Test 4 Flashcards
1
Q
Executive Branch
A
President +
Enforces the law
Article II
2
Q
Legislative Branch
A
Congress
Makes the laws
Article I
3
Q
Judicial Branch
A
Supreme Court +
Interprets the laws
Article III
4
Q
“Judicial branch” or “judiciary”
A
Means the court system
Courts (the judge, and sometimes a jury) decide cases
Rather than create laws, the court applies laws to a specific situation
Civil case, criminal case
5
Q
Civil case
A
One party (the plaintiff) sues another party (the defendant) for money damages
6
Q
Criminal case
A
The government prosecutes a defendant accused of a crime. If convicted, the defendant may go to prison
7
Q
Courts generally have ________
A
Multiple levels
8
Q
Courts generally have multiple levels
A
A case generally starts out in trial court. The trial court’s decision can be appealed to a higher court
Higher courts publish their decisions as case law
Lower courts, higher courts
9
Q
Higher courts
A
Can change their own case law
BUT there is a strong preference to stand on prior decisions (stare decisis)
10
Q
Lower courts
A
Bound to follow the caselaw of higher courts. This is called following precedent
11
Q
Most courts have _____ levels
A
3
12
Q
Court levels
A
Supreme Court (top) Appeals court Trial court (bottom)
13
Q
In general, only the _________ uses a jury
A
Trial court
14
Q
In general, only the trial court uses a jury
A
The jury must follow the law as instructed by the judge
The job of the judge is to decide the law. The job of the jury is to decide the facts
If the facts are not disputed, the judge can decide the case without a jury
The higher (appeals) courts only decide the law. If the facts are in dispute, they will send the case back to the trial court for a jury to consider
15
Q
Art. III of the Constitution creates the ______
A
Supreme Court
16
Q
Members of the Supreme Court serve ____
A
For life
17
Q
Members of the Supreme Court serve for life. Why?
A
Life tenure helps judges remain independent and impartial
Life tenure is necessary to attract qualified candidates
18
Q
How many justices are there on the Supreme Court
A
9
19
Q
Current Supreme Court justices
A
Kagan (Obama) Alito (Bush II) Sotomayor (Obama) Gorsuch (Trump) Ginsburg (Clinton) Kennedy (Reagan) Roberts (Bush II) Thomas (Bush I) Breyer (Clinton)
20
Q
Justice Scalia
A
2-13-16
One of the three most conservative justices on the Supreme Court
Known for his scathing dissents, and for his emphasis on originalism
21
Q
Newest justice
A
Neil Gorsuch
22
Q
The Supreme Court decides cases by ______
A
Majority vote
23
Q
The Supreme Court decides cases by majority vote
A
The written “majority opinion” becomes caselaw which lower courts must follow
Justices who disagree with the majority may write a dissent
Justices may also concur
24
Q
Concur
A
Agree with the majority’s result but want to write their own opinion
25
The Supreme Court is divide by _______
Political ideology
26
The Supreme Court is divided by political ideology
In general, the more liberal justices interpret the Constitution in favor of federal government intervention
In general, the more conservative justices interpret the Constitution to limit the federal government
27
Art III of the Constitution also creates _____
“Inferior courts”
28
Inferior Courts
Only 1% of cases appealed to the Supreme Court are accepted for review
An appeal from the Circuit Courts of Appeals may go the Supreme Court
There are 12 regional Circuit Courts of Appeals
29
Louisiana if part of the ______ Circuit
5th
30
Louisiana is part of the 5th Circuit
An appeal from one of the LA federal district courts will go to the 5th Circuit Court of Appeals
Louisiana has federal trial courts for the Western, Middle and Eastern districts
31
The Federal Courts have 3 Levels example
U.S. Supreme Court (top)
5th Circuit Court of Appeals
Federal District court for the Western District of Louisiana (bottom)
32
The Legal Challenge to Obamacare: NFIB v. Sebelius
26 states challenging Obamacare with the NFIB
Kathleen Sebelius
33
Kathleen Sebelius
Secretary of Health and Human Service with President Obama
34
The state court systems
Total separate
LA (state) District Courts
LA (state) Courts of Appeal
LA (state) Supreme Court (in New Orleans)
35
The federal courts have _____
Limited jurisdiction (power)
36
Federal courts have limited jurisdiction (power)
Federal courts handle cases arising under the Constitution or federal law (Article III)
Federal courts also handle cases between citizens of different states (Article III)
Most common cases will be in state court rather than federal court
Thus the saying, “Don’t make a federal case out of it!”
37
President - check and balances
Appoints judges with Senate approval
38
Senate - checks and balances
Can block the President’s appointments
39
Judges - checks and balances
Can declare the actions of the President or Congress unconstitutional
40
How did the Founders view the Judiciary?
As an important check on Congress
41
The Founders viewed the Judiciary as an important check on Congress
The Supreme Court’s jury “must be to declare all acts contrary to the clear meaning of the Constitution void”
The Founders also felt the Supreme Court was the “weakest of the three departments of power” and would never threaten liberty
42
The Supreme Court has declared both federal and state laws _________
Unconstitutional
43
The Supreme Court has declared birth federal and state laws unconstitutional
The Supreme Court overturned many laws regulating business during the Progressive Era
Starting in the 1960s, the Supreme Court overturned many laws regulating social conduct
44
The Supreme Court has made some serious mistakes
Dred Scott v. Sandford (1857)
Plessy v. Ferguson (1896)
Korematsu v. U.S. (1944)
45
Dred Scott v. Sandford (1857)
Said that slavery was a right protected by the Constitution
46
Plessy v. Ferguson (1896)
Said the Constitution did not prohibit racial segregation
47
Korematsu v. U.S. (1944)
Said the Constitution did not protect Japanese Americans from forced relocation during WWII
48
The Supreme Court was _____ to be the final word not the Constitution
Not intended
49
The Supreme Court was not intended to be the final word not the Constitution
The Constitution is supreme over Congress and the Court equally
Both Jefferson and Jackson claimed that each branch has the right to interpret the Constitution for itself
Lincoln also challenged the idea of the Supreme Court as the final authority
Remember that the Supreme Courtis not elected and not representative - why should it have the last word?
50
The 1st 10 Amendments are called ______
The Bill of Rights
51
The Bill of Rights
The Federalists believed a Bill of Rights was “unnecessary” and even “dangerous”
But the anti-Federalists demanded written protection for individual rights
The promise of a Bill of Rights was necessary to achieve ratification
The Bill of Rights provides “freedom from” government interference in our religion, speech, right to bear arms, etc.
52
1st Amendment
Protects multiple freedoms
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech; or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances
53
Establishment Clause
States “Congress shall make no law respecting an establishment of religion”
The Founders believed government should invoke God and encourage religion generally
At the same time, they believed government should not establish an official religion or denomination
The Supreme Court has interpreted the Establishment Clause to require complete separation of government and religion
The decisions have been confusing and contradictory
54
Supreme Court decisions under the Establishment Clause have been confusing and controversial
Allegheny County, 1989
Van Orden, 2005
Engel v. Vitale, 1962
Santa Fe ISD, 2000
55
Allegheny County, 1989
Menorah in front of public building “OK” (Allegheny Country, 1989)
Nativity scene on courthouse stairway “Not OK” (Allegheny County, 1989)
4 justices thought both permissible, 3 justices thought both should be removed. Only 2 justices thought the presence of the (secular) Christmas tree made a difference
56
Van Orden, 2005
Ten Commandments on Texas capital grounds “OK”
Ten Commandments in courthouse “Not OK”
Both decisions were 5-4 (in opposite direction)
57
Engel vs. Vitale, 1962
Official school prayer “Not OK,” even if voluntary
58
Santa Fe ISD, 2000
Pregame prayer @ public school “Not OK”
59
Free Exercise clause
States that Congress shall make no law prohibiting the free exercise of religion
But what if someone’s religion conflicts with laws that apply to everyone?
- Reynolds, 1878
- Wisconsin v. Yoder, 1971
- Employment Division v. Smith, 1990
- Burwell v. Hobby Lobby, 2014
60
Reynolds, 1878
Polygamy not protected
61
Wisconsin v. Yoder, 1972
Religious objection to high school protected
The Supreme Court applies a balancing test to determine whether the religious belief must be accommodated
62
Employment Division v. Smith, 1990
Religious use of peyote not protected
Overruled by Congress in the Religious Freedom Restoration Act (1993)
63
Burwell v. Hobby Lobby, 2014
Religious objection to providing health coverage for abortion drugs protected
64
The First Amendment states “Congress shall make no law...abridging the freedom of speech”
Freedom of speech is not absolute. Many forms of speech are regulated, and some speech is not protected at all
The government can put some “time, place, and manner” restrictions on speech
First Amendment Area
However, censoring the content of speech is unconstitutional, with limited exceptions
65
The First Amendment protects even...
Obnoxious and offensive speech
66
The First Amendment protects even obnoxious and offensive speech
Cohen v. California, 1971
Snyder v. Phelps, 2011
After all, no on tries to stop speech that is agreeable...
67
Cohen v. California, 1971
Jackets stating “F* the Draft” in Los Angeles courthouse was protected
68
Snyder v. Phelps, 2011
Hurtful speech by Westboro Baptist Church at military funerals is also protected
69
Criminal activity
Not free speech
70
Inflammatory speech
Protected unless it is intended and likely to incite “imminent lawless action”
71
Obscenity
Not protected
More “indecent” speech is protect, but it can still be regulated to protect children (for example, by the FCC)
72
FCC
Federal Communications Commission
73
Commercial speech
Less protected
74
FTC
Federal Trade Commission
Protecting America’s Consumers
75
Commercial speech is not protected at all if:
It relates to illegal activity
It is misleading
Even legal commercial speech is highly regulated
76
2nd Amendment
Guarantees “freedom from” government interference in our right to bear arms
Does not “give” any rights. It assumes the People’s right to bear arms is pre-existing
There are no conditions on the right to keep and bear arms
A well-regulated militia is one, but not the only, benefit of the right to bear arms
Compare: “A well-schooled electorate, being necessary to the security of a free State, the right of the people keep and read books, shall not be infringed.”
77
The Supreme Court has affirmed rights under the ______
2nd amendment
Heller (2008)
78
Heller (2008)
The 2nd Amendment protects the right to possess firearms for lawful purposes, including self-defense
The decision was 5-4
The majority opinion was written by Justice Scalia
79
4th Amendment
Protects against unreasonable searches and seizures
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”
80
There are exceptions to the warrant requirement
1. If there is an emergency, no warrant is required
2. If police have probable cause to search a vehicle, no warrant is required
3. If you consent, no warrant is required
81
5th Amendment
Contains several protections for criminal defendants
“No person...shall be compelled in any criminal case to be a witness against himself, not be deprived of life, liberty, or property, without due process of law...”
A criminal defendant can “plead the fifth...” thereby invoking the 5th Amendment “privilege against self incrimination”
82
6th Amendment
Contains protections for criminal defendants
“In all criminal prosecutions, the accused shall enjoy the right...to have the assistance of counsel for his defense.”
The Constitution does not mention who pays for the attorney!
However, the Supreme Court has interpreted the 6th Amendment to require the government to provide a lawyer at no cost if the defendant cannot afford to pay
83
Chief Justice Earl Warren
Under him, the Supreme Court expanded protections for criminal defendants
-Mapp v. Ohio (1961)
“Miranda Rights” —> Miranda v. Arizona (1966)
Warren Court also created a “right to privacy,” which it used to strike laws it felt were unjust —> Griswold v. Connecticut (1964)
Served 1953-1969
84
Mapp v. Ohio (1961)
4th and 5th Amendment protections apply against state governments as well as the federal government
Items taken as a result of an unlawful search or seizure may be excluded from evidence (the “exclusionary rule”)
85
Miranda v. Arizona (1966)
Police have a duty to inform suspects in custody of their right to remain silent and their right to counsel
Otherwise, the exclusionary rule applied to information provided during interrogation!
86
Griswold v. Connecticut (1964)
The Bill of Rights contains an “implied” right to privacy, covering birth control for married couples
87
The right to privacy
Have been used to overturn state laws restricting abortion
Has been used to strike laws prohibiting homosexual conduct
88
The right to privacy has been used to overturn state laws restricting abortion
Roe v. Wade (1973)
Planned Parenthood v. Casey (1992)
89
Roe v. Wade (1973)
Right to privacy includes “qualified” right to terminate pregnancy
90
Planned Parenthood v. Casey (1992)
States cannot put “undue burden” on abortion prior to viability
91
The “right to privacy” has been used to strike laws prohibiting homosexual conduct
Lawrence v. Texas (2003)
92
Lawrence v. Texas (2003)
Right to privacy protects consensual homosexual activity in the home
