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|Judicial Branch Socratic Seminar Readings|
Judicial Restraint: is a legal term that describes a type of judicial interpretation that emphasizes the limited nature of the court's power. Judicial restraint asks judges to base their judicial decisions solely on the concept of precedent and original intent of the framers
Judicial Activism: The view that the Supreme Court justices (and even other lower-ranking judges as well) can and should creatively (re)interpret the U.S. constitution holding that the spirit of the times and the needs of the nation can legitimately influence judicial decisions (particularly decisions of the Supreme Court) and the laws in order to serve the judges' views on the needs of contemporary society. On such a view, judges should not hesitate to go beyond their traditional role as interpreters of the Constitution and laws given to them by others in order to assume a role as independent policy makers or independent "trustees" on behalf of society.
The Most Activist Supreme Court in History:
The Road to Modern Judicial Conservatism
By Thomas M. Keck
When conservatives took control of the federal judiciary in the 1980s, it was widely assumed that they would reverse the landmark rights-protecting precedents set by the Warren Court and replace them with a broad commitment to judicial restraint. Instead, the Supreme Court under Chief Justice William Rehnquist has reaffirmed most of those liberal decisions while also creating its own brand of conservative judicial activism.
Ranging from 1937 to 2004, The Most Activist Supreme Court in History traces the legal and political forces that have shaped the modern Court. Thomas Keck argues that the tensions within modern conservatism have produced a Court that exercises its own power quite actively, on behalf of both liberal and conservative ends. Despite the long-standing conservative commitment to restraint, the justices of the Rehnquist Court have stepped in to settle divisive political conflicts over abortion, affirmative action, gay rights—even a presidential election. Keck focuses in particular on the role of Justices O’Connor and Kennedy, whose deciding votes have shaped this uncharacteristically activist Court. No other book has delved as deeply into the jurisprudential and ideological priorities of the Rehnquist Court.
Below is an interview with Keck:
Question: Why do you call the current Supreme Court “activist”?
Thomas M. Keck: There are several reasons why I reach that conclusion. Perhaps the most striking reason is that the [post-1994] Rehnquist Court has struck down federal statutes as unconstitutional more frequently than at any previous point in the Court’s history. The Court has struck down 33 federal statutes since 1995, which is a literally unprecedented rate
Question: Can you give us some examples of particular topics that they’ve been activist on?
Keck: Of the liberal activism, the most noted example is the continued reaffirmation of Roe v. Wade. Another great example is the area of gay rights, where it’s been the Rehnquist Court that has for the first time extended constitutional protections to gay and lesbian rights—in 1996, with Romer v. Evans, and then again in 2003, with Lawrence v. Texas. And there are a lot of examples in the areas of free speech, freedom of religion, and other rights in the liberal, Warren Court tradition.
On the conservative activism side of the fence, perhaps the best set of examples are the cases regarding federalism, a whole bunch of separate sets of cases whose overarching theme is the revival of constitutional limits on federal government power. It’s not like these decisions have gone that far; they haven’t tried to strike down the New Deal. But the implications of them are potentially sweeping, were they to carry them as far as the rhetoric suggests.
Examples of Supreme Court Decisions from 2009
McDonald v. Chicago – Gun Rights
The Supreme Court held that the Constitution's Second Amendment restrains government's ability to significantly limit "the right to keep and bear arms," advancing a recent trend by the John Roberts-led bench to embrace gun rights. By a narrow, 5-4 vote, the justices also signaled, however, that some limitations on the right could survive legal challenges. Writing for the court in a case involving restrictive laws in Chicago and one of its suburbs, Justice Samuel Alito said that the Second Amendment right "applies equally to the federal government and the states." The court was split along familiar ideological lines, with five conservative-moderate justices in favor of gun rights and four liberals opposed. Chief Justice Roberts voted with the majority.
Citizens United v. FEC – Campaign Finance
The Supreme Court ruled that corporations may spend freely to support or oppose candidates for president and Congress, easing decades-old limits on their participation in federal campaigns. By a 5-4 vote, the court overturned a 20-year-old ruling that said corporations can be prohibited from using money from their general treasuries to pay for their own campaign ads. The decision, which almost certainly will also allow labor unions to participate more freely in campaigns, threatens similar limits imposed by 24 states. It leaves in place a prohibition on direct contributions to candidates from corporations and unions.
Graham v. Florida - Imprisonment without Parole for Juveniles
The Supreme Court ruled that teenagers may not be locked up for life without chance of parole if they haven't killed anyone. By a 5-4 vote, the court said the Constitution requires that young people serving life sentences must at least be considered for release. The court ruled in the case of Terrance Graham, who was implicated in armed robberies when he was 16 and 17. Graham, now 22, is in prison in Florida, which holds more than 70 percent of juvenile defendants locked up for life for crimes other than homicide.
Berghuis v. Thompkins – Miranda Rights
The Supreme Court ruled that suspects must explicitly tell police they want to be silent to invoke Miranda protections during criminal interrogations; a decision one dissenting justice said turns defendants' rights "upside down." A right to remain silent and a right to a lawyer are the first of the Miranda rights warnings, which police recite to suspects during arrests and interrogations. But the justices said in a 5-4 decision that suspects must tell police they are going to remain silent to stop an interrogation, just as they must tell police that they want a lawyer.
Maryland v. Shatzer – Miranda time limits
The Supreme Court ruled that a request for a lawyer from someone under police interrogation is valid only for 14 days, reinstating the confession of a child molester who asked for a lawyer nearly three years before he confessed. The decision marks the first time the court has set such a time limit; it will make it easier for police to question suspects without worrying that an old request for a lawyer will doom their case. The right to an attorney has existed since 1966, when the Supreme Court said in its famous Miranda decision that people are entitled to have attorneys present during police questioning, and that interrogation must end if someone requests an attorney. And police cannot coerce a person into waiving his rights to a lawyer by keeping him in custody, the court said in 1981.
U.S. v. Stevens – Animal Cruelty Videos
The Supreme Court struck down a federal law aimed at banning videos that show graphic violence against animals, saying the law violates the right to free speech. The government sought a ruling that treated videos showing animal cruelty like child pornography, not entitled to constitutional protection. Animal rights groups, including the Humane Society of the United States and the American Society for the Prevention of Cruelty to Animals, and 26 states joined the Obama administration in support of the 1999 law.
Salazar v. Bueno – Separation of Church and State
The Supreme Court ruled that a lower court went too far in ordering the removal of a congressionally endorsed war memorial cross from its longtime home atop a remote outcropping in California. Signaling support for keeping the cross, the justices ordered the federal court in California to look again at Congress' plan to transfer a patch of federal land beneath it into private hands. The lower court had barred the land transfer as insufficient to eliminate concern about a religious symbol on public land -- in this case, the Mojave National Preserve. The ruling was 5-4, with the court's conservatives in the majority.
Holder v. Humanitarian Law Project – Terrorism
The Supreme Court upheld a federal law that bars ''material support'' to foreign terrorist organizations, rejecting a free speech challenge from humanitarian aid groups. The court ruled 6-3 that the government may prohibit all forms of aid to designated terrorist groups, even if the support consists of training and advice about entirely peaceful and legal activities. Material support intended even for benign purposes can help a terrorist group in other ways, Chief Justice John Roberts said in his majority opinion. ''Such support frees up other resources within the organization that may be put to violent ends,'' Roberts said.
Stop the Beach Renourishment v. Florida Department of Environmental Protection – Property Rights
The Supreme Court ruled that Florida can undertake beach-widening projects without paying beachfront property owners who lose exclusive access to the water. The court, by an 8-0 vote, rejected a challenge by six homeowners in Florida's Panhandle who argued that a beach-widening project changed their oceanfront property into oceanview
American Needle v. NFL – Anti-Trust
The Supreme Court turned away the National Football League's request for broad antitrust law protection, ruling that the league can be considered 32 separate teams-- not one big business -- when it comes to selling branded items like jerseys and caps. The high court unanimously reversed a lower court ruling throwing out an antitrust suit brought against the league by one of its former hat makers, who was upset that it lost its contract for making official NFL hats to Reebok.
American Needle, Inc. sued, claiming the league violated antitrust law because all 32 teams worked together to freeze it out of the NFL-licensed hatmaking business. The National Basketball Association, the National Hockey League, the NCAA, NASCAR, professional tennis and Major League Soccer supported the NFL in this case, hoping the high court would expand broad antitrust exemption to other sports. The Supreme Court turned away the league's theory that its 32 teams operate as one business, and sent American Needle's antitrust lawsuit back to the lower court. "Decisions by NFL teams to license their separately owned trademarks collectively and to only one vendor are decisions that 'deprive the marketplace of independent centers of decisionmaking ... and therefore of actual or potential competition,'" said the retiring Justice John Paul Stevens,
Jones v. Harris and Associates – Mutual Fund Fees
The Supreme Court ordered a lower court to reconsider a lawsuit that asks the courts to rein in what some investors are calling "excessive" fees on mutual funds, a popular investment vehicle for millions of Americans.
U.S. v. Comstock – Sex Offender Laws
The Supreme Court ruled that federal officials can indefinitely hold inmates considered "sexually dangerous" after their prison terms are complete. The high court in a 7-2 judgment reversed a lower court decision that said Congress overstepped its authority in allowing indefinite detentions of considered "sexually dangerous. "
"The statute is a ‘necessary and proper’ means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others, " said Justice Stephen Breyer, writing the majority opinion.
Abbott v. Abbott – Child Custody Laws
The Supreme Court ruled that a Texas mother illegally moved her son from Chile to the United States during a custody dispute with the boy's British father in the first test of the boundaries of an international child custody treaty. The high court ruled that the Hague Convention on child abduction -- aimed at preventing a parent from taking children to other countries without the other parent's permission -- demands that the child goes back to the South American country.
Holland v. Florida
The Supreme Court said lower courts should look again at an appeal from a death row inmate whose lawyer missed the deadline for asking federal courts to stop his execution. The high court overturned an appeals court decision saying Albert Holland of Florida had missed his chance to get a federal review of his death sentence because his lawyer did not file his paperwork on time. The 11th U.S. Circuit Court of Appeals in Atlanta said the only way the deadline could be extended is if a defendant can prove that his lawyer showed "bad faith, dishonesty, divided loyalty, mental impairment, or so forth" instead of just being "grossly negligent."
Judicial Branch & Supreme Court (Shmoop)
In a Nutshell
The framers of the Constitution drafted Article III in order to establish a federal judiciary—a branch of government that would serve not only as a device to check the power of the executive and the legislature, but also as a national institution that could settle disputes among states and unify the country under a central judicial body.
When you think of the government, what first comes to mind? If you're like most folks, you're probably picturing either the president, leading the free world from the Oval Office, or the dozens of powerful legislators holding the floor in Congress. Chances are, the judicial branch is but a mere afterthought, if you've thought of it at all.
But don't feel too bad about forgetting about the judicial branch; you're actually following in the hallowed footsteps of the Founding Fathers themselves. The Articles of Confederation, which organized America's first national government just after the Revolutionary War, made no mention of any kind of a federal court system or judicial power. And when the young nation's leaders got together in 1787 to overhaul the Articles of Confederation (which weren't working out too well), they created a new Constitution that, once again, treated the judiciary as a bit of an afterthought. (Yes, the Constitution's Framers created the judicial branch and made it one of three equal branches of government—but they also deliberately listed the judiciary as the third of the three branches and gave the judiciary only a tiny fraction of the attention they devoted to creating the legislative and executive branches.) The right of judicial review, arguably the branch's most important power and most important check on the other two branches of government, isn't actually mentioned in the Constitution at all; it had to be "created" in an 1803 Supreme Court decision.
So, then, we have a long tradition of treating the judicial branch like a side of sauce on a dinner plate: a bit superfluous and easily forgettable compared to the legislative/executive main course. But, really, this governmental meal is a slow-cooked stew; when we take a closer look, we find that the federal judiciary is far tastier—more substantial, complex, and intriguing—than we ever imagined.
Landmark Supreme Court Cases (Besides those having to do with teens and school)
Mapp v. Ohio (1961)
Suspicious that Dollree Mapp might be hiding a person suspected in a bombing, the police went to her home in Cleveland, Ohio. They knocked on her door and demanded entrance, but Mapp refused to let them in because they did not have a warrant. After observing her house for several hours, the police forced their way into Mapp's house, holding up a piece of paper when Mapp demanded to see their search warrant. As a result of their search, the police found a trunk containing pornographic materials. They arrested Mapp and charged her with violating an Ohio law against the possession of obscene materials. At the trial the police officers did not show Mapp and her attorney the alleged search warrant or explain why they refused to do so. Nevertheless, the court found Mapp guilty and sentenced her to jail. After losing an appeal to the Ohio Supreme Court, Mapp took her case to the U.S. Supreme Court. The Court determined that evidence obtained through a search that violates the Fourth Amendment is inadmissible in state courts
Miranda v. Arizona (1966)
Ernesto Miranda was arrested after a crime victim identified him, but police officers questioning him did not inform him of his Fifth Amendment right against self-incrimination, or of his Sixth Amendment right to the assistance of an attorney. While he confessed to the crime, his attorney later argued that his confession should have been excluded from trial. The Supreme Court agreed, deciding that the police had not taken proper steps to inform Miranda of his rights.
Gideon V. Wainwright (1963)
In June 1961, a burglary occurred at the Bay Harbor Pool Room in Panama City, FL. Police arrested Clarence Earl Gideon after he was found nearby with a pint of wine and some change in his pockets. Gideon, who could not afford a lawyer, asked a Florida Circuit Court judge to appoint one for him arguing that the Sixth Amendment entitles everyone to a lawyer. The judge denied his request and Gideon was left to represent himself. He did a poor job of defending himself and was found guilty of breaking and entering and petty larceny. While serving his sentence in a Florida state prison, Gideon began studying law, which reaffirmed his belief his rights were violated when the Florida Circuit Court refused his request for counsel. From his prison cell, he handwrote a petition asking the U.S. Supreme Court to hear his case and it agreed. The Court unanimously ruled in Gideon’s favor, stating that the Six Amendment requires state courts to provide attorneys for criminal defendants who cannot otherwise afford counsel.
Roe v. Wade (1973)
Jane Roe was an unmarried and pregnant Texas resident in 1970. Texas law made it a felony to abort a fetus unless “on medical advice for the purpose of saving the life of the mother.” Roe filed suit against Wade, the district attorney of Dallas County, contesting the statue on the grounds that it violated the guarantee of personal liberty and the right to privacy implicitly guaranteed in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. In deciding for Roe, the Supreme Court invalidated any state laws that prohibited first trimester abortions.
United States v. Nixon (1974)
A congressional hearing about President Nixon’s Watergate break-in scandal revealed that he had installed a tape-recording device in the Oval Office. The special prosecutor in charge of the case wanted access to these taped discussions to help prove that President Nixon and his aides had abused their power and broken the law. President Nixon’s incomplete compliance with the special prosecutor's demands was challenged and eventually taken to the Supreme Court of the United States. The Court decided that executive privilege is not limitless, and the tapes were released.
Korematsu v. United States (1944)
After Pearl Harbor was bombed in December 1941, the military feared a Japanese attack on the U.S. mainland and the American government was worried that Americans of Japanese descent might aid the enemy. In 1942, President Franklin D. Roosevelt signed an executive order forcing many West Coast Japanese and Japanese Americans into internment camps. Fred Korematsu, a Japanese American, relocated and claimed to be Mexican-American to avoid being interned, but was later arrested and convicted of violating an executive order.
Korematsu challenged his conviction in the courts saying that Congress, the President, and the military authorities did not have the power to issue the relocation orders and that he was being discriminated against based on his race. The government argued that the evacuation was necessary to protect the country and the federal appeals court agreed. Korematsu appealed this decision and the case came before the U.S. Supreme Court. The Court agreed with government and stated that the need to protect the country was a greater priority than the individual rights of the Japanese and Japanese Americans.
Texas v. Johnson (1989)
In a political demonstration during the Republican National Convention in Texas, protesting the policies of the Reagan Administration and of certain corporations based in Dallas, Gregory Lee Johnson doused an American flag with kerosene and set it on fire. No one was hurt or threatened with injury, but some witnesses said they were seriously offended, and Johnson was charged and convicted with the desecration of a venerated object, in violation of the Texas Penal Code. In a split decision, the Supreme Court determined that Johnson’s actions were symbolic speech protected by his First Amendment Rights.
Unit 4 – Judicial Branch
Socratic Seminar Prompts
Directions: Please review the following prompts. Use the readings given in class as well as your prior knowledge and the textbook to formulate an opinion on the questions. You need to bring in a sheet with notes/potential answers to show your preparation for this assignment.
Be able to use clear examples to back up your point and show analysis by making connections to outside information
Your questions will be selected at the beginning of the seminar so please prepare to answer all of them.