Midterm Flashcards
Judicial Review
-Refers to the idea that federal courts have the power to determine the constitutionality of statutes and executive actions.
-This power has constitutional foundations in Article III saying that the judiciary has power that shall extend to all cases under the constitution and Article VI saying all judicial officials are bound to support the constitution.
-Ultimately, it’s established by Marbury v. Madison when SCOTUS nullify an act of Congress as unconstitutional.
-Whitington justifies judicial review based on its ability to impact entrenched interest, federalism, cross pressure coalitions and fractious coalitions.
Judicial Supremacy
-Refers to the idea that the court gets the last word on constitutional meaning.
-This is in direct contrast to “popular constitutionalism” in which the people have active and ongoing control over the constitution
-Supported by the idea that the SC is historically popular, the court strategically built its own power, as well as institutional dynamics.
-Judicial supremacy refutes the idea that the judiciary is the weakest branch, because they were able to build their own power of supremacy out of the vague framework of the constitution. For example, Cooper v. Aaron (1958) solidifies that “the federal judiciary is supreme in the expo
sition of the constitution”
-The benefits of judicial supremacy include protecting the meaning of the constitution, protecting minorities/public opinion/rights from tyranny AND when congress can not.
-Some of the dangers of judicial supremacy include the power of unelected officials to override elected officials, as well as an invalidation of state level or majority opinion.
Recognition Judges
-Format of judicial branch in which judges are appointed by elected officials. Federal judges are appointed by the President, while state level judges are elected. There are no necessary qualifications, as judges are recognized, then appointed.
-The United States uses this system, as it is a part of the common law system.
-This is in direct contrast to the career judges of civil law, where judiciaries work their way up the system with certain requirements, such as specialized training and education.
-With recognition of judges, there is an opportunity for politicized powers to work on judges, as well as allowing individual judges to have a legacy of influence, such as Marshall establishing judicial review.
Constrained Court
-A viewpoint regarding the Courts connection to social reform, saying that “courts will generally not be effective producers of significant social reform.”
-Rosenberg contributes this to the limited nature of constitutional rights, the lack of judicial independence, and the judiciary’s inability to develop appropriate policies and its lack of powers to implementation
-This is in direct contrast to the dynamic court view, stating that the courts are UNLIKELY to be effective producers of social reform, but it is possible
-We see this constrained court in action in McDonald v. Chicago (2011) as the ladder barely had any impact on gun control
Dynamic Court
-A viewpoint regarding the Courts connection to social reform, saying that courts will generally can be ineffective producers of significant social reform, but still CAN
-Rosenberg contributes this to the fact that courts are free from electoral constraints, as well as its indirect effects through publicity and litigation.
-This is in direct contrast to the constrained court view, stating that the courts are not likely to be effective producers of social reform
-Examples of the impact of the dynamic court include
-Early marriage equality suits pressured states to adopt domestic partnership laws
-United States v. Wong Kim Ark (1898) where the 14th amendment guarantees citizenship to all born in the us and nullifies parts of the Chinese Exclusion act of (1882)
Popular Constitutionalism
-Idea that Judicial interpretations “subject to direct supervision and correction by the superior authority of the people themselves”
-This is is based on the idea that the public constructs other departments of government such as Congress and the President who in turn construct the federal courts
-In our course, we looked at Texas Governor Abbott’s assertion of his right to interpret the Constitution in the Texas Border Controversy, where he disagrees with a SCOTUS ruling
-With this in mind, popular constitutionalism is a competing idea to judicial supremacy
Originalism
-Interpretive canon in which judges look to the “original intention” of framers of the constitution
-Direct contrast to living constitutionalism,
-Judges, such as Scalia, that support originalism claim it has a sense of stability, predictability and takes precedent into account
-Cons include the fact that it is difficult to employ and does not take into account modern problems.
-This is an extremely impactful concept on our course, because justices use originalist interpretation to analyze the meaning of the constitution in landmark cases.
-Origninalist argument of Trump v. Anderson: looking at insurrection in the context of 14th amendment, Civil War
Living Constitutionalism
-Interpretive canon in which the Constitution is read as a living document, and not held to the standards of original intent.
-Judges, such as Brennan and Marshall, that support living constitutionalism because it allows for social reform, evolution and adaptation, as well as removes the impracticalities of originalism and morals of founders
-Some cons include that it can appear to totally stray from the text, and ends up being a less secure argument for amending the constitution.
-This is impactful for social reform, because it can provide a more malleable tool for moral changes.
-Living Constitutionalism argument: engagement in insurrection takes many forms, in this day, speech/posts count as inciting violence and insurrection
Attitudinal Model
-A theory on judicial decision making determining that judges made decisions based upon their political ideologies and are unconstrained by legal concerns
-Instead, they use the law to rationalize policy preferences
-Some indicators of this include the correlation between votes + preferences of appointing precedents, vote coalitions, 5-4 decisions as well as biography and case votes
-This is important to the course because it aims to explain a strategic measure in which judges try to create policies from the bench.
Standing
-The standard in judicial procedure that determines a litigant’s right to argue a case.
-Lujan v. Defenders of Wildlife is a landmark case for heightening the requirements of standing
-To have standing, a litigant must prove injury, causation and redressability
-Standing is extremely important for reform within the court, because it can prevent or allow participation of landmark decisions.
Certiatorari
- Certiorari is a writ in which a higher court orders documents to review the decision from a lower court.
-The SC often does this when a lower court makes a ruling is of national significance or conflicts with SC percent or there is an appellate court split
-Granting certiorari requires 4 votes in SCOTUS
-This influences who gets to court, and how quickly they do in social reform cases.
Political Questions Doctrine
-A doctrine stating guiding federal courts to stay away from anything that could be defined as a politicized issue.
-Limits the ability of the federal courts to hear constitutional questions even where other justiciability requirements, such as standing, ripeness, and mootness, would otherwise be met.
-Pros include ensuring the judiciary are deciding legitimate cases, as well as expressing concern for judicial restraint.
-Cons include a lack of recourse, that PQD is too easy to invoke and that it causes judicial power to shrink
-If something is ruled a PQ, it is deferred to another branch, therefore empowering other parts of the government. Such as Rucho v. Common Cause (2019) where the federal court refuses to rule on federal gerrymandering.
-This can diminish social reform when judges refuse to weigh in on something.
Constitutional Evil
-A constitutional evil is an inherent, moral wrong written into law by the framers of the constitution. The constitution has evil based into it.
-Often in conversation with the Dred Scott decision, in which the original text of the Constitution assisted in an evil agenda.
-Slavery, gun laws, death penalty all have arguable constitutionalism based on original text
-Causes modern nation to ask how much evil you are willing to tolerate, and when to break away from evils
Convict Leasing
-A legal work around that allowed for the indentured servitude of incarcerated people: prisons loan prisoners to private businesses
-Functioned in the South after the Civil War because of financial weakness, prison overpopulation, racism, need for social control, war expenses, loss of main economic revenue (slavery) and taxation issues
-This was a “bipartisan” program that was undeniably profitable and viewed as politically progressive (prison in comparison to public executions)
-Turned black lawmakers against black citizens in order to stay in good graces
Justice John Harlan
-Landmark dissent on the Civil Rights Cases of 1883, road not taken at the time
-Argues that CRC interpretation of the 13th amendment was too narrow
-Defined “badge of servitude” concept as a transgression against the 13th amendment
-Concept that would later be taken into consideration in protect the rights of black americans w/ 14th amendment
-Landmark dissent on Plessy v. Ferguson, defining that the Constitution was color blind
