Judiciary, Civil Liberties, and Civil Rights review Flashcards
What is The Federalist 78?
Federalist No. 78, also known as the “Federalist Papers,” is an essay written by Alexander Hamilton in 1788. This essay discusses the structure and duties of the judicial branch in the United States government. Hamilton argues that the Judicial Branch should be independent and have the power to interpret the laws of the nation without interference from the executive or legislative branches. This essay is often cited as an example of the classical liberal view of the judiciary.
Explain original and appellate jurisdiction.
Original jurisdiction is the authority of a court to hear and decide a case in the first instance. This means that a court with original jurisdiction has the power to hear a case for the first time, without it having been heard in another court.
Appellate jurisdiction is the authority of a court to review decisions and change the outcomes of decisions made by lower courts. An appellate court can overturn the decision of a lower court if it was made in error. The appellate court does not hear new evidence or hear witnesses but instead, considers the legal arguments presented by both parties.
What is the Judiciary Act of 1789? (3-tiered court system)
The Judiciary Act of 1789 was the first piece of legislation enacted by the first United States Congress. It established the three-tiered federal court system, consisting of the Supreme Court, the Circuit Courts, and the District Courts.
(Also set forth the scope of the federal judicial power and enumerated the jurisdiction of the federal courts.)
(Also established procedures for the appointment of federal judges and for the appointment of attorneys to represent the United States in court proceedings.)
Explain the ruling in Marbury v. Madison (a) and judicial review. (b)
(a) Marbury v. Madison was the first time the Supreme Court declared an act of Congress unconstitutional. In this case, William Marbury had been appointed by President John Adams to serve as a justice of the peace in the District of Columbia, but his commission had not been delivered before Adams left office. Marbury sued Secretary of State James Madison, claiming that he was entitled to the commission. The Supreme Court ruled that Marbury was indeed entitled to the commission, but the court also ruled that the portion of the Judiciary Act of 1789 that allowed Marbury to sue was unconstitutional.
(b) This decision established the concept of judicial review, which allows the Supreme Court to declare acts of Congress unconstitutional.
Explain the role of precedents (a) and stare decisis. (b)
Precedents and stare decisis are important components of the common law system, which is the basis of the US legal system.
(a) Precedents are court decisions in prior cases that help to determine the outcome of similar cases in the future.
(b) Stare decisis is the principle that prior decisions by a court should be followed in subsequent cases.
This principle ensures that the law is applied consistently and predictably. The decisions of higher courts, such as the Supreme Court, are considered binding precedents and must be followed in lower courts. Precedents and stare decisis help to ensure that the law is applied evenly and fairly in all cases.
Explain the process of selecting Supreme Court justices and federal judges.
The process of selecting Supreme Court justices and federal judges begin with the President making a nomination. This nomination is then sent to the Senate for consideration. The Senate Judiciary Committee then holds hearings to examine the qualifications and legal record of the nominee. They may also conduct a background check. Finally, the full Senate votes on whether to confirm the President’s nomination. A simple majority vote is required for confirmation. If the nominee is confirmed, they are appointed to serve as a Supreme Court justice or federal judge.
Explain the confirmation process of Supreme Court justices & federal judges.
The confirmation process for Supreme Court justices and federal judges begin with the president nominating a candidate for the position. Once the nominee is named, the Senate Judiciary Committee will hold a hearing to examine the candidate’s qualifications. During this hearing, senators will question the nominee about their judicial philosophy, legal qualifications, and general views on important issues. After the hearing, the committee will vote to either affirm or reject the nomination.
If the nominee is approved by the Judiciary Committee, the entire Senate will then vote on the nomination. Depending on the nature of the nomination, this may require a simple majority or a two-thirds majority of the entire Senate. Once the Senate has voted to confirm the nominee, they will then assume the office they have been nominated for.
What are the factors insulating the judiciary from public opinion?
- Separation of Powers (checks and balances)
- Judicial Review
- Appointment Process
- Life Tenure
- Judicial Ethics
(Judges are required to follow certain ethical standards, such as avoiding conflicts of interest and not hearing cases in which they have a personal interest.)
How does a case get to the Supreme Court?
A case can get to the Supreme Court in two ways
1. A party may file a petition for a writ of certiorari, sometimes referred to as a “petition for cert.”
2. A case may get to the Supreme Court if it has gone through the federal court system and has been appealed to the Supreme Court as the final court of appeal. In this case, the Supreme Court must hear the case.
How does the Supreme Court hear and decide a case?
- The Supreme Court decides which cases it will hear and decides how to proceed with the cases it does hear. The Supreme Court will hear a case if it involves a matter of federal law, a conflict between two or more states, or a controversy between the United States and a foreign government.
- In order to hear a case, the Supreme Court must first grant a writ of certiorari, which is an order that requires the lower court to send the records of the case to the Supreme Court.
- Once granted, the Supreme Court will hear the case and the justices will review the legal briefs and arguments submitted by both parties. The Court may issue a written opinion or an order, or it may issue a per curiam opinion, which is a brief unsigned opinion of the Court.
Explain the implementation of court decisions.
The Court relies on the executive branch to implement or enforce its decisions and on the legislative branch to fund them. As the Jackson and Lincoln stories indicate, presidents may simply ignore decisions of the Court, and Congress may withhold funding needed for implementation and enforcement.
What are the Free Exercise and Establishment clauses?
The Free Exercise Clause is the first clause in the First Amendment to the United States Constitution, which states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
(Guarantees the right of individuals to practice any religion they choose, or to practice no religion at all, without fear of government interference.)
The Establishment Clause is the second clause of the First Amendment, which states that “Congress shall make no law respecting an establishment of religion.”
(prohibits the government from establishing an official religion or favoring one religion over another.)
(prevents the government from making laws or policies that unduly burden religious practices or activities.)
What is Freedom of Speech and The Press?
Freedom of speech and the press are the constitutional rights to express one’s opinion without fear of government censorship or punishment.
What is (a)Prior restraint and (b)Symbolic speech?
(a)Prior restraint is a government action that prohibits speech or other expressions before the speech happens.
(b)Nonverbal, unwritten forms of communication, such as flag burning, wearing armbands, and burning of draft cards.
What are forms of unprotected speech?
Obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law, true threats, etc.
