a decision
57
Process of Deciding to Decide
Selecting cases
Written Briefs
Oral Arguments
Determine Votes
Order of Voting
Opinion Assignment
58
What was the Framers Intent?
separation of powers
checks and balances
federalism
judicial independence
Was to create a balanced, limited, and representative government, distributed powers between the states and the federal government
59
Thomas Hobbes
impact on political philosophy
-absolute sovereignty
-emphasis on strong authority
-influence interpretations of constitutional clauses
60
Thomas Jefferson
judicial review: believed judiciary should not have the final say in interpreting the Constitution and feared it could lead to judicial supremacy
61
John Marshall
best known for establishing the principle of judicial review in the landmark case Marbury vs Madison (1803)
-influence on constitutional interpretation
-emphasized the importance of an independent judiciary
62
Edwin Meese
is an originalist
-has argued against judicial activism
-legacy influenced
63
Robert Bork
originalism and textualism
-advocacy for originalism, highlighted growing polarization
64
Justice Scalia
influential role in shaping constitutional law and commitment to originalism & textualism
65
Randy Barnett
influenced the SC
66
McCulloch vs Maryland (Banking Case)
landmark of the SC case that addressed key issues about the scope of federal power and the relationship between federal and state government
67
The Taney Years
Rules that Congress had no power to limit slavery in the territories and that free African Americans could not be a citizen
68
McCloskey and Levinson
-pragmatism in judicial decision making
-institutional resilience
-judicial supremacy
-criticism of constitutional structure
69
Strengths and Weaknesses of legal approaches in judicial decision making
originalism:
strength-consistency, judicial restraint,
weakness-historical ambiguity, inflexibility
textualism:
strength-predictability, clarity
weakness-context matters, emphasize literalism, vagueness in language
original intent:
strength- stability, limits judicial activism,
weaknesses-selective interpretation
polling jurisdiction:
strength-promotes legal consistency
weaknesses-different legal systems, risk of judicial activism, legitimacy
precedent (stare decisis):
strength-efficiency, legal stability
weakness-inflexibility, selective application
pragmatism:
strength-flexibility,
weaknesses- inconsistency, difficulty measuring outcomes
70
Dred Scott
originalist, majoritarian, equality
Dred Scott vs. Sandford: did not extend citizenship to African Americans
71
Thurgood Marshall
Roe vs. Wade
-trailblazer
-influence on future justices
72
How are federalism and slavery integral to understanding the pre-Civil War Supreme Court?
by interpreting the constitution surrounding the issue of slavery
-highlighting the complexities of state versus federal authority
73
What cases dominated different eras of the Supreme Court?
FOUNDING ERA
Malbury vs. Madison
McCullough vs Maryland
Gibbons vs Ogden
CIVIL WAR AND RECONSTRUCTION
Dred Scott vs. Sandford
Brown vs. Education
Roe vs. Wade
Dobbs vs Jackson Women's Health Organization
Plessy vs Ferguson
74
What is one thing you think the Court should do differently in the future and why?
-restoring trust
-educating the public
-fostering civic engagement
75
What trend(s) if any do you notice in how guns are treated in American Constitutional law?
shift in interpretation
legal framework
expansion of legal precedents
judicial scrutiny
gun control measures
political debates/trends
76
What is one key difference between the majority and dissenting opinions in DC v. Heller (2008)? Scalia wrote the majority opinion and Breyer wrote the dissenting opinion.
-majority opinion in heller
-prior interpretations
77
What is one key difference between the majority and the dissenting opinions in each case in NY State Rifle & Pistol Assoc. v. Bruen (2022)? The majority opinion is by Thomas and the dissenting opinion is by Breyer
majority opinion focused on the historical context of the 2nd amendment and emphasized the right to carry a handgun in public for self-defense
78
Explain the relationship between perceived ideology of the nominee and votes to confirm
Perceived ideology of judicial nominee has been the most significant factors influencing votes to confirm in polarized politics.
The relationship is driven by partisan alignment, influence on key issues, judicial polarization, lifetime appointments
79
The Court's "three role problems" and what McCloskey means by the "arts of judicial governance."
1. Judicial Independence
2. Judicial Review
3. Judicial Sovereignty
McCloskey uses this to describe the careful and strategic ways that the SC navigates its role in American governance.
80
Explain the combined effect of qualifications and ideology on votes to confirm.
Qualification: legal experience, education, judicial record, viewing expertise, polarization will increase
Ideology: support based on their expected decisions on key issues; has become primary lens through voting confirmations
81
Explain whether the current selection process produces "high quality" justices and what you'd change about the current system. Make sure to explain why the system works, doesn't work or something else. Be specific and up your claims with course material.
The current selection process produces somewhat of a "high quality" justices because within the process the criteria is looked upon several factors such as qualification and experience, legal perspective, and carefully examining the nominee.
What I would change would incorporating more diversity, and diverse legal views and giving appointment times in order for justices to resign for the position to give other nominee's a chance to be on the Court.
82
Explain: I am going to appeal this case all the way to the Supreme Court.
It means that an individual would test the decision of the lower courts by going to the highest court (Supreme Court) in getting their case reviewed.
83
Legal Approach (Interpretation)
involves precedent and original intent
84
Attitudinal Approach (Ideology)
law refers to the idea that judges decide cases based on their ideological attitudes and values
85
Rational Choice Approach (Preferences)
individuals making decision based on the analysis of which candidate will best serve their interests
86
John McCloskey
political theorists known for views of democracy and judicial governance
87
Uncertainty of language in the Constitution
Analyzing the constitutional purposes and principles with its interpretation
88
Marbury vs Madison
Established the principle of judicial review
-Gives the courts their greatest power: judicial review
-Judicial review: allows courts to determine constitutionality of laws passed by Congress, States and Executive Orders of President
89
Political Ideology
set of beliefs about who ought to rule, what principles ought to be used to govern, and what policies ought to pursue
