Study Guide- Exam #2

The study guide uses action verbs to stimulate the student to think about each question. While you are not assigned these questions, you should have knowledge of how you would answer each question.

The Court System-Judiciary

Understand the Constitutional powers given to Judicial Branch under Article III.

What was established by the Judiciary Act 1789 and why?
Outline the Federal Court system and hierarchy.

Federal Court System

Constitutional or Article III Courts
- Supreme Court
- Circuit Court
- District Court

Compare and contrast Original v. Appellate Jurisdiction.
Outline the structure and role of the District Courts.
Outline the structure and role of the Circuit Courts.
- What is en banc?
- Why is the DC Circuit the second most powerful court in the country?
Define Court Packing and why a president would implement such a system.
Describe the current Supreme Court and its jurisdiction
Supreme Court of the United States
- Eight Associate Justices and a Chief Justice
Original Jurisdiction (Article III)

- Two or more states
- Case involving the United States and a State
- Foreign Ambassadors or diplomats

- A state and a citizen of another state (state initiated)
Appellate Jurisdiction
- Circuit Courts
- State Supreme Courts

- Court of Military Appeals

Outline the Process of Judicial Selection.
Define Senatorial Courtesy.
What are the factors that influence judicial appointment?
Outline the process for a case to reach the Supreme Court
Hearing Cases- “The First Monday in October”

Original Jurisdiction
Appellate Jurisdiction
1. “Exhaust all lower courts.”
2. Appeals are filed
  1. Reviewed by law clerks
  2. Influence by Solicitor General

Rule of Four

Appeal or Writ of certiorari- to be informed
1. In Forma pauperis- In the form of a pauper.

Outline the process for hearing cases.
Oral Arguments and Decisions- “Oyez, Oyez, Oyez”

Legal Briefs are filed in advance
Justices have read arguments and have prepared questions
Half hour arguments per side.
Justices retire to conference and vote
Judicial Opinions
1. Majority- Winning side
2. Dissenting- legal argument in opposition

Concurring- agreement in end result, but using different reasoning

Plurality-more than three
Per curiam- unsigned opinion

Size of ruling 9-0, 5-4 and impact
Discuss the factors that influence judicial rulings
Compare and contrast judicial activism v. judicial restraint.
Outline the role of the Solicitor General
Solicitor General
- The President’s lawyer in the Supreme Court
- The Tenth Justice of the Supreme Court
- Serves “At the pleasure of the President”
- Originally a non-political position
- “A small specialized law firm within the Justice Department”
- Handles all cases involving the United States in the Supreme Court
- Advises the Supreme Court on which cases to hear
- Gets over 80% of its cases into Supreme Court
- Files Amicus Curiae Briefs on behalf of United States
  - “Friend of the Court” A legal argument to influence the outcome of a case.
  - A lobbying tool that places the U.S. government into many cases.
- Political Role: Solicitor General is often “forced” to take a political position on a case rather than a legal one.

Civil Liberties

Compare and Contrast Civil Rights and Civil Liberties.
What was the intent of the inclusion of the Bill of Rights in the Constitution?
How did the Ninth and Tenth Amendments “enhance” the Bill of Rights?
Examine how Barron v. Baltimore (1833) removed the Bill of Rights from the states and how the 14th amendment returned them to the states.
Define the concept of Due Process, as well as Substantive Due Process and Procedural Due Process.
Define the concept of Incorporation. How are the Bill of Rights brought into the states?
Define and contrast Total Incorporation and Selective Incorporation. How did Gitlow v. New York (1925) and Palko v. Connecticut (1937) impact these definitions? What is the Palko Test?
The cases below bring each right into the states.
First Amendment: Religion-Define the Establishment Clause and the Free Exercise Clause.
Establishment Clause: Lemon v. Kurtzman (1971). How does the Lemon Test define an Establishment of Religion?
- The law must be secular in its legislative intent
- The law must neither prohibit nor impair a religion
- The law must not have excessive governmental entanglement.
Free Exercise Clause: What outlines actions or activities that are protected as religious activities?
First Amendment: Speech-
- Schenk v. U.S. (1919)- Establishes the Clear and Present Danger
- Brandenburg v. Ohio (1969) Clear and Present Danger plus Imminent Rule (Direct incitement)
First Amendment: Press-
- Near v. Minnesota (1931) No prior restraint
- New York Times v. U.S. (1971) Pentagon Papers

First Amendment: Symbolic Speech-
- U S. v. O'Brien. (1968) Draft Card Burning- O'Brien Test Court may limit speech if:
  1. Regulation is within the constitutional power of the United States
  2. If it furthers an important government interest

If the government interest in unrelated to the suppression of expression

If the incidental restriction on alleged 1st is no greater than is essential to the furtherance of the interest.

- Tinker v. Des Moines (1969) students wearing Black Armbands during Vietnam War
- Texas v. Johnson (1989) American Flag burning is protected speech

First Amendment: Hate Speech-
First Amendment: Libel and Slander-
- New York Times v. Sullivan (1964) origin of the Actual Malice Rule
First Amendment: Fighting Words-
- Chaplinsky v. New Hampshire (1942) non protection- “by there very utterance inflict injury or tend to incite an immediate breach of the peace.”
First Amendment: Obscenity-

- Miller v. California (1973)- A piece may be illegal if…

1. 1. An average person applying contemporary standards of the particular community, would find the work, taken as a whole, appeals to a particular prurient (characterized by or creating an interest in sex) interest in sex (patently offensive interests- over and beyond normal)
  2. The work depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable law or authoritatively construed.
  3. The work, taken as a whole, lack serious literary, artistic, political, or scientific value

First Amendment: Association
Second Amendment: Right to Bare Arms
- DC v. Heller (2008)- the Second amendment prohibits government from banning guns. (DC is a federal jurisdiction).
- McDonald v. Chicago (2010) the Second amendment is incorporated into the states. Application of Heller to the states.
Fourth and Fifth Amendment
1. Outline the provisions of a legal search.
2. Escobedo v. Illinois (1964) Right to counsel during interrogation
3. Miranda v. Arizona (1966) Legal rights must be read to suspect
4. Weeks v. US (1914) illegally seized evidence cannot be used at trial
5. Mapp v. Ohio (1961) Exclusionary Rule

Sixth Amendment
- Gideon v. Wainwright (1963) Right to an attorney

Eighth Amendment
1. Furman v. Georgia (1972) Death penalty halted-racial bias
2. Gregg v. Georgia (1976) Death penalty reinstated

Right to Privacy
1. How is the Right to Privacy constructed?
2. Griswold v. Connecticut (1965) –creates right to privacy
3. Roe v. Wade (1972) Women’s right to abortion defined as a privacy issue.

Civil Rights

How does the 14^th Amendment define Citizenship? Why was the Citizenship clause included in the document?
Why does the 14^th Amendment include the Equal Protection Clause?
- Equal Protection Clause: No State Shall... deny to any person within its jurisdiction the equal protection of the laws. This was included by the Framers to guarantee the equality of protection of the laws given to blacks and whites. Equality with respect to civil rights meant equal status in the legal relations of the private economy, coupled with the right to enforce that equal status. Equality with respect to political rights was more controversial at the at the outset, with many supporters of equal civil rights opposed to equal voting rights for African Americans. This discrepancy was resolved by the passage of the 15th Amendment.
What is a suspect classification?
What is a disparate impact" on racial minorities?
Under what circumstances can the government use racial terms in the construction of a law?
- Suspect Classification: The Constitution only prohibits discrimination that is invidious, arbitrary, or irrational. The validity of the government action depends largely on the criterion on which the discrimination is based. All other classifications are suspect. The Court has declared that Race and Religion are suspect classes, thus any law that discriminates upon these classes will be deemed unconstitutional. The Court has yet to elevate gender to the level of suspect classification.
Compare and contrast the three levels of scrutiny: Strict, Intermediate and Rational Basis. Who hold the burden of proof?
Compare and Contrast De facto and De jure discrimination.
Understand the evolution of Civil Rights:
1. 13^th Amendment
  - Black Codes
  - Civil Rights Act 1866

14^th Amendment
15^th Amendment
- Jim Crow Laws
Yick Wo v. Hopkins, (1886), is the first case where the United States Supreme Court ruled that a law that is race-neutral on its face, but is administered in a prejudicial manner, is an infringement of the Equal Protection Clause in the Fourteenth Amendment to the S. Constitution.
Plessy v. Ferguson (1896) –Separate but Equal
Brown v. Board of Education (1954) Ends Segregation
Brown v. Board of Education II (1955) –Desegregate- All Deliberate Speed
Regents of the University of California v. Bakke (1978) –Reverse Discrimination

Understand the elements and intent of the following acts of legislation:
- Civil Rights Act of 1964
- Voting Rights Act of 1965
- Title IX of The Education Amendments Act of 1972
- Americans with Disabilities Act-1990
Exam#2.Review.pdf