Unit 4: The Judicial Branch

Question 1

Definition of Jurisdiction

Answer 1

The authority vested in a particular court to hear and decide the issues in a particular case

Question 2

What are the two types of jurisdiction

Answer 2

Original and appellate

Question 3

What is original jurisdiction?

Answer 3

The courts authority to hear disputes as a trial court, then these courts determine the facts of a case. They involve state governments of public officials.

Question 4

What is appellate jurisdiction?

Answer 4

A courts ability to review or revise cases already decided by lower trial courts. (The Supreme Court has appellate jurisdiction in all other cases)

Question 5

Explain the Judiciary Act of 1789

Answer 5

It established the three-tiered structure of the court. Federal district courts {At least one in each state}, circuit courts (court of appeals) {Like a trial court}, and the Supreme Court.

Question 6

What are the origins of the federal judicial system?

Answer 6

The constitution made the judicial branch independent and no political in Article 3. Federalist 78. judiciary Act 1789 which set up the jurisdiction of the Supreme Court and established the three tiered court system. They strived to be an independent, nonpolitical branch so they would not give Washington legal advice. They used principles of nationalism and federal supremacy.

Question 7

Analyze the background, constitutional issue, decision, and impact of Marbury VS. Madison

Answer 7

Background~Adam’s appointed William Marbury in the last moments of his administration as Justice of Peace. Adam’s Secretary of State failed too deliver Marbury’s commission so he asked James Madison to deliver. Jefferson refused so Marbury filed a writ of mandamus-an order that an action must be performed-Stating Madison needed to deliver the papers because of the Judiciary act of 1789.
Constitutional Issue-Does the Supreme Court have the power to interpret a law or statute passed by congress?
Decision-Chief Justice John Marshall and the Supreme Court ruled that Marbury had a right to his commission, but they also ruled that the law he was using to bring the case to court (the Judiciary Act of 1789) was unconstitutional. Yes they do.
Impact-This was the court’s first elaborate discussion of the power of judicial review. The constitution is supreme. the court is expected to interpret laws of the US. It established the implied power of judicial review. They can check if acts align with the constitution

Question 8

What is a precedent?

Answer 8

An act that future people follow.

Question 9

What is a stare decisis

Answer 9

“Let the decision stand” Subordinate courts must rule the same way that superior court have ruled

Question 10

Different types of constitutions

Answer 10

The US constitution which is the supreme law of the land. There are also state constitutions which are supreme within their boarders unless they violate the US constitution

Question 11

Basics of the judicial branch

Answer 11

There was no judicial branch under the articles of confederation. State courts had the sole authority over all cases. The judicial branch created article III of the constitution

Question 12

Describe the dual system of courts

Answer 12

The federal courts handle criminal and civil cases involving federal law or any constitutional issue. The state courts handle criminal and civil cases involving state laws

Question 13

What are the types of cases

Answer 13

Criminal cases which is when the government or state charges an individual with violating one or more laws. Civil cases are when a government or state resolves a dispute between two parties. Ex) suing over property

Question 14

Describe the federal court structure

Answer 14

Supreme Court-highest court, 9 judges, meets in DC, appeals: jurisdiction through certiorari process, limited original jurisdiction over some cases
Court of Appeal-Intermediate level, 12 regional “circuit” courts including DC circuit. No original jurisdiction strictly appellate
District courts-lowest level,94 judicial districts in 50 states and territories. No appellate jurisdiction. Original jurisdiction over most cases.

Question 15

What makes a federal crime?

Answer 15

It was made illegal by federal legislation or if it occurs of federal property

Question 16

Types of federal courts

Answer 16

A. District courts-created by the judiciary act 1789. Every state has one; more people=more district courts. 94 district courts. Has original jurisdiction, no appellate. Decides civil and criminal cases arising under constitution and federal law. Judges are appointed for life and can only be removed by impeachment with a guilty verdict
B. Courts of Appeal-Created by congress in 1891 to lessen the Supreme Courts workload. Decide appeals from US district courts. 12 US court of appeals. States are divided into circuits or geographic judicial districts. Appellate jurisdiction only. Panel of 3 judges decide cases in court of appeals. Judges serve for life
C. Supreme Court-Only court created directly by the constitution. Highest court. Final authority in dealing with questions arising from the constitution, federal laws, or treaties. Has both original and appellate jurisdiction. 90% of cases are appeals from lower federal courts. Congress establishes the size of the Supreme Court with 8 associate judges and 1 chief justice. Justices are nominated.

Question 17

Define Writ of Certiorari

Answer 17

Latin “to be informed” it is a request for the Supreme Court to order up records from a lower court to review the case

Question 18

Define Rule of Four

Answer 18

It is when at least 4 justices vote to hear a case

Question 19

Define the solicitor general

Answer 19

They are considered the ninth in a half member. They are appointed by the president and is the fourth ranking member of the Department of justice. They are responsible for handling appeals on behalf of the US government to the Supreme Court. They are an important cue for predicting if the court will hear a case

Question 20

Define Amicus Curiae

Answer 20

“Friend of the Court” Amici may file briefs or appear to argue their interests orally before the court. The office of the solicitor general can appear as an amicus curiae

Question 21

Define Judicial Restraint

Answer 21

The court should allow the decisions of other branches to stand, even if they offend a judges principles

Question 22

Define judicial activism

Answer 22

A philosophy of judicial decision making that posits judges should use their power to broadly further justice

Question 23

Define strict constructionists

Answer 23

Advocates of judicial restraint agree that judges should be strict constructionists-interpreting the constitution as the framers wrote and originally intended it

Question 24

What do petitions of writs of certiorari have to meet?

Answer 24

The case needs to come from US court of appeals, court of military appeals, district court, or state court. It also must involve a federal question, constitutional law, federal statute, action or treaty. The reasons why the court should accept the case and the legal argument supporting it. The clerk sends it to the chief justice who then sends it to the individual justices offices. It ends when all the justices vote and certiorari is granted according to the rule of four.

Question 25

What is the role of clerks?

Answer 25

They assist the justices. They read and summarize cases, research materials and help justices write their opinions

Question 26

Evaluate the process of arguing a case before the Supreme Court

Answer 26

Once the court accepts to review a case, attorneys prepare their written arguments.Usually only immediate parties in the case participate in arguing orally however the solicitor general or a deputy can make an appearance as an amicus curiae. They have 30 minutes to present their case. Oral arguments allow the public/press to see the workings of the court, makes sure that the justices hear the arguments, provides the court with more info (like political roles).

Question 27

How does the Supreme Court come to a decision?

Answer 27

Justices meet in a closed conference twice a week while the court hears the oral arguments to convince each other their side and try to sway their votes. They formulate a formal opinion after the decision is made. If the Chief justice is the majority party, then they decide who will write the opinion, if they are in the minority then it goes to the most senior justice in the majority. The opinions reflects the views of at least five justices and explains the legal reasons justifying the decision and sets a percent. When creating the final opinion, formal caucusing and negotiations take place. Justices agreeing with the outcome but not the legal rationale can file concurring opinions. Justices who don’t agree with the outcome can file dissenting opinions.

Question 28

Evaluate the role of the Supreme Court in policy making

Answer 28

Judicial review through Marbury v. Madison, setting precedents (stare decisis) ruling the way they have in the past,

Question 29

Identify the current US Supreme Court members

Answer 29

Clarence Thomas (doesn’t ask questions), Samuel Alito (strip search sammy), Sonia Sotomayor (first Hispanic), Elena Kagan (no past judicial experience), Neil Gorsuch, Brett Kavanaugh (SA/rape allegations), Amy Coney Barrett (nominated right after RBG died), Ketanji Brown Jackson, John Roberts (CHIEF JUSTICE)

Question 30

What are the 6 informal considerations the president takes into account while appointing federal justices?

Answer 30

Competence/experience, ideology, rewards (rulings in your favor in the past), pursuit of political support (trying to win over certain people), religion, race/gender

Question 31

Analyze the process by which federal judges are selected

Answer 31

The president appoints and the senate confirms. There is an investigation of the nominees. The White House Staff looks out for the presidents political interests, the FBI runs background checks, making sure there are no illegal activities, ABA (American Bar Association) looks out for judicial philosophy, temperament, consistancy. They all report back their findings to the chief of staff. Then the nomination occurs and the senate judiciary committee (operating through subcommittees) investigates and senatorial courtesy is applied. Then lobbying by interest groups occurs. Then the Senate judiciary committee hears it (litmus test-interrogating nominees on controversial issues) and a vote on full senate takes place.

Question 32

Define Senatorial Courtesy

Answer 32

It is an unwritten rule that gives a senator the right to block or delay a presidential nominee. When a president nominates someone, the senators from the nominees home state are given the authority to approve or disapprove of the nomination

Question 33

Describe the essential case Engel V. Vitale

Answer 33

Background: A school in NY required students to recite a prayer. Parents said that this violated separation of church and state. Constitutional issue: Does nondenominational (Not one specific religion) prayer recited in a school district violate the first amendment separation of church and state? Majority opinion: This was unconstitutional, public schools can’t hold prayer whether they were voluntary or non denominational.This violated the establishment clause. Lasting impact: Schools can’t sponsor prayer because it’s establishing a religion.

Question 34

Describe the essential case Wisconsin V. Yoder

Answer 34

Background: Wisconsin passed a law requiring compulsory attendance at school. 3 parents did not want to send their children to school after 8th grade even though students are required by law to attend school until 16. High school attendance was contrary to their religious beliefs. Constitutional issue: Does the requirement of students to attend school until 16 violate the first amendment by criminalizing the conduct of parents who refused to send their children to school for religious beliefs? Majority opinion: Unconstitutional, free exercise of religion for individuals outweighed the states interest for attendance after 8th grade. Lasting impact: it made potential exceptions for religious groups from state laws EVEN if the law a secular intent

Question 35

What are the freedoms in the first amendment?

Answer 35

Freed in if religion, speech, press, assembly, and petition

Question 36

What is the establishment clause?

Answer 36

First clause in the first amendment and it prevents a government from establishing one official religion or favoring one religion over another.A strict separation of church and state. Established the lemon test. The government can not fund or endorse religious activities or institutions

Question 37

What is the free exercise clause

Answer 37

This protects the rights to practice a religion freely or no religion without government interference. This right is not absolute and religious practice can be limited if they violate a law or infringe on the rights of others.

Question 38

ESSENTIAL: tinker V. Des Moins

Answer 38

Background: In a silent protest of the Vietnam war the tinkers attending des moins high school planned to wear black armbands. They were told that they were not allowed to wear the armbands because it disrupts the education of the students. They were suspended and they sued the school saying that their free speech was violated. Issue: is it a right to free speech to wear wristbands in protest of the Vietnam War Opinion: UNCONSTITUTIONAL, they created symbolic speech and ruled in favor of the tinkers Lasting Impact: you don’t have to use your voice in order to have first amendment freedoms. It created a symbolic class of speech called symbolic speech

Question 39

ESSENTIAL: New York Times v. US

Answer 39

Background: the US wanted The NY Times not to post classified studies on the Vietnam policy. It was leaked to the US defense analyst who was opposed to US involvement in the war. He wanted to know more about the decision ,asking process during the war. He then found out that the government was lying about the progress on the war and were covering up the failure. Two news sources want to publicize the pentagon papers. The government said that it was in the interest of national security hence why they were hiding it Issue: can the president stop publication of the news from the Vietnam war because of the impact it will have? Opinion: unconstitutional, prior restraint is almost never valid. People have the right to speech and press. You can’t leak classified documents but if the information gets out then you can’t take it back Lasting impact: the government can’t stop people from speaking freely, no matter what, even if something is going bad. It maintains the court standard of prohibiting prior restraint of the press. Politically, it intensified the antagonistic relationship between the government and the press.

Question 40

Prior Restraint

Answer 40

Constitutional doctrine that prevents the government from prohibiting speech of publication before the fact; generally held in violation of the first amendment

Question 41

How did the supreme courts efforts to limit the freedom of speech?

Answer 41

Alien and Sedition Acts-banned the criticism of the federalist government, making publications of false scandalous writing against the government a criminal offense, Lincoln during the civil war- did not want people posting criticisms on the government, Espionage act, clear and present danger test, fighting words doctrine, incitement (Brandenburg test)

Question 42

Clear and present danger test

Answer 42

Tests articulated by the supreme court in Schenck v. US to draw the line between protected and unprotected speech. The courts look to see wether the words used could create a clear and present danger that they will bring about substantive evils that congress seeks to prevent

Question 43

Direct incitement test

Answer 43

Tests articulated by the Supreme Court in Brandenburg V. Ohio holding that the first amendment protects advocacy of illegal action unless imminent lawless action is intended and likely to occur.

Question 44

Analyze symbolic speech

Answer 44

Symbols, signs, protests etc and other methods of expression generally considered to be protected by the first amendment.

Question 45

Libel

Answer 45

A falsely written statement that defames the character of a person

Question 46

Slander

Answer 46

If the libel statement is spoken, it is slander

Question 47

Fighting words

Answer 47

Words that by their very utterance inflict injury or tend to incite an immediate breach of peace. They are not protected by the first amendment. Federal and State governments can regulate fighting words which include profanity, obscenity, and threats

Question 48

What is the due process clause

Answer 48

Nor shall any state deprive any person of life, liberty or property without due process of law

Question 49

Break down Selective incorporation

Answer 49

Selective: specific, picky, particular Incorporation: integrate, synthesize, inclusion, assimilation, make part of

Question 50

Writ of habeas corpus

Answer 50

Petition requesting that a judge order to prove that a prisoner is being held lawfully and that allows the prisoner to be freed if the governments case does not persuade the judge. Habeas corpus rights imply that prisoners have a right to know what charges are being made against them

Question 51

Ex post facto law

Answer 51

The constitution in article one prohibits ex post facto laws. A law that makes an act punishable as a crime even if it was legal at the time it was committed

Question 52

Bill of attainder

Answer 52

The constitution also prohibits this. A law declaring an act illegal without a judicial trial

Question 53

What is the fourth amendment?

Answer 53

It protects from unreasonable search and seizure. A warrant must be presented to search

Question 54

Why are warrants important

Answer 54

They prevent the government from making general searches. The police can search: a person arrested, things in plain view, places that the accused person could reach that are in the arrestees immediate control.

Question 55

When can warrantless searches occur?

Answer 55

They can occur if the police think that someone is committing a crime or is about to, police can frisk the suspected person. If there is consent from everyone then no warrant is needed. They can search property outside (like a field), even if it has the no trespassing sign. And in drunk driving situations. A firefighter can break in to stop the fire but if they want to investigate the cause then they need a warrant

Question 56

What is the 5th amendment?

Answer 56

It protects a person charged with a crime. A person can’t be a witness against themselves (self incrimination). Prevents the national government from denying life, liberty, or property without due process. The government can’t take property without just compensation.

Question 57

What is the exclusionary rule?

Answer 57

It prohibits the police from using illegally seized evidence at trial. Evidence gotten illegally can be inadmissible in state court. Courts can allow illegally seized evidence if they feel that this evidence would have been found eventually with the continuing investigation.

Question 58

Analyze the due process protections afforded by the 5th amendment with the focus on the right to remain silent and double jeapordy

Answer 58

Criminal defendants do not have to take a stand and a judge can’t mention their failure to do so and lawyers can’t apply that they are guilty. Prosecutors can’t use evident of a defendants statement or confessions that a person did not make voluntarily. If a jury acquits a defendants statement for a murder charge then the defendant can not be retried in that jurisdiction for the offense even if new information if found that could further their guilt. If the defendant was tried in state could then they COULD be tried in a federal court. Vise versa.

Question 59

What are Miranda rights?

Answer 59

They are statements required to be said by the police that inform the suspect of the constitutional rights of the fifth amendment: the right to remain silent, an attorney being provided if a person can’t afford one

Question 60

What is double jeopardy?

Answer 60

It protects individuals from being tried twice for the same crime in the same jurisdiction

Question 61

What is the 6th amendment?

Answer 61

It sets the basic requirement of procedural due process for federal courts to follow in criminal trials. Speedy and public trials, impartial juries, trials in the state where the crime was committed, notice of the charges, the right to confront and obtain favorable witnesses, the right to counsel

Question 62

Analyze the evolution of the right to counsel by the 6th amendment

Answer 62

1. An attorney had to be hired 2. Congress required federal courts to provide an attorney to those who could not afford one who were on a capital trial 3. Courts expanded the right to counsel but gave the states little direction so most states did not provide one 4. The right to counsel began at the accused first appearance before a judge 5. Lawyers provided must be responsible and have a good argument defending the accused because sometimes the lawyers would fall asleep, drunk or not put fourth evidence

Question 63

Analogous: DC v. Heller

Answer 63

Background: All firearms must be kept unloaded and disassembled or trigger locked. People said that this violated their second amendment right to bear arms. The federal trial court stated that the second amendment applies only to militias, not private gun ownership Issue: Did DC laws violate the second amendment right of individuals who are not affiliated with any state regulated militia, but who wish to keep handguns and other firearms for private use? Opinion: The 2nd amendment protects an individual right to possess a firearm unconnected with militia. Everyone has a right to keep and bear arms no matter if they serve in militia

Question 64

Essential: McDonald v. Chicago

Answer 64

Background: McDonald believes that the right to bear arms is a fundamental right and Chicago is not being far about this law. These laws that Chicago had were similar to Hellers. Issue: Do the limitation on the federal governments power to prohibit the use of firearms in the home apply at the state level or locally? Opinion: The second amendment applied to the states as well for self defense. The right to bear arms is unconnected with the militia and is fundamental. Impact: The right to bear arms that is not connected with militia service. It was selectively incorporated to the states which allows states to regulate firearms. States can’t prohibit firearms based on military service.

Question 65

Analogous: Mapp v. Ohio

Answer 65

Background: Mapp was suspected of having a bomber hide in her home. Mapp refused to let the police in without a warrant so they knocked again and through force, searched her home. Obscene materials were found during this illegal search Issue: Was Mapp fourth amendment right violated because the police forcibly searched her home? Opinion: The fourth amendment applied right was violated. They selectively incorporate the exclusionary rule to her case

Question 66

ESSENTIAL: Gideon v. Wainwright

Answer 66

Background: Gideon was arrested for breaking into a pool hall. He could not afford a lawyer so he asked for one but the court denied him. He was sentenced to 5 years in prison. He filed a writ of certiorari asking for a case review. The court granted it and he got one of the best lawyers he argued the due process laws that defendants have the right to a counsel Issue: Did Florida violate the right to counsel by the 6th amendment? Opinion: Everyone is entitled to counsel and it is a selective incorporation case. He ended up getting released Impact: The right to counsel is something that has to be provided in most cases and it has to be provided because of selective incorporation.

Question 67

Analogous: Miranda v. Arizona

Answer 67

Background: Miranda was convicted of rape and kidnapping based on statements he made to the police during interrogation. The police failed to inform him that he did not have to talk and he had the right to a lawyer Issue: did Arizona violate Mirandas rights under the 5th, 6th, and 14th amendment when they interrogated him without advising him of his constitutional right to remain silent Opinion: The police were in error because they did not inform the suspect that he had the right to remain silent.

Question 68

What are the selective incorporation cases?

Answer 68

Barron v. Baltimore Gitlow v. New York Palko v. Connecticut

Question 69

What are the three main clauses present in the 14th amendment

Answer 69

Naturalization clause-citizenship for people in the US born or naturalized , due process clause-not depriving people of life, liberty or property without due process, equal protections clause-prevents discrimination everyone has equal protection

Question 70

What are civil liberties

Answer 70

Civil liberties are guarantees and freedoms that governments commit not to abridge, either by constitution, legislation, or judicial interpretation, without due process. Individuals

Question 71

Define civil rights

Answer 71

Civil rights are the rights guaranteed to all citizens, ensuring equal treatment and protection under the law, regardless of race, religion, gender, or other characteristics. Groups

Question 72

Define Due process

Answer 72

due process means the government must follow fair procedures and treat everyone equally when it takes actions that could affect their life, liberty, or property. It's about ensuring fairness and preventing arbitrary government action

Question 73

Substantive due process

Answer 73

Idea that a government protects fundamental freedom

Question 74

Fundamental freedoms

Answer 74

Fundamental freedoms are basic political liberties, like freedom of speech, religion, assembly, and association

Question 75

What’s the difference between civil liberties and civil rights

Answer 75

Civil liberties protects from government interference while civil rights is the government helping you to do stuff

Question 76

What is the definition of strict scrutiny

Answer 76

strict scrutiny" is the most rigorous level of judicial review used by US courts to assess the constitutionality of laws or government actions, particularly when they infringe on fundamental rights or discriminate based on "suspect classifications" like race.

Question 77

Explain the fighting words doctrine

Answer 77

The fighting words doctrine is a legal principle that limits the protection of certain types of speech under the First Amendment. According to this doctrine, speech is not protected if it is deemed likely to incite immediate violence or cause a breach of the peace.

Question 78

What is the difference between the selection process for a federal district judge and a Supreme Court justice

Answer 78

The nomination of a Supreme Court justice gets more public attention. With a federal district judge the president applied senatorial courtesy. He checks with a senator from that state that is in his party to see what they think. But for both the president still nominates.

Question 79

What amendment guarantee privacy?

Answer 79

1st, 3rd, 4th, 9th amendment in the bill of rights guarantees privacy

Question 80

ESSENTIAL: Schenck v. US

Answer 80

Background: Schenck was a pacifist (commy) and did not want the United states to be involved in WWI. He does not want people to be recruited to the war and handing out pamphlets. Baer were convicted of printing and circulating documents that intended to cause insubordination within the military with the Espionage Act 1917-prevents people from spying on the US and sabotaging US war efforts. Issue: Did they violate the first amendment when they were convicted of conspiring to obstruct the recruitment and enlistment of service Opinion: This law and his arrest were constitutional because during times of war the government has more power to limit your speech than in a time of peace because of national security. Schenck was attempting to harm people. He was not successful. His pamphlets did not even work but the court said that didn't matter. The fact that it could have changed peoples minds is enough to uphold the conviction. Impact: The action does not have to be successful to violate the law. During times of war your freedom of speech is limited. Speech can be limited if the speech poses a threat to others. “Clear and present danger” to others.

Question 81

Essential: roe v. Wade

Answer 81

Background: A texas woman wanted to get an abortion but it was a crime to do that, but if she had remained pregnant the mothers health would be in danger. SHe said that the law infringed on her 14th amendment right to privacy. To get an abortion you would have to go to california. They recruited a woman to file a lawsuit against texas. Does she have standing? Theres no compensation. If the state strikes down the abortion ban theres nothing to help her, they say yes. Issue: Do state laws that ban or regulate abortion violate a woman's right to privacy or personal decisions in matters of family decisions? Opinion: They decide in her favor. A womans pregnancy is divided into three periods. She can have a right to an abortion and states can infringe on this because she has a right to privacy. It is not an absolute right. First trimester: unrestricted Second Trimester: State can make restrictions if it poses a threat to women's health third: States can regulate, it is in the states interest to decide the fate. States cant adopt a theory of when life begins. Impact: a woman had the right to privacy for the next 50 years