senate flashcards

Question 1

Fourth Amendment rights

Answer 1

Secure against unreasonable searches and seizuresNo warrants shall issue except on oath, probable cause, and particularly describing what will be searched

Question 2

Fifth Amendment rights

Answer 2

To be charged by indictment of a grand juryDouble jeopardySelf-incriminationDue Process (right not to be deprived of life, liberty, or property without due process of law)Takings (private property shall not be taken for public use without just compensation)

Question 3

Sixth Amendment rights

Answer 3

Criminal trial rights:To be informed of the nature of the chargesTo a speedy and public trial by impartial juryRight to counselRight to confront witnessesRight to subpoena witnesses

Question 4

Rational basis scrutiny

Answer 4

Rational basis to believe related to a legitimate government interest

Question 5

Intermediate scrutiny

Answer 5

Substantially related to an important govt interest

Question 6

Strict scrutiny

Answer 6

Narrowly tailored to a compelling govt interest

Question 7

Marbury v. Madison

Answer 7

Courts decide whether laws are unconstitutional

Question 8

Article III standing

Answer 8

Injury in fact, causation, redressability. Ripeness and mootness as prudential concerns.

Question 9

Chevron deference

Answer 9

Refers to the effect of formal agency rulemaking that interprets the scope of the agency’s authorizing statuteStep one: If plain text of statute is clear and unambiguous, it controls. If statute is ambiguous, go to step two.Step two: Defer to agency’s interpretation if reasonable interpretation.

Question 10

Exceptions to Chevron

Answer 10

Non-delegation doctrineMajor questions per West Virginia v. EPA

Question 11

West Virginia v. EPA

Answer 11

Major questions doctrine: “extraordinary cases” where agency claims broad delegation of such economic and political significance that there is a “reason to hesitate before concluding that Congress meant to confer such authority.” Statute must make a “clear statement” of intent to delegate such authority.

Question 12

Non-delegation doctrine

Answer 12

Congress cannot delegate its legislative powers to other entities. Must give agencies an “intelligible principle” on which to base regs.

Question 13

Penumbra of rights

Answer 13

Based on Griswold v. CT: privacy is a right within the penumbra of the 1st, 3rd, 4th, and 5th Amendments; also relies on 9th Am’s reservation of unenumerated rights to the people

Question 14

Supreme Court’s test for overturning own precedent

Answer 14

Dobbs v. Jackson Women’s Health; also, Janus v. AFSCME: under stare decisis, must have strong grounds for overturning. Factors are:Quality of reasoningWorkabilityConsistency with subsequent opinionsNew developmentsReliance

Question 15

Unenumerated rights in substantive due process

Answer 15

Washington v. Glucksberg - rights recognized only if (1) deeply rooted in nation’s history and tradition, and (2) so essential to the concept of ordered liberty, such that neither liberty nor justice would exist without it.

Question 16

Dobbs v. Jackson Women’s Health (2022)

Answer 16

Returns right of abortion to the states. No constitutional right to abortion, so rational basis review applies.

Question 17

Whole Women’s Health v. Jackson (2021)

Answer 17

Texas SB 8 case. Ex Parte Young bars pre-enforcement injunctive relief against state court judges and clerks to prevent them from applying SB8. Allowed that relief re state medical licensing board.

Question 18

June Medical Services v. Russo (2020)

Answer 18

Requirement of hospital admitting privileges for doctors conducting abortions = unconstitutional because it imposes an undue burden. Overturned in Dobbs.

Question 19

Bostock v. Clayton County (2020)

Answer 19

Title VII prohibits employment discrimination because of sex. That includes discrimination based on sexual orientation or gender identity. Employer must rely on sex to discriminate on these basis. Doesn’t matter why employer is relying on sex (e.g., discriminate against “mothers” versus women). Doesn’t matter that same adverse conseq to men and women as a whole.

Question 20

Carson v. Makin (2022)Espinoza v. Montana Dept of Revenue (2020)

Answer 20

Maine allows parents whose school districts do not have their own high school to get tuition assistance that can be used for private school. May not limit tuition assistance to “non-sectarian schools.” Discriminates based solely on religious character of school and is subject to strict scrutiny.Montana may not bar aid to schools controlled by a religious entity, for same reason.

Question 21

Kennedy v. Bremerton School District (2022)

Answer 21

Recognizes SCOTUS’s prior rejection of Lemon test (reasonable observer believes endorsement). Test for establishment clause is by reference to historical practices and understandings. In line with other precedents requiring Constitution to be interpreted by the original public meaning at the time of enactment.

Question 22

Tandon v. Newsom (2021)

Answer 22

Not neutral and generally applicable if state treats ANY comparable secular activity moreaq favorably than religious exercise.Comparable secular activity is based on govt interest (e.g., imposes same risk)If other activity can proceed with precautions, govt must show why relig activity is more dangerous with same precautions. Cannot assume worst when people go to worship and best when people go to work.

Question 23

NY State Rifle Ass’n v. Bruen (2022)

Answer 23

If 2d Am’s plain text covers conduct, firearm regulation is permissible only if consistent with the nation’s historical tradition of firearms regulation. Not a balancing / intermed scrutiny. One-step analysis.

Question 24

District of Columbia v. Heller (2008)

Answer 24

2d amendment protects indiv right to keep and bear arms in the home for self-defense. Not unlimited; longstanding prohibitions on carrying firearms in sensitive places, possess by felons or mentally ill, or regulating commercial sale of firearms are ok. Requirement that handguns in the home must be trigger locked or disassembled violates 2d Am bc renders inoperable for core right of self-defense.Handgun is quintessential self-defense firearm. 2d Am is not limited to guns existing in 18th c.

Question 25

McDonald v. City of Chicago (2010)

Answer 25

Heller applies to the states through 14th Amendment. Selective incorporation of rights “fundamental to our nation’s scheme of ordered liberty and system of justice.” Generally includes whole Bill of Rights. Indiv rt of self-defense is central component of 2d Am.

Question 26

Our Lady of Guadalupe School v. Morrisey-Berru (2020)

Answer 26

1st Am bars courts from intervening in employment decisions re certain important positions in churches and other religious institutions. This “ministerial exception” covers teachers at parochial schools who teach religion and inculcate or model religious values. Those functions are at the “core” of “religious school’s mission.”

Question 27

Religious Freedom Restoration Act

Answer 27

Bars govt from “substantially burdening” a person’s exercise of religion, unless (a) narrowly tailored to (b) compelling govt interest.

Question 28

Burwell v. Hobby Lobby (2014)

Answer 28

Recognizes that for-profit corporations are “persons” within RFRA.Requiring corporations to provide contraceptive coverage regardless of owners’ beliefs violates RFRA. Not least restrictive means: can extend exemption for relig orgs, or govt can pay cost instead of corps.

Question 29

Enacting DOMA = bigoted?

Answer 29

As an advocate, I argued that DOMA failed rational basis scrutiny. At no point in that argument did I argue that the legislators or supporters of DOMA were bigoted. In fact, we expressly disavowed that argument. We noted that Supreme Court has consistently held that a law can fail rational basis scrutiny even if adopted without any hostile intent. (Lawrence; see also Board of Trustees v. Garrett (Kennedy, J., concurring). Judge White agreed.

Question 30

Masterpiece Cakeshop v. Colorado Civ Rights Comm’n (2018)

Answer 30

Baker refused to create cake for same-sex wedding due to sincerely held religious belief. Colorado Civ Rights Comm’n based its decision on hostility to baker’s religious viewpoint. Allowed other bakers to refuse to make cakes with messages opposing same-sex marriage, because “offensive.” Govt has no role in passing judgment on legitimacy of relig beliefs.

Question 31

Interpreting a statute

Answer 31

Begin with Supreme Court and 9th Cir precedent, and the plain text If not clear, consult statutory definitions and apply canons of construction, look to binding precedent re analogous statutes. [If all else fails, look to persuasive authority from other courts, and as a last resort, go to legislative history and structure of statute to divine meaning.]

Question 32

Interpreting a constitutional provision

Answer 32

Supreme Court and 9th Cir precedentIn unusual circumstance where first impression, look at text and meaning of the terms at issue, and draw on analogous SCOTUS and 9th Cir precedent and persuasive authority from other juris.

Question 33

Role of jury

Answer 33

There is a reason that the Bill of Rights guarantees the right to trial by jury. The jury is an essential guardian of liberty and justice. My current assignment is to preside over criminal trials. I work with juries every day, and it is the best part of my job. I am constantly impressed with jurors’ careful attention and dedication. They take their civic duty incredibly seriously and recognize the important role they play in our democracy.

Question 34

Originalism?

Answer 34

As explained in Heller and Crawford, Constitution’s words are interpreted according to their original public meaning at the time of enactment.

Question 35

Laws of foreign nations?

Answer 35

Constitution is a domestic document. I would look to domestic precedent, and then the text of the Constitution itself.

Question 36

Federal common law

Answer 36

Refers to concept of rules developed through decisions of federal courts in cases and controversies that come before them. But Sup Ct has said there is “no general federal common law.” (Erie)

Question 37

Some forms of legislative history less persuasive?

Answer 37

Generally, text is strongest evid of what legislature meant to do. Supreme Court has described some forms of legislative history as less persuasive, like comments of individual legislators during a floor debate or failed legislative proposals.

Question 38

Judicial activism definition?

Answer 38

Judges decide cases on their own personal views or with an outside political agenda. Or judges reach out to decide issues not properly presented to them. Both are improper.

Question 39

Ascribe to concept of living Constitution?

Answer 39

Carries a lot of baggage, but basically no. The genius of the Constitution is that it has an enduring fixed quality. Its meaning does not change over time, though it is constantly applied to new situations.

Question 40

What legal standard to determine if facially neutral regulation violates free exercise?

Answer 40

Apply strict scrutiny unless a law (a) only incidentally burdens free exercise, AND (b) is neutral and generally applicable. Employment Division v. Smith.Not neutral if (a) on its face it discriminates against religion, or (b) record shows motivated by religious animus (Masterpiece Cakeshop).Not generally applicable if (a) has mechanism for indiv exemptions (Fulton), or (b) treats any comparable secular conduct more favorably than religious conduct (Tandon v. Newsom). Comparability looks at govt interest at issue. Must show that relig exercise is more dangerous than secular when same precautions applied. Cannot assume worst when people go to worship and best when they go to work. (Tandon)

Question 41

US v. Windsor (2013)

Answer 41

DOMA violates eq prot and due process because its purpose and effect was to disadvantage and stigmatize those entering into same-sex marriages. Departed from longstanding deference to state law on issues of marriage.

Question 42

Why is federalism important?

Answer 42

Federalism is an important principle in our constitutional system, and it is another layer of protection for individual liberty. The fed constit is a floor, not a ceiling, and state constits can provide additional protections. Also, states can be a laboratory for experimentation. And state and local governments can tailor their policies to fit their particular communities.

Question 43

When should a court declare a statute enacted by Congress unconstitutional?

Answer 43

Question must be properly presented in a case meeting A3 standing and prudential requirements.Also, statute must exceed Congress’s authority or infringe a constitutional right.Congressional statutes are entitled to a presumption of constitutionality, and courts should avoid unnecessarily deciding constit questions.

Question 44

Does Commerce Clause power extend to non-economic activity?

Answer 44

In conj with Necessary and Proper Clause, Commerce Clause allows Congress to regulate (1) channels of interstate commerce, (2) instrumentalities of interstate commerce, and (3) activities that substantially affect interstate commerce. Lopez and Morrison are governing cases. Non-economic activity may be regulated if it is essential part of larger regulation of interstate economic activity. (Raich)

Question 45

What are the limits on the President’s powers?

Answer 45

Youngstown (1925) lays out the framework.Must be based on constit authority or statutory authority.Must not encroach on another branch’s authority.Must not violate constitutional rights.

Question 46

Scope of qualified immunity

Answer 46

Govt officials are shielded from civil damages where conduct does not violate “clearly established constitutional or statutory rights of which a reasonable person would have known.”

Question 47

10th Amendment

Answer 47

Reserves certain powers not specifically delegated to fed govt to the states (and the people)

Question 48

McCollough v. Maryland

Answer 48

States cannot interfere with the federal govt when it uses its implied powers under Necessary and Proper clause. There, feds set up national bank, and Maryland was barred from taxing it (the power to tax is the power to destroy).

Question 49

Younger abstention

Answer 49

Fed court cannot entertain civil suit regarding pending state criminal case unless (a) bad faith, (b) harassment, or (c) state criminal case is enforcing a state law that is patently unconstit under fed constit.

Question 50

Pullman abstention

Answer 50

Where a case presents both state law question and fed constit issue, and answer under state law is not clear, and may obviate need to reach fed constit issue, fed court should abstain to allow party to obtain ruling from state court as to state law issue.

Question 51

Ninth Amendment purpose

Answer 51

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Just because a right is not explicitly mentioned doesn’t mean it doesn’t exist. Glucksburg test.

Question 52

What is the legal basis for universal injunction?

Answer 52

FRCP 65 governs the court’s authority to issue injunctions. Injunction is an extraordinary remedy. Should not be broader than necessary to provide complete relief to the plaintiff without undue burden to the defendant.[I know that is a topic of litigation. I have not confronted that issue in my 18 years of practice as a civil litigator, federal prosecutor, or state court judge, so I do not have a personal view on that topic. If I were so fortunate as to be confirmed, I would follow all relevant precedents from the 9th Circuit and Supreme Court.]

Question 53

Fundamental right to travel?

Answer 53

Based on 14th Am privileges or immunities clause

Question 54

Privileges or Immunities Clause?

Answer 54

14th Am prohibits states from abridging federal rights that all citizens have, such as fundamental right to travel, vote, petition Congress.

Question 55

Privileges and Immunities Clause

Answer 55

Art IV, Section 2, prohibits states from discriminating against citizens of other states with respect to certain rights (right to travel)

Question 56

Exceptions to warrant requirement

Answer 56

ExigencyAutomobile exceptionPlain viewConsentSearch incident to arrestPat search in connection with detentionParole or probation searchAdministrative exceptions (booking search, routine fire inspection, inventory search, border search)

Question 57

Independent and adequate state grounds

Answer 57

Doctrine of SCOTUS. Applies where an appeal from a state court decision raises a federal ground for reversal, but there is an indep and adeq state law ground that supports the decision. SCOTUS will not take the case. [Does not apply to courts of appeal, but Pullman abstention can apply.]

Question 58

Recusal bases

Answer 58

28 U.S.C. 455 (disqualification), guidance from the Judicial Conference, and Code of Conduct for United States Judges. Consult chief judge.

Question 59

Do you agree with Brown v. Board?

Answer 59

Yes. Generally, as a sitting judge, I am prohibited from commenting on my views as to topics that are likely to come before me. However, Brown is settled law, and I do not believe that the issue of whether de jure segregation is legal is likely to come before me, so I believe I can answer that question, and as I said, my answer is yes.

Question 60

Crawford v. Marion County (2009)

Answer 60

Prevention of voter fraud is a valid state interest, as is public confidence in elections. Photo ID laws are not per se unconstitutional. Rejected facial challenge to Indiana’s voter ID law.

Question 61

Appellate review standards

Answer 61

Fact - clear errorDiscretion - abuse of discretionLegal - de novoMixed question of law and fact - findings of fact for clear error, conclusions of law are reviewed de novo

Question 62

Summary judgment

Answer 62

FRCP 56. No genuine dispute of material fact. One party entitled to judgment as a matter of law.

Question 63

Motion to dismiss

Answer 63

FRCP 12(b)(6). The complaint fails to state a claim on which relief can be granted. Must take all allegations of the complaint as true and construe the complaint liberally in P’s favor.

Question 64

Class actions

Answer 64

Rule 23: numerosity, commonality, representativeness, and adequacy. Also whether common questions of law predominate. Also 23(b)(3) classes (damages) require individual notice, not for 23(b)(2) (injunctive relief).

Question 65

Personal jurisdiction

Answer 65

General jurisdiction (residents; for corps, “nerve center” and where incorp)Specific jurisdiction (“minimum contacts” so juris does not offend traditional notions of fair play and subst justice)

Question 66

Federal jurisdiction

Answer 66

Federal question (“arises” under federal law if federal law appears on face of well-pleaded complaint)DiversitySupplementalClass Action Fairness Act - $5M and 100+ class members, need only minimal diversity (only need one class member from a state different than defendant’s home state)

Question 67

Political question

Answer 67

Textual basis to believe constit commits issue to political branchNo judicially discoverable or manageable standards to resolve it. Example is political gerrymandering case.

Question 68

Basis to sue govt officials?

Answer 68

Bivens (federal)42 USC 1983 (state)

Question 69

First Amendment

Answer 69

Religion (establishment and free exxercise)SpeechAssemblyPetitionPress

Question 70

Number of jurors in civil trial

Answer 70

6-12. Must be unanimous unless stip otherwise.

Question 71

Judicial oath

Answer 71

administer justice without respect to persons, anddo equal right to the poor and to the rich, andthat I will faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and laws of the United States

Question 72

Erie

Answer 72

State substantive law and fed proc law applies to diversity cases

Question 73

Lochner

Answer 73

Substantive due process covered liberty of contract and prohibited rules on overtime. Since overruled.

Question 74

Establishment Clause test

Answer 74

Lemon test - the govt violates the establishment clause if:the govt’s primary purpose is to advance religionthe principal effect is to aid or inhibit religionthere is excessive govt entanglement with religion

Question 75

Preliminary injunction test

Answer 75

Likelihood of success on the meritsIrreparable harmEquities in movant’s favorPublic interest

Question 76

DOMA - argued 9th Cir precedent High Tech Gays re heightened scrutiny does not apply to sexual orientation

Answer 76

Argued as advocate that SCOTUS’s reasoning in Lawrence overruled HTG. (HTG relied on Bowers.) Dist court agreed, and so did 9th Circuit in a different case (Lara v. Otter challenging constit of state laws prohibit same-sex marriage).

Question 77

Does heightened scrutiny apply to sexual orientation discrimination?

Answer 77

Yes, in the 9th Circuit (Lara v. Otter).

Question 78

DOMA - argued that LGBTQ groups are politically powerless, but what about Respect for Marriage Act?

Answer 78

Argued as an advocate. Supreme Court has held that racial minorities are protected class despite passage of Civil Rights Act of 1964. Held in Frontiero that women are protected class even though Congress had already passed law prohibiting sex discrimination in Title VII.

Question 79

DOMA - caution is never a legit govt interest?

Answer 79

Not what we argued. Argued that DOMA in particular was not cautious bc it affected over 1000 rights in one fell swoop, and in an area traditionally reserved to the states.No opinion re whether that can be a legit govt interest in another context.

Question 80

Recusal re same-sex marriage issues

Answer 80

Would recuse as to any case I worked on. I have not worked in this area since 2014, so most matters have reached final judgment. Would apply 28 USC 455, Guidance from Judicial Conference, Code of Conduct. Consult chief judge.

Question 81

28 USC 455

Answer 81

Recuse from any matter in which impartiality might reasonably be questioned.Personal bias or prejudicePersonal knowledge of disputed evidentiary factsWorked on the matterFinancial interestRelationship with parties, lawyers, or material witness

Question 82

DOMA - believe legislators are bigots

Answer 82

Opposing counsel argued that invalidating DOMA would require a finding that individual legislators were motivated by bigotry. Disagreed in our response. Finding no rational basis does not require finding of malice or animus.

Question 83

Higginbotham and ECPA decision

Answer 83

Based on plain text of California’s Electronic Communications Privacy Act. Sealing requirement applies only to “warrants for electronic information.” Vehicle tracker is not a warrant “for” electronic information, because the govt owns the tracker and does not need a warrant to access it. The warrant is to allow placement of the tracker on the car. Separate statute allowed warrants for vehicle tracker placement, how long the trackers could stay on, etc.

Question 84

You co-authored two articles that called for judges to use social science to determine pre-trial detention decisions. You wrote, “A better understanding of what social science has to say about release conditions and their costs and benefits can help courts make wise decisions in this evolving area.” You also wrote, “a growing body of empirical literature can aid judges in making practical and effective release orders.” What matters more to you when making pre-trial detention decisions: whether social science says release would be good for the defendant or safety to the community?

Answer 84

I have conducted over 1000 bail and detention determinations. In every case, public safety is my first guidepost, as well as return to court. To analyze public safety, it can be useful to know which release mechanism are most effective in preventing reoffense. But, as we note in both articles, each case must be decided based on the individual circumstances of the alleged crime and the defendant.

Question 85

James Shirvell sentence

Answer 85

That was the punishment the prosecution asked for. It was a plea agreement that the prosecution reached with the defense, which I ratified.I have sentenced hundreds of defendants as a judge. Some of my sentences are long and some are short. I recently sentenced a defendant to 70 years to life in prison after trial. In every case, I look at the individual circumstances, the aggravating and mitigating factors, and issue a sentence according to the law.

Question 86

James Shirvell release

Answer 86

I have presided over more than a thousand motions for bail and release as a judge. In every case I look to public safety and return to court as the two key factors. In Mr. Shirvell’s case, I put him on house arrest with an electronic monitor, drug testing condition, and $200,000 bail. That was based principally on his complete lack of any criminal history and the request of the victim and her family, who believed he posed no safety threat to her. After 1.5 years, the DA moved to dismiss the attempted murder charge and asked me to sentence him to probation on a lesser charge.

Question 87

Daubert

Answer 87

Test for admiss of expert testimony. Examines whether scientific method is reliable: (1) testing, (2) error rate, (3) peer review, (4) acceptance within scientific community, (5) standard methodology.

Question 88

SEC Rule 10b5

Answer 88

Securities fraud standard

Question 89

Mixed question of law and fact

Answer 89

De novo review, unless mixed question is primarily factual (in which case, clear error standard applies)