Unit 1

Question 1

How do cases come to the Supreme Court?

Answer 1

1. request for review under Court’s original jurisdiction
2. by 3 appellate routes- appeals (local or state court declared a law unconstitutional), certification (lower court judges file writs of certiorari for advice or clarification), and petitions for writs of certiorari (litigants ask for a review of lower courts’ decisions)

Question 2

What falls under the original jurisdiction of the Supreme Court?

Answer 2

those that no other court has heard (authorized by Article 3 for cases involving foreign ambassadors or states)

the legislation also gives lower courts this authority, so SC usually only takes states vs states.

Question 3

What does the phrase “cannot take away life, liberty, and property without due process of law” mean?

Answer 3

This phrase does not suggest that these three things cannot be taken at all. Instead, it means that if life, liberty, or property are taken away by the government, it must be done procedurally. Ex. via proper legislative processes with representation elected democratically by the people.

Question 4

define civil liberties

Answer 4

government is the threat that could potentially infringe on your liberty
“negative liberty”- the government cannot do certain things (negating government power)
limitations on government power

Question 5

Define civil rights.

Answer 5

government obligation to protect or provide
threat from other people (powerful vs powerless- could be via the government)
a proactive government that uses power to protect people
“positive liberty”- you don’t have the liberty unless the government protects it

Question 6

rule of law

Answer 6

legal principles that govern us and the government itself

This is done via the judiciary branch, which has the responsibility of saying what the law is. The supreme court ensures that there are no conflicting decisions and that there are consistent applications of the rule of law and the constitution.

Question 7

How are courts held responsible?

Answer 7

Judges serve life tenures in the hopes that their opinions and decisions made will not be swayed by whichever party helped give them their position. They are in theory supposed to be independent of politics and popularity and answer only to the law. They are held responsible and maintain their legitimacy through their opinions, which justify their decision-making.

Question 8

What are some factors that make it more likely for the SC to take a case?

Answer 8

1. conflict in lower courts, attorneys, and political considerations
2. likey to take cases brought by the U.S. solicitor general
3. filing of amicus curiae (friend of the court) briefs on behalf of interest groups and third parties

Question 9

What are the three kinds of opinions?

Answer 9

majority
dissent (if the judge wants to write about why they disagree, they can. they can be rallying calls for the country or Congress)
concurring (agree with the outcome but disagree with the reasoning)

Question 10

What legal factors affect decision-making?

Answer 10

text (constitution, statutes, law, and language)
interpretation of text
history (context of words and what they meant at the time)
“living constitution” do the means evolve over time
state decisis (precedent)
common law tradition (judge-made law because other judges will conform to their opinions)
structure and principles of the Constitution Ex. federalism
comparison to what other courts have done
pragmatic considerations

Question 11

What are the two types of stare decisis?

Answer 11

horizontal- SC follows its own precedents, similar legal cases apply the same legal principle (analogical reasoning)

vertical- lower courts have to follow the precedent set by higher courts, these courts have to figure out what the SC precedent means

Question 12

What political factors affect decision-making?

Answer 12

1. judicial attitudes-partisan/policy preferences
2. judicial role- what justices should do regarding the text, precedent, and deference to other branches
3. strategic factors- have to get 4 other justices to agree
4. public opinion- amicus curiae briefs signal public opinion trends and views, especially of interest groups

Question 13

Was the Bill of Rights nationalized to the states following the 14th amendment?

Answer 13

No, it was not. Selective incorporation was introduced into the 20th century, where the SC informed states they must abide by select guarantees contained in the first 8 amendments of the federal Constitution. This would be decided on a case-by-case basis. Twining v New Jersey gives a more explicit definition of selective incorporation and due process of law.

Question 14

facts of Barron v Baltimore (1833)

Answer 14

This was the first case the SC considered in nationalizing the Bill of Rights.

Baltimore was repairing its roads, which resulted in a build-up of sediment in harbors. Baron claimed the city of Baltimore owned him money because this sediment build-up caused him to lose money. His claim was based on the takings clause of the 5th amendment, which he claimed applied to the federal government AND states. Baron won at first in the lower courts, but Baltimore appealed to the state SC and won. Baron appealed to the Supreme Court.

Question 15

legal question of Barron v Baltimore

Answer 15

Does the takings clause of the 5th amendment apply to states?

Does the Bill of Rights apply to the states?

Question 16

answer to Barron v Baltimore

Answer 16

NO
Justice Marshall wrote that the Bill of Rights applies to the federal government but not the states since they have their own established constitution. Guarantees against state violations must come from the state laws and constitution. The history of the Bill of Rights comes from anti-federalists being afraid of the potential threats and abuses by the federal government, so it was not created to check the states.

The plaintiff argued that the Bill of Rights was intended to apply to the states, but in Article 1 section 10, the states are not regarded the same as the federal government, and further Section 9, Congressional powers are different with some similarities.

Marshall also states that if the people of Maryland wanted a takings clause, it would be far easier to pass it in the state constitution than through the federal constitution.

Question 17

What were the 3 clauses of Section 1 of the 14th Amendment?

Answer 17

1. privileges and immunities clause
2. due process clause
3. equal protection clause

Question 18

Slaughterhouse Cases (1873)

Answer 18

The Slaughterhouse cases were about economic rights. Lousiana butchers were required to use a state slaughterhouse (to prevent water contamination). A group of local butchers sued Louisiana in a state court, arguing that the law violated the “privileges and immunities” clause of the newly enacted Fourteenth Amendment. The butchers claimed that the state unconstitutionally deprived them of the “privilege” of operating slaughterhouse companies and thus prevented them from earning a living. They were really throwing all of the clauses into the case to see which would stick but had a heavier focus on the privileges and immunities clause.

1. privileges and immunities clause- SC rejected, basically out of existence because they saw how broad this could be and had a narrow focus of only forbidding states from violating privileges of American citizenship, not state citizenship. (equal treatment across states)
2. equal protection clause- rejected because this clause was really focused on inequality of race (later expanded to include gender and disability)
3. due process- becomes the focus of efforts to expand protections from state governments

Question 19

Hurtado v California facts

Answer 19

Hurtado’s wife was cheating on him with a man. He tried sending her away, but she continued. He first beats the guy up and gets out on bail. After that he kills him. Hurtado goes to court and the state submit evidence to a judge who decided that he would be going to trial. Normally, states have a grand jury decide if a defendant should go to trial, but the California state constitution of 1979 has the provision allowing judges to decide. After, Hurtado was found guilty and sentenced to death. He appealed to the SC based on his 5th amendment right to a grand jury was violated via the due process clause of the 14th amendment.

Question 20

Legal question of Hurtado v California

Answer 20

Does the right to a grand jury from the 5th amendment apply to states?

Question 21

answer to Hurtado v California

Answer 21

NO Justice Matthews states that the right to a grand jury would not be mentioned twice (under the 5th and 14th amendment). We cannot interpret without a clear reason that would make an amendment unnecessary. Would mentioning it twice make it unnecessary?

Mathews also claims that due process of law is not about specific rights but about the procedures that have to be followed to adopt laws by the legislature. In these circumstances, due process was not violated because this rule was passed in their constitution and was not made arbitrarily.

Question 22

dissent to Hurtado v California

Answer 22

Justice Harlan advocated for total incorporation and said that the due process of law was broad enough to protect life, liberty, and property in states. He believed that if having a grand jury was not fundamental to due process, it would not be guaranteed in the 5th amendment. Therefore, anything within the bill of rights is a fair presumption to be fundamental.

Question 23

Palko v Connecticut Story

Answer 23

Frank Palka robbed a store and shot/killed 2 police officers. Palka was arrested in New York and confessed to the crime. He was tried for first-degree murder but the judge did not admit his confession. Without this evidence, the jury could not find him guilty of first-degree murder, so he was found guilty of second-degree murder and received a life sentence. The state appealed stating that the confession should be admitted, which reversed the judge’s decision and ordered a new trial. Palka claimed he had the 5th amendment protection from double jeopardy but was tried again and found guilty of 1st-degree murder. He was sentenced to death and appealed to the SC.

Question 24

Palko v Connecticut legal question

Answer 24

Does the 5th amendment right to protection from double jeopardy apply to states?

Question 25

Palko v Connecticut answer

Answer 25

NO Palko’s broad thesis was that protections under the BoR for the federal government apply to the states via the 14th amendment, which is not true. Certain amendments are implicit to liberty. This incorporation is not arbitrary but based on the definition of liberty. There is already a precedent of some incorporated laws, using this dividing line, which does not help Palko’s case. Does the appellant’s case of double jeopardy violate “fundamental principles of liberty or justice?”- NO, so it is not implied by the due process clause.

In an imagined civilized society, abolishing the right to trial by jury and immunity from prosecution would not violate the foundation of justice.

The state also does not want to “wear him down with multiple trials.” They simply want to have a trial “free from error,” so this kind of “double jeopardy” is not a violation.

Question 26

What was the significance of Palko v Connecticut?

Answer 26

It is one example of selective incorporation on a case-by-case basis based on whether a right was fundamental to liberty and justice. This made it fact-dependent. The idea of a clause being incorporated by a due process having to be fundamental was mentioned in Hurtado v California, which opened the door to this being used in the future. Twining v New Jersey more explicitly mentions this idea.

Question 27

Duncan v Louisiana story

Answer 27

A 19 year old black man, Duncan, saw his two cousins on the side of the road next to four boys. He was concerned about this situation since his cousins had transferred to a school with a history of racial incidents caused by the integration of schools. Duncan pulled over and told them to get in his car. Duncan was accused of hitting Landry in this confrontation. The principal of the school called 911 and alleged that he saw Duncan hitting them. The police questioned him and let him go. Later, he was charged with cruelty to juveniles. This charge would have been dismissed because it only applies to individuals supervising minors. Landry’s family asked to rearrest Duncan on simple battery, which does not receive a jury trial because the punishment would not be hard labor or death. Its maximum sentence is 2 years and prison or a fine. The judge found him guilty, and Duncan appealed to the SC for violating his 6th amendment right to trial by jury.

Question 28

legal question of Duncan v Louisiana

Answer 28

Does the 6th amendment protection of the right to trial by jury apply to states?

Question 29

answer to Duncan v Lousiana

Answer 29

YES, the right to trial by jury is a fundamental right essential to a fair trial in all criminal cases via the 14th amendment due process clause. History shows the strong preservation of trial by jury in England and the colonists, who resented royal intervention in trial by jury.

The precedent of Maxwell v Dow and Palko v Connecticut do not deal with the dispensing of the jury entirely. Maxwell was about trying a defendant for a noncapital offense with a jury of fewer than 12 people, and Palko was about the grand jury. Its mention of not having a trial by jury not theoretically affecting justice is dicta (discussion). This has no real holding.

Lousiana tries to use the slippery slope that deciding that people have a right to trial by jury would call into question every case done without one. This is not the case. The use of the trial is not what makes it fair but having a choice for it does.

Lousiana also says that this rule should not apply because the arrest was a misdemeanor, and the BoR protects the right to a jury for a felony. The max charge for the misdemeanor is two years, which is the felony charge for most states. The potential for having this charge makes the right to trial by jury fundamental.

Question 30

Black and Douglass concurring Duncan v Louisiana

Answer 30

Full incorporation of the BoR via the 14th amendment would be the case, but they are willing to accept selective incorporation over none. They doubt the framers would have wanted judges to have so much power in deciding selective incorporation.

Question 31

Fortas concurring Duncan v Louisiana

Answer 31

Justice Fortas was concerned with protecting federalism. He believed that we should not force states to follow the Constitution exactly, but basic fairness should be ensured. Due process should be called for but still allow differences among states to support federalism.

Question 32

Harlan and Stewart dissenting Duncan v Lousiana

Answer 32

We do not need to constrain states to federal standards. Due process only calls for fairness, which this trial was since Duncan had counsel and could cross-examine. Due process of law is only for fair and impartial procedures. It does not make sense of law being fundamental while others are not. The only basis for it being fundamental is it being old and praised and found in the BoR, which is circular reasoning. There is also no evidence that a trial by jury makes a trial fairer.