Exam 1 Flashcards
Constitutional Law
The study of structure, system, and organization of laws and principles of the government.
Constitutional Law is very dynamic
Interaction of legal principles, morals or values, partisan interests, and historical developments.
Why is the Consitution important?
-It tells and gives us our fundamental rights and gives our governments its power
-Because major events invoke it
Ex: it has been invoked by
-Iraq war
-Abortion: Roe v Wade and Dobbs v Jackson
-Civil Rights Movement
-Pres Lincoln and Southern Succession
Background of Constitution
-American Revolutionary War (1775-1783)
-Contentinal Congress (1774-1781)
Drafted DOI June 1776 finished July 4th 1776
Articles of Confederation sent to states November 1777 and ratified March 1781
Elements of AOC
-Gave states power
-Leauge of friendships (loose alliance of states that gave fed gov minimal authority)
-Suspicious of strong central govt. - weak central gov
-brought finality to rev war
-make possible for international (treaty of Paris)
Shay’s rebellion 1787
Showed weakness of AOC
Large riot of 4,000 farmers protesting hard economic times
-Showed what was wrong with current gov
-No mechanism to stop rebellion because there was no strong national govt and no national army “must change or wont survive”
Basic function of Consitution
Set up framework of govt, designate powers and restraints, provide rights and liberties
Problems with AOC
-no army
-no way to collect taxes
-no national coin system
-no powers to enforce treaties
-no power to enforce laws
No power to raise an army
13/13 to amend
9/13 to exercise power
Constitutional Convention
Feb 1787 in Philadelphia
Goal: revise govt
Closed meetings no public
Virginia Plan: Wanted representation based on population
New Jersey: representation based on each state
Like congress and house
Article I
Congress
Much more detailed bc frames did not want strong pres or judiciary initially
Article II
President
Article III
Judiciary
Articles IV- VII
Amending Consitution, full faith, credit/debit ratifications
Amendments 1st- 10th
Bill of Rights
Sec 1 Article 3
One Supreme Court
Congress Creates Lower courts (gives judges lifetime tenure?)
Article 3 sec 2
Jursidiction:
Original: first court to view
Appellate: appeal cases - congress to regulate this can mandate courts to hear cases (ex voting rights cases)
Writ of certiorari: petition to SC to hear case
Writs of habeas corpus: petition to challenge the legality of ones imprisonment
Trial by jury (twice in Consitution, here and amen 7)
Article 3 section 3
Treason
Articles and amendments
Articles have a very majoritarian tone and amendments have individual tone. States would not ratify w/o rights.
Competing values and vauge
How many times has it been amended
27
Consitution article 3
Set up basic structure of our court system and Supreme Court
State courts and US courts - congress power to create courts
3 goals for setting up court system
- Structure federal court system
-Trial and circuit courts
-Justices 6 (now 9) - Created Jursidictions of federal court
- Appellate jurisdiction of SC
In reality we have a _ court system
Two Seperate court systems
A dual system
Supreme Court is the final decider and sits at the top. If we don’t like their decision we can:
- Congress pass a bill (if statutory decision)
- Amend Consirtution (if Consitution)
US Court Structure Chart
Draw Out
Appellate, Trial, and SC have diff functions
Trial: fact diners and collect evidence for decision
Appellate: error correctors can affirm or reverse
SC: clarify/unify law and devise legal rule
What is circuit conflict?
A legal ruling from one circuit court is in conflict with a legal ruling from another circuit
Sends a STRONG signal to Supreme Court that they needed to hear his case to clarify/unify law
Example: Brown v Davenport 2022
Issue: when a can a federal habeas court grant relief?
6th circuit court found that it can after solely conducting that the BRECHT TEST is satisfied
Circut Courts 2nd 3rd 7th 9th 10th have held the breach test must be satisfied and the state courts Champlain application was unreasonable
is SC an error corrector?
No. They are not interested in fact-bound cases. they are worried about ones that have broader policy implications.
Current SC members and appointee
Chief Justice John Roberts- Bush
Clarence Thomas- Bush
Samuel Alito-Bush
Sonya Sotomayor- Obama
Elena Kagan- Obama
Neil Gorsuch- Trump
Brett Kavanaugh- Trump
Amy Coney Barrett- Trump
Ketanji Brown Jackson- Biden
SC as an institution
-Historically not prestigious - now is
Life time tenure
Oct- June first Monday in oct
-Passive Political institution
-Almost complete dissection on what cases they decide
-Most come from writ
Appeal vs. Writ of Certiorari
Appellant vs Appellee
Petitioner vs Respondent
Agenda setting and process
Writ of certiorari/ appeal
Cert pool (law clerks 4 each except Alito and Gorsuch create memos and circulate them)
Discuss List: anyone made add one but no one may remove - they grant or deny
Cases granted with rule of 4
Merit briefs: litigants summarize arguments and dictate how they present info
Amicus curiae briefs “friend of court” may also submit brief
Briefs have rules on questions, TOC< # of copies, word limits, color, and formatting
Oral arguments: chance for litigants to argue and justices to ask questions or persuade other justices
Conference: Private - ritualistic hand shakes and then chief states views and everyone proceeds in order of seniority
Bargaining: exchange of memos, draft opinions
They place their final vote by joining opinions
Writer of opinions
Usually written by 1 justice in majority and signed by others - not an extreme member
If CJ is in majority he chooses who writes and it and if not then most senior member does
Opinions do 3 things
- Provide judgements (winner/loser) for parties; resolve current legal dispute in question
- Set legal policy
- Provide some legal rule/solution for future disputes
Miscellaneous procedures
- 9 member court, can make decisions with 8 or 7 or 6
-Need 6 for a quorum in order to conduct business and make decisions
-5 votes to rehear case
-Tied outcomes (4-4) lower decision stands
DIG- dismiss and improvidently granted
Rather than issue decision they will no longer deal with case realized they messed up and no longer want to decide
In forma pauperis
Latin for indigent of poor. Petitions coming from prisoners that do not have means to pay for appeal. Money waived
Agenda setting notes
-Case selection NOT random
-Circut conflict is single most important predictor of case being granted cert
-Policy preferences matter
Why would majority give minority power in rule of 4
Can’t ignore minority interests and they will not grant cases in their favor cert anyway in fear that it will be granted cert and they cannot get majority and it will overturn or cause unfavorable precedent for them.
Three ways a case comes to Supreme Court:
Appeals: litigants make appeal as a matter of right, certification, or certiorari. On appeal is issues Congress deals necessary - “probable jurisdiction”
Certification: lower appellate courts file cert asking justices to respond to questions aimed at clarifying law.
Petitons for writ of certiorari: send petition from lower court. Grant = will give review and denial= the lower court decision remains in force
Three considerations affecting case selection:
Legal considerations: from Article III and it places constraints on federal tribunals to hear and decide cases. Listed in rule 10- conflict: disagreement among judges having to do with federal law. It also stresses importance of resolving federal questions.
Political considerations: SG solicitor general: repeat player that only brings important cases to their attention, amicus curaie briefs, ideology of justices.
Procedural considerations:
Legalism
States that justices interpret the law and constitution by emphasizing case law, precedent, and history. Justices do not employ their own political beliefs but instead they focus soley on the law and its consitutionality. For example, orgininal meaning and intent.
Realism
The realistic theory of judging - emphasizing non-legalistic factors such as political preferences, ideology, and personal beliefs. This theory shows that justices are human beings subject to their own personal biases like everyone else. They interpert laws and the consitution based on their own values and beliefs.
Type of legalism: originalism
originalists attempt to interpret the Consitution in line with what it meant at the time of its drafting
Original intent
emphasizes the intent and Asks what the framers wanted to do. They assert that the frames acted in a calculated manner, - that is they knew what they were doing so why would we disregard that. They argue that if they scruniztie the intent of framers then justices can deduce constitutional truths which they can apply to cases. They also argue that it fosters stability in law
Original meaning:
Considers what a clause meant to (or how it was understood by) those who enacted it (or at the time of its enactment.) Looking at the words of whatever constitutional provision he was interpreting and then interpertred them in line with what they would have originally meant to the people of the time they were writte. Emphasizes the meaning a reasonable speaker of Engish would have attached to the words, phrases, sentences, etc. at the time the original provision was adopted.
Textualism
Places emphasis on what the Conistitution says. Values the constitution above all else and does not feel look further than its words.
Structural analysis
interpretates particular clauses should be consistent with or follow from overarching structures or governing principles established in the constitution
Stare decisis
Looks to what courts have written. Means “let the decision stand”. Meaning that justice should decide on the abscess of previously established rulings or precedent. Judicial tribunals should honor prior rulings. If a justice rely on past cases to resolve current cases than the law they generate becomes predictable and stable. It guides all legal actors. Legalist emphasize finding the controlling precedent (similar cases and facts to your case) and analogically analyzing it to shape your argument around it and focus on the similarities.
Ex: Roper v Simmons (execute minors)
Yes side argued Standford v Kentucky precedent
No side argued Atkins v Virgina precedent
Pragmatism
Considers the effects of various interpretations, suggesting that courts should adopt the one that avoids bad consequences. Members of court often consider the effects of a decision for different segments of society: agriculture, airlines, banks, churches, energy producers, financial institutions, physicians, railroads, retirees, and technology companies. The court is not necessialry interested in abstract doctrine alone, it wants to know how its doctrines will work when put into practice.
Ratio decidendi
establishing the principle of the case. To determine whether a previous case applies as precedent, judges say one must strip away the nonessientals of the case and expose the basic reason for the supreme courts decision.
Obiter dicta
any expression in an opinion that is unnecessary to the decision reached in the case or that relates a factual situation other than the one actually before the court. These have no legal weight and are not binding. Judges may separate the ratio decendii from dicta. The task is difficult and allows justices to skirt precedent when they do not agree.
Realism
The force that drives the justices are anything but legal in orientation and that it is unrealistic to expect justices to shed all of their preferences, values, or ignore public opinion. The justices are people and like all people tend to have strong and pervasive political biases and partisian attachments.
Strategic Approaches:
Justices may be primarily seekers of legal policy or may be motivated by jursprudential principles, but they are not unconstrained actors who make decisions based solely on their own ideological attitudes or jursispential attitudes, but they are strategic actors who realize taht their ability to achieve their goals - whatever those goals might be - depends om a consideration of the preferences of other relevant actors (such as colleagues), the choices thet expect others to make, and the institutional context in which they act.
External factors that affect judges
Public opinion
Partasian politics
Interest groups
Dilemma with writing opinions? Why do they write them instead of a winner loser?
- Lower Courts need guidance, and the opinions show them how to apply the precedent to their cases.
- Rule of law- the idea that everyone is subject to the same law and it should be predictable and stable.
- Legitimacy: They do not have the power of the sword or the purse (enforce or implement) therefore they have to craft well-reasoned arguments.
Advisory Opinions
Opinion that issued based on hypotheticals. Federal courts do NOT rule on them because they want to know how cases affect people.
Dicta
extraneous material that is unnecessary to solve the dispute. No legal weight and is not legally binding.
Judges disagree over what dicta is and what it is not
Justiciable
Cases that can be decided by courts. For example political doctrine cases are not decided by courts
When crafting a majority opinion, some might argue that getting a
majority of justices (at least 5) to agree involves compromise- but
what can that lead to
case resolution may not provide much guidance to the lower courts for future
disputes
An opinion that is watered down, may lead to more litigation in the lower
courts and create more problems down the road
Anatomy of an opinion
-Syllabus is a well written summary but it is not official and cannot be relied on.
-Case names ex: Smith v. Jones
-One Justice authors majority the rest join
-Organized into roman numeral sections based on topic
-Beginniing recites facts of case
-Rest is justices explaining their rationale/ reasoning for decision that leads to end of document and dispotion (affirm/reverse)
Majority vs plurality
Majority (5)
Plurality (4) no justice received enough votes to be majority
Can plurality opinions create precedent?
Sometimes? Maybe? Yes? If there is overlap in concurring opinions ?
Regular concurrence
When a justice agrees with the rationale and the outcome but wnats to add something
Special concurrence
When a justice agrees with the outcome but not the reason or rationale
Why do we care what the dissenters say?
- “Tomorrows Majority” what may be the minority today may be the majority tomorrow. It is the idea that the majority may be overturned and the minority opinion would become the precedent and caselaw. Therefore, justices want to highlight problems and advocate for their stance on the issue
Legitmacy
Methods of constitutional interpretation
Originalism (original intent and original meaning)
* Textualism
* Structural analysis
* Stare decisis
* Pragmatism
* Polling jurisdiction
Judicial interpretation: Logic (syllogism/syllognistic)
Justices use this because it adds apparent perception that it is ordered/logical/rational which persuades others to follow. Derived from deductive reasoning.
For example: Justice Marshall in Marbury v. Madison
Major Premise: Any law that is uncosnitutional is void
Minor premise: The judicary act of 1789 is unconsitutional because it enlarges original jurisdiction
Conclusion: The law is void
Critics: if you agree with premise you may be stuck with conclusion.
Other modes of justification
Balancing: 2 competing interests
tiktok: National Secuirty and Free speech
Cost-Benefit Analysis: Pros + Cons
Tradition
Compentary community norms
Foreign Precedent
Opinions occasionally set up tests
Tests- a criterion, or set of criteria that a policy must meet in order for
it to be constitutionally permissible
* Burden of proof
* Where is presumption?
* Appropriate test? Who determines?
* Area of law & relevant precedent
* Tests are Judicial creations and they evolve
For example, justices may test criteria for abortion that involves stage of pregnancy and circumstances
Background of decision making
Late 1800’s-1930s not much controversy judges interchangable
1930 great depression and stock market
FDR threatened to stock the court if his economic relief programs not passed
“Switch in time that saved nine” Owen Roberts switched from his conservative position and voted in favor. Showed that there is more than just legalism in decision making
After 1930s rise in legal realism
Dissents begin to increase showing that judges are not interchangeable
Dissents begin to increase
Precedent is a smoke screen disgusing personal biases
Footnote 4
US v. Carolene Products (1938)
* Relatively unimportant case dealing with economic regulation of the content of milk
* Rational basis review (minimal standard of review)
* But in footnote 4- reserved stricter standards of scrutiny for other types of cases (e.g., civil rights and
liberties) which Led to SCOTUS docket change (cases being petitioned
started to come from civil rights and liberties cases, less economic issues). The amount of dissensus increases
Bush v. Gore 2000
Example of attitudinal model of realism
Legal question: whether or not Flordia votes being counted differently violate dthe equal protection clause?
-Conservatives voted for individual rather than state, which is flip flopped than normal vote.
(Per curiam opinion: does not cite specific judges)
Showed the case was really about Bush getting the 25 electoral votes or not
Showed decisions are not pure legalism: they voted here based on Ideology, political preferences, attitudes, beliefs and values.
Plurality Opinion
A plurality is when one opinion gets the most votes but not enough to constitute a majority. For example, if four people joined one opinion, three join another, and two have another, the plurality would be four. Plurality opinions are not official opinions but they can still have influence. They may set precedent for the outcome and not the reasoning if concurring opinions overlap in some way.
Judicial Interpretation Philosophy
This interpretation is based on the idea of policy decisions vs legal decisions. Policy decisions are based on broader societal or economic implications, and they push policy in one direction. Legal decisions are based on applying the law to the facts of the case. Justices employ both of these. For example, Justice Potter Stewart probed the balance between constitutionality and societal impact within the oral arguments of Roe v. Wade.
Judicial Interpertation Stare Decisis/ Precedent
Stare decisis is latin for let the decision stand. It states that we must honor judicial tribunals and follow their precedent for the law to be stable and predictable. It is derived from analogical reasoning and involves analyzing the precedent to the current similar case. You find the similarities and argue how this applies to your case.
For example: Roper v. Simmons (Can a minor be executed)
Yes side argued Standford v Kentucky (no consensus in America)
No side argued Atkins v Virgina (consensus showed)
