Midterm

Question 1

Writ of Certiorari

Answer 1

A request that the Supreme Court order a lower court to send up the record of the case for review.

Question 2

Rule of Four

Answer 2

cert is granted if 4 justices vote ‘yes’ to hear the case

Question 3

Amicus Curiae brief

Answer 3

both in favor or opposed to granting cert. Less than 10% of writs are accompanied by amicus brief
-Letters that come to support or deny the case
-How important is it to the public and how much do they care
-“friend of the court:” a person or organization who/which is not party to the proceedings) can set out legal arguments and recommendations in a given case.

Question 4

Process for deciding a case

Answer 4

-The Conference
Talk about how the hearing went and what they think
-Opinion Assignment
Who is going to write that decision
Depending on the circumstance it varies who is going to take it (if they all agree)
If the chief justice is in the majority they get to pick who writes it
If the chief justice is in the minority, then someone who has seniority in the majority group gets to act as CJ to pick who writes it
-Opinion Circulation
Majority opinion
Concurring opinions
They agree with the final decision but for different reasons than the majority opinion
Dissenting opinions
Do not agree the ruling and the majority opinion or concurring opinions
-Final vote
-Announcement of Decision & Vote

Question 5

original intent

Answer 5

What did the Framers want to do? Words in the Constitution were intentional, Framers knew what they were doing
-Dead Constitution

Question 6

literalism/textualism

Answer 6

base opinions on exactly what the Constitution does (or does not) say - the words themselves
-“No law” means NO law

Question 7

original meaning

Answer 7

How was this word/phrase understood at the time it was enacted?
There are ‘constitutional truths’ that we can find and follow. This would make interpretation value-neutral (that is the goal)

Question 8

structural analysis

Answer 8

What really matters is the overarching structure or principles establish in the Constitution
-Democratic Principles
-Separation of Powers/Checks & Balances
-Federalism

Question 9

stare decisis

Answer 9

“Let the Decision Stand”
-Justices should decide case on the basis of previously-established rulings, or precedent

Question 10

balancing/pragmatism

Answer 10

Appraising alternative rulings by forecasting the consequences
-Among multiple plausible interpretations, pick the one with the best consequences
-Cost- benefit analysis, ‘weighing’ the side
-But what values help to influence our determination of what is a ‘better’ or ‘worse’ consequence
What is the right of the individual vs the interest of the state
What is influencing people

Question 11

Judicial review

Answer 11

power of the Supreme Court is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution,

Question 12

Original Jurisdiction

Answer 12

original jurisdiction applies to cases involving: disputes between states, actions involving various public officials, disputes between the United States and a state, and proceedings by a state against the citizens or aliens of another state.

Question 13

Appellate Jurisdiction

Answer 13

the Court has the authority to review the decisions of lower courts.

Question 14

Justiciability

Answer 14

It is appropriate or suitable for a federal tribunal to hear or to solve. There are five different types:
-advisory opinions - when do requested to judges advise their views on the constitutionality of a proposed policy
they don’t do it because “hypothetical questions present no real controversy”
-collusion
they decide cases in which litigants 1) want the same outcome 2) evince no real adversity between them 3) are merely testing the law
has to do with beef between two people
-mootness
the court will not decide cases in which the controversy is no longer live by the time the case reaches its doorstep
-ripeness
under existing Court interpretation a case is non justiciable if the controversy is premature - has insufficiently gelled- for review
the court is a last resort - explore other options first
-political questions
The court recognizes that there is a class of questions the court will not address because they are better solved by other branches of government even though they may be constitutional in nature. p. 81

Question 15

Standing to Sue

Answer 15

A party must have a standing to qualify as an appropriate litigant
requires 1) that they party must have suffered a concrete injury or be in imminent danger of suffering such a loss 2) that the injury must be “fairly traceable” to the challenged action of the defendant (usually the government in the constitutional cases) 3) that the party must show that a favorable court decision is likely to provide redress

Question 16

Enumerated Powers

Answer 16

Enumerated powers are the powers granted to the Federal government, and specifically Congress. (from the Constitution)

Question 17

Necessary and Proper Clause

Answer 17

Article I, Section 8, “congress has the power to make all laws which shall be necessary and proper for carrying into Execution the foregoing powers.” Also called the elastic clause and the sweeping clause. It is important because it helps establish the powers of Congress

Question 18

Presentment Clause

Answer 18

Under the Presentment Clause, a bill that passes both Houses must be presented to the president before it becomes law. The president may either sign it if he approves or return (veto) it if he does not. It gives him no authority to amend or repeal.

Question 19

Separation of Powers

Answer 19

the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power and provide for checks and balances.
-what are examples of case that fit this

Question 20

Implied Powers doctrine

Answer 20

“Congress could exercise powers beyond those listed in the Constitution, those that were “necessary and proper” for implementing legislative activity” It is important because it determined that Congress had not only the powers expressly conferred upon it by the Constitution but also all authority “appropriate” to carry out such powers.

Question 21

Inherent Powers

Answer 21

“Result from the whole mass of powers of the national Government, and from the nature of political society, [not as] a consequence or incident of the powers specifically enumerated.” “Which is an inherent power of sovereign nations, one that is derived not from their charters but from their status.
- those powers over and beyond those explicitly spelled out in the Constitution or which can reasonably be implied from express grants.

Question 22

Take Care Clause

Answer 22

“take care the laws be faithfully executed.”
-grants the president the discretion not to enforce the law, yet seemingly limits his authority to suspend law.

Question 23

Executive Privilege

Answer 23

the power of the President and other officials in the executive branch to withhold certain forms of confidential communication from the courts and the legislative branch.

Question 24

Executive Immunity

Answer 24

that the President enjoys absolute immunity from civil litigation for official acts undertaken while he or she is President.
-The Court suggested that this immunity was broad (though not limitless), applying to acts within the “outer perimeter” of the President’s official duties.

Question 25

Due Process Clause

Answer 25

prohibits the government from taking any action that would deprive a person of “life, liberty, or property without due process of law.”
-found in the Fifth and Fourteenth Amendments

Question 26

Substantive Due Process

Answer 26

asks the question of whether the government’s deprivation of a person’s life, liberty or property is justified by a sufficient purpose.

Question 27

Rational Basis Test

Answer 27

test prohibits the government from imposing restrictions on liberty that are irrational or arbitrary, or drawing distinctions between persons in a manner that serves no constitutionally legitimate end.

Question 28

Compelling State Interest Test

Answer 28

an element of the strict scrutiny test by which courts exercise judicial review of legislative and executive branch enactments that affect constitutional rights

Question 29

Articles I

Answer 29

Article One of the United States Constitution establishes the legislative branch of the federal government, the United States Congress. Under Article One, Congress is a bicameral legislature consisting of the House of Representatives and the Senate.

Question 30

Article II

Answer 30

Article Two vests the power of the executive branch in the office of the president of the United States, lays out the procedures for electing and removing the president, and establishes the president’s powers and responsibilities.

Question 31

Article III

Answer 31

Article Three of the United States Constitution establishes the judicial branch of the U.S. federal government. Under Article Three, the judicial branch consists of the Supreme Court of the United States, as well as lower courts created by Congress. Wikipedia

Question 32

Nix v. Hedden

Answer 32

Issue: Is a tomato a fruit or vegetable under the tariff of 1883?
Ruling: A tomato is a vegetable
Reasons: They affirm the lower court ruling by saying that botanically it is a fruit, but socially it is a vegetable. They use the history of people saying a tomato is a vegetable. The argument that you use fruits for a desert but not a vegetable is “common language of the people.”

Question 33

Buck v. Bell

Answer 33

Issue: Does the Act of 1924, or Statue, deny Buck the right to due process of law and the equal protection of the law which is protected by the Fourteenth amendment.
Ruling: They answered it by ruling that the statute is not violating due process of law and the equal protection of the laws
Reasons: The Court found that the statute did not violate the Constitution. Justice Holmes made clear that Buck’s challenge was not upon the medical procedure involved but on the process of the substantive law. Since sterilization could not occur until a proper hearing had occurred (at which the patient and a guardian could be present) and after the Circuit Court of the County and the Supreme Court of Appeals had reviewed the case, if so requested by the patient. Only after “months of observation” could the operation take place. That was enough to satisfy the Court that there was no Constitutional violation. Citing the best interests of the state, Justice Holmes affirmed the value of a law like Virginia’s in order to prevent the nation from “being swamped with incompetence . . . Three generations of imbeciles are enough.”

Question 34

Reynolds v. U.S.

Answer 34

Issue: Is religious duty or belief a defense to a criminal charge? Is the religious practice of bigamy a defense for a criminal charge
Ruling: The Court upheld Reynolds’s conviction and Congress’s power to prohibit polygamy.
Reasoning: The Court held that while Congress could not outlaw a belief in the correctness of polygamy, it could outlaw the practice thereof. The majority reasoned that while marriage is a “sacred obligation,” it is nevertheless “usually regulated by law” in “most civilized nations.” Finally, the Court held that people cannot avoid a law due to their religion.

Question 35

Marbury v. Madison

Answer 35

Issue: 1. Does the applicant have a right to the commission he demands?
2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?
3. If they do afford him a remedy, is it a mandamus issuing from this court
Ruling: The Court found that Madison’s refusal to deliver the commission was illegal, but did not order Madison to hand over Marbury’s commission via writ of mandamus.
Reasoning: Instead, the Court held that the provision of the Judiciary Act of 1789 enabling Marbury to bring his claim to the Supreme Court was itself unconstitutional, since it purported to extend the Court’s original jurisdiction beyond that which Article III, Section 2, established.

Marshall expanded that a writ of mandamus was the proper way to seek a remedy, but concluded the Court could not issue it. Marshall reasoned that the Judiciary Act of 1789 conflicted with the Constitution. Congress did not have power to modify the Constitution through regular legislation because Supremacy Clause places the Constitution before the laws.

In so holding, Marshall established the principle of judicial review, i.e., the power to declare a law unconstitutional.

Question 36

Ex Parte McCardle

Answer 36

Issue: Can congress use its power under the exceptions clause to remove the Court’s appellate jurisdiction over a particular category of cases?
Ruling: The Court validated congressional withdrawal of the Court’s jurisdiction.
Reasoning: he basis for this repeal was the Exceptions Clause of Article III Section 2. But Chase pointedly reminded his readers that the 1868 statute repealing jurisdiction “does not affect the jurisdiction which was previously exercised.”

Question 37

U.S. Term Limits v. Thornton

Answer 37

Issue: Did Amendment 73 of the Arkansas constitution that sets term limits for candidates to appear on a ballot violate the rights of Ray Thornton under the qualifications clause laid out in Article I of the Constitution?
Ruling: yes.
Reasoning: The Constitution prohibits States from adopting Congressional qualifications in addition to those enumerated in the Constitution. A state congressional term limits amendment is unconstitutional if it has the likely effect of handicapping a class of candidates and “has the sole purpose of creating additional qualifications indirectly.” Furthermore, “…allowing individual States to craft their own congressional qualifications would erode the structure designed by the Framers to form a ‘more perfect Union.’”

Question 38

McCulloch v. Maryland

Answer 38

Issue: Does Congress using their power to create a bank violate the rights of James Mcculloch under section 8 in Article 1, that lays out their enumerated powers.
Did the state exceed its power by seeking to tax a federal entity?
Ruling: He Court held that Congress had the power to incorporate the bank and that Maryland could not tax instruments of the national government employed in the execution of constitutional powers.
Reasoning: Pursuant to the Necessary and Proper Clause (Art. I, Section 8), Chief Justice Marshall noted that Congress possessed powers not explicitly outlined in the U.S. Constitution. Marshall redefined “necessary” to mean “appropriate and legitimate,” covering all methods for furthering objectives covered by the enumerated powers. Marshall also held that while the states retained the power of taxation, the Constitution and the laws made in pursuance thereof are supreme and cannot be controlled by the states.

Question 39

United States v. Curtiss-Wright Export Corp

Answer 39

Issue: Did the Joint Resolution unconstitutionally delegate legislative power to the President?
Ruling: No, the Joint Resolution was not unconstitutional and broadened the president’s power when dealing with forgein affairs.
Reasoning: In an opinion written by Justice Sutherland, the majority upheld the Joint Resolution. The Court reasoned that the federal government could not exceed its enumerated powers regarding internal issues but had a much broader scope of discretion in foreign affairs. Because “the President alone has the power to speak or listen as a representative of the nation,” Congress may provide the President with a special degree of discretion in external matters which would not be afforded domestically. Roosevelt thus had the discretion to determine what impact a certain policy might have on foreign affairs and make decisions accordingly, even had Congress not authorized him.

Justice McReynolds authored a dissenting opinion.

Question 40

Mistretta v. United States

Answer 40

Issue: Does the United States Sentencing Commision under the Sentencing Reform Act of 1984, created by Congress violate the non-delegation act under the Constitution?
Ruling: No, the act does not violate the non-delegation act under the Constitution.
Reasoning: The Court found the Act to be valid because although Congress cannot generally delegate its legislative power to another Branch, the nondelegation doctrine does not prevent Congress from obtaining assistance from coordinate Branches. The test of validity is that an “intelligible principle” must be established by the legislature where the agency of the delegated authority must adhere to specific directives that govern its authority. The delegation to the Commission was sufficiently detailed and specific to meet these requirements. The Commission was given substantial authority and discretion in setting the guidelines; however, Congress established a classification hierarchy for federal crimes that the Commission was to use as an outline for its work.

Question 41

McCulloch v. Maryland

Answer 41

Issue: Does Congress using their power to create a bank violate the rights of James Mcculloch under section 8 in Article 1, that lays out their enumerated powers.
Did the state exceed its power by seeking to tax a federal entity?
Ruling: Yes Congress, does have the power to incorporate a bank.
Reasoning: In a unanimous decision, the Court held that Congress had the power to incorporate the bank and that Maryland could not tax instruments of the national government employed in the execution of constitutional powers.
Pursuant to the Necessary and Proper Clause (Art. I, Section 8), Chief Justice Marshall noted that Congress possessed powers not explicitly outlined in the U.S. Constitution. Marshall redefined “necessary” to mean “appropriate and legitimate,” covering all methods for furthering objectives covered by the enumerated powers. Marshall also held that while the states retained the power of taxation, the Constitution and the laws made in pursuance thereof are supreme and cannot be controlled by the states.

Question 42

Immigration and Naturalization Service v. Chadha

Answer 42

Issue: Did the Immigration Nationality act, which allowed for a legislative veto, violate the rights of Jagdish Chadha under the separation of powers doctrine?
Ruling: Yes, it is unconstitutional.
Reasoning:The Court held that the particular section of the Act in question did violate the Constitution. Recounting the debates of the Constitutional Convention over issues of bicameralism and separation of powers, Chief Justice Burger concluded that even though the Act would have enhanced governmental efficiency, it violated the “explicit constitutional standards” regarding lawmaking and congressional authority.

Question 43

Clinton v. City of New York

Answer 43

Issue: Did the Line Item Veto “Act” used by the President violate the rights of petitioners, under the Presentment Clause of Article I?
Ruling: Yes, the Line Item Veto “Act” is unconstitutional.
Reasoning: the Court first established that both the City of New York, and its affiliates, and the farmers’ cooperative suffered sufficiently immediate and concrete injuries to sustain their standing to challenge the President’s actions. The Court then explained that under the Presentment Clause, legislation that passes both Houses of Congress must either be entirely approved (i.e. signed) or rejected (i.e. vetoed) by the President. The Court held that by canceling only selected portions of the bills at issue, under authority granted him by the Act, the President in effect “amended” the laws before him. Such discretion, the Court concluded, violated the “finely wrought” legislative procedures of Article I as envisioned by the Framers.

Question 44

United States v. Nixon

Answer 44

Issue: Does Nixon have the right to executive privilege under the separation of powers doctrine protecting him from judicial review?
Ruling: No, he does not.
Reasoning:
No. The Court held that neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified, presidential privilege. The Court granted that there was a limited executive privilege in areas of military or diplomatic affairs, but gave preference to “the fundamental demands of due process of law in the fair administration of justice.” Therefore, the president must obey the subpoena and produce the tapes and documents. Nixon resigned shortly after the release of the tapes.

Question 45

Clinton v. Jones

Answer 45

Issue: Does the President have absolute immunity from civil litigation, before taking office?
Ruling: No, the president does not have absolute immunity.
Reasoning: In a unanimous opinion, the Court held that the Constitution does not grant a sitting President immunity from civil litigation except under highly unusual circumstances. After noting the great respect and dignity owed to the Executive office, the Court held that neither separation of powers nor the need for confidentiality of high-level information can justify an unqualified Presidential immunity from judicial process. While the independence of our government’s branches must be protected under the doctrine of separation of powers, the Constitution does not prohibit these branches from exercising any control over one another. This, the Court added, is true despite the procedural burdens which Article III jurisdiction may impose on the time, attention, and resources of the Chief Executive.

Question 46

Korematsu v. United States

Answer 46

Issue: Do the evacuation order 9066 from the President and Congress, that restrict the rights of Japanese Americans, violate the war powers listed in the Article II section 2?
Holding: No it does not.
Reasoning: In an opinion written by Justice Black, the Court ruled that the evacuation order violated by Korematsu was valid. The majority found that the Executive Order did not show racial prejudice but rather responded to the strategic imperative of keeping the U.S. and particularly the West Coast (the region nearest Japan) secure from invasion. The Court relied heavily on a 1943 decision, Hirabayashi v. U.S., which addressed similar issues. Black argued that the validation of the military’s decision by Congress merited even more deference.

Justice Frankfurter concurred, writing that the “martial necessity arising from the danger of espionage and sabotage” warranted the military’s evacuation order.

Justice Jackson dissented, arguing that the exclusion order legitimized racism that violated the Equal Protection Clause of the Fourteenth Amendment.

Question 47

Youngstown Sheet & Tube Co. v. Sawyer

Answer 47

Issue: Did the president have the constitutional power to issue an executive order directing the Secretary of Commerce to take possession and operate the steel mills?
Ruling: No, he does not have the power to do that.
Reasoning: the Court held that the President did not have the authority to issue such an order. The Court found that there was no congressional statute that authorized the President to take possession of private property. The Court also held that the President’s military power as Commander in Chief of the Armed Forces did not extend to labor disputes. The Court argued that “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”

Question 48

Hamdi v. Rumsfeld

Answer 48

Issue: Does Authorization for Use of Military Force resolution violate Hamdi’s Fifth Amendment right to Due Process by holding him indefinitely, without access to an attorney, based on classification of “enemy combatant” from the Executive Branch definition of the word?
Does the separation of powers doctrine from Article I require the Court to defer to the Executive Branch definition that an American citizen is an “enemy combatant”?
Ruling: Yes and no. The court authorized the detention of Hamdi, but agreed that his rights are being violated and his right to due process.
Reasoning: In an opinion backed by a four-justice plurality and partly joined by two additional justices, Justice Sandra Day O’Connor wrote that although Congress authorized Hamdi’s detention, Fifth Amendment due process guarantees give a citizen held in the United States as an enemy combatant the right to contest that detention before a neutral decisionmaker. The plurality rejected the government’s argument that the separation-of-powers prevents the judiciary from hearing Hamdi’s challenge. Justice David H. Souter, joined by Justice Ruth Bader Ginsburg, concurred with the plurality that Hamdi had the right to challenge in court his status as an enemy combatant. Souter and Ginsburg, however, disagreed with the plurality’s view that Congress authorized Hamdi’s detention. Justice Antonin Scalia issued a dissent joined by Justice John Paul Stevens. Justice Clarence Thomas dissented separately.

Question 49

Griswold v. Connecticut

Answer 49

Issue: Does the Connencticut law violate the due process clause of the Fourteenth Amendment?
Does the Constitution protect the right of marital privacy against state restrictions on a couple’s ability to be counseled in the use of contraceptives?
Ruling: Yes, there is a right to privacy
Reasoning: A right to privacy can be inferred from several amendments in the Bill of Rights, and this right prevents states from making the use of contraception by married couples illegal.

In a 7-2 decision authored by Justice Douglas, the Court ruled that the Constitution did in fact protect the right of marital privacy against state restrictions on contraception. While the Court explained that the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments create the right to privacy in marital relations. The Connecticut statute conflicted with the exercise of this right and was therefore held null and void.

Justice Goldberg, joined by Justices Warren and Brennan, concurred. Rather than finding that the right to privacy was contained in imaginary penumbras, Goldberg located it in the Ninth and Fourteenth Amendments.

Justice Harlan concurred, arguing that the Due Process Clause of the Fourteenth Amendment protects the right to privacy.

Justice White concurred, arguing that the Fourteenth Amendment was the proper basis for the decision.

Justice Black, joined by Justice Stewart, dissented. Unpersuaded by the loose reasoning of the majority, Black felt that there was no way to infer that the Constitution contained a right to privacy. He also dismissed the views of the concurrences that it could be found in the Ninth and Fourteenth Amendments.

Justice Stewart, joined by Justice Black, filed a separate dissenting opinion. Stewart argued that despite his personal view that the law was “uncommonly silly,” he felt that the Court had no choice but to find it constitutional.

Question 50

Roe v. Wade

Answer 50

Issue: Does the Texas law of 1857, that forbibs abortion unless it is necesscary to save the life of a mother, violate Jane Roe’s right to an abortion protected by concept of privacy under the Ninth and Fourteenth Amendment?
Ruling: Yes it does and there is a right to privacy
Reasoning: Inherent in the Due Process Clause of the Fourteenth Amendment is a fundamental “right to privacy” that protects a pregnant woman’s choice whether to have an abortion. However, this right is balanced against the government’s interests in protecting women’s health and protecting “the potentiality of human life.” The Texas law challenged in this case violated this right.

Justice Harry Blackmun delivered the opinion for the 7-2 majority of the Court.

First, the Court considered whether the case was moot, concluding that it was not. When the subject of litigation is “capable of repetition yet evading review,” a case need not be dismissed as moot. Pregnancy is a “classic justification for a conclusion of nonmootness.”

The Due Process Clause of the Fourteenth Amendment protects against state action the right to privacy, and a woman’s right to choose to have an abortion falls within that right to privacy. A state law that broadly prohibits abortion without respect to the stage of pregnancy or other interests violates that right. Although the state has legitimate interests in protecting the health of pregnant women and the “potentiality of human life,” the relative weight of each of these interests varies over the course of pregnancy, and the law must account for this variability.

In the first trimester of pregnancy, the state may not regulate the abortion decision; only the pregnant woman and her attending physician can make that decision. In the second trimester, the state may impose regulations on abortion that are reasonably related to maternal health. In the third trimester, once the fetus reaches the point of “viability,” a state may regulate abortions or prohibit them entirely, so long as the laws contain exceptions for cases when abortion is necessary to save the life or health of the mother.

Question 51

Is judicial review anti-democratic? Why should the Supreme Court (full of unelected officials) be able to strike down laws passed by legislatures (institutions full of elected officials, whose policies presumably represent the wishes of the people)? Or, perhaps worse, strike down state initiatives enacted by a majority of voters? In your answer, discuss the reasoning in Marbury as to why judicial review exists, and refer to the reasonings or dissents in cases in which the Supreme Court has struck down popular laws or initiatives to support your opinion that this is or is not judicial review is an appropriate function of the Supreme Court.

Answer 51

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Question 52

Discuss the Supreme Court’s holdings involving the separation of powers. When has the Court seemed willing to uphold actions taken one branch that seem to cross across the powers of another branch? Illustrate with examples.

Answer 52

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Question 53

Discuss the process cases go through to get to the Supreme Court—both the procedure itself and also the factors considered when the Supreme Court is deciding whether to hear a particular case.

Answer 53

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Question 54

From the cases we have studied, explain some of the types of ‘tests’ the justices have employed to reach decisions. What are the advantages or disadvantages of establishing these types of ‘tests’?

Answer 54

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Question 55

Explain the competing approaches to judicial interpretation, and use examples from the cases to illustrate at least 3 of these approaches. Which approach do you find most compelling and why?

Answer 55

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