POSC 422 Notes for the whole semester
POSC 422 Notes for the whole semester POSC 422
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This 0 page Bundle was uploaded by Nick Richmond on Friday January 29, 2016. The Bundle belongs to POSC 422 at Towson University taught by Jonathan Hensley in Fall 2015. Since its upload, it has received 35 views. For similar materials see POSC 422: Supreme Court in Political Science at Towson University.
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Date Created: 01/29/16
Richmond POSC 422 Notes 91 Judicial Review Why is the Supreme Court good 0 Stupid people competence 0 Checks and Balances 0 Final say of interpretation Judicial Supremacy 0 The finality of the Supreme Court s interpretation of broad constitutional principles for resolving major political controversies Departmentalism 0 Each branch has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action 0 Each branch has equally the right to decide for itself what is its duty under the Constitution Textualism 0 Theory of statutory interpretation holding that a statutes ordinary meaning should govern its interpretation as opposed to inquiries into nontextual sources as the intention of the legislature in passing the law the problem it was intended to remedy or substantive questions of the justice and rectitude of the law 0 Article III I The judicial Power shall extend to all Cases in Law and Equity arising under this Constitution the Laws of the United States and Treaties made or which shall be made under their Authority I In all cases affecting Ambassadors other public Ministers and Consuls and those in which a State shall be Party the Supreme Court shall have original jurisdiction In all the other Cases before mentioned the supreme Court shall have appellate jurisdiction 0 Article VI Why would public opinion matter to Supreme Court judges 0 To make sure the people understand what is happening 0 If the court does unpopular behavior when deciding cases then people may get mad or upset and have issues 0 Stability O Tyranny of majority 0 Counter maj oritarian Difficulty I A perceived problem with judicial review or legislative laws As the terms suggests some oppose or see a problem with the judicial branch s ability to invalidate overrule or countermand laws that re ect the will of the majority Reasons to oppose Judicial Review 0 Courts don t act on the tyranny of majority 0 Can t always count on the courts to interpret the Constitution for the will of the people 0 Cant assume courts will save us from bad politics Supreme Court Cases 93 Richmond Justices will agree on the judgment of specific decisions May disagree on party affiliation AgreeDisagree of interpretation AgreeDisagree on policy position will not show others what there position is 0000 Independence of Judiciary 0 Makes own decisions hoping that Congress or President doesn t retaliate Protection of judicial independence 0 Salary of judges cant be changed 225k 0 Life term 0 Appointment Constitution created the Supreme Court and specifically gives Congress the power to create any other court if necessary 0 Congress can also destroy courts that they find unnecessary Congress will not destroy courts because 0 Party affiliation 0 Time to get through congress is extensive because they can never agree on anything 1930 Roosevelt and his administration tried to regulate and make the Supreme Court justices less than 12 Once they would reach the age of 70 Roosevelt would be able to add anotherreplace the old guy Judicial Activism judges are not impartial as they should be they still base their decisions off of personal beliefs or party affiliation This is not what you want from judges Judicial independence does not activate itself 0 Need a norm for judicial independence 0 Concept that the judiciary needs to be kept away from the other branches of government Courts should not be subject to improper in uence from the other branches of government or from private or partisan interests Check and Balances of Judicial Independence O Impeachment if a judge is impeached and found guilt of an impeachable offense then they can be removed from office 0 Judicial Code of Conduct When judges take office they agree to abide by a set of ethical principles established by the Judicial Conference of the United States 0 Oath I I do solemnly swear or affirm that I will administer justice without respect to persons and do equal right to the poor and to the rich and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as Judge under the Constitution and laws of the United States So help me God Judicial retention elections have worked in states across America they will work for America 0 Provide the people themselves with a constitutional remedy to the problem of judicial activism and the means for throwing off judicial tyrants 0 Periodic judicial retention elections 0 Every justice beginning with the second national election after his or her appointment will answer the American people and the states in a retention election every eight years Richmond I Justices deemed unfit for retention by both a majority of the American people as a whole and of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the court Supreme Court History 98 0 o o o o o o o 0 910 Original Supreme Court saw no cases within the first year of its existence No case made it from the lower courts to the higher courts because the supreme court is the highest appellate court Now decides about 80 cases a year First year the judges went to lower courts and sat as trial judges to help decide those decisions Federalist 78 judiciary branch is the weakest of the three John Marshall preferred federal government over state governments The Judiciary Act of 1789 represented a compromise between those who wanted the federal courts to exercise the full jurisdiction allowed under the Constitution and those who opposed any lower federal courts or proposed restricting them to admiralty jurisdiction Like Marshall he was not overly wrapped up in legal learning for its own sake and realized that constitutional law required vision and common sense as well as careful legal analysis Due process is the legal requirement that the state must respect all legal rights that are owed to a person I Variety of safeguards for due process I Substantive due process some laws may be so unfair or unjust that they are a deprivation of due process even if they have fair procedures I Court began aggressively applying the doctrine of selective incorporation applying provisions of the Bills of Rights to state actions 0 Near v Minnesota courts must honor freedom of the press 0 Powell v Alabama they must honor freedom of the press 0 Weeks v US court adopted the exclusionary rules in cases of federal police action I Guinn v US courts struck down the southern practice of using grandfather clauses to prevent African Americans from voting Appointing and affirming Supreme Court Justices 0 Why do presidents pick the justices I Party affiliation I Share the same philosophical or ideology values I Share legal philosophies I Demographic of the person I What will make the best balance to the new group I Senate confirmation I Reputation of the appointed I Rather more typically a President seeks the best person from among a list of those who fulfill certain of these other political criteria and of course who share a president s vision of the nation and the Court 915 917 922 Richmond I Age I Likely to support legislation the President passed I Personal relationships with nominees I Judicial Temperament essentially has to do with a personality that is evenhanded unbiased impartial courteous yet firm and dedicated to a process not a result 0 Speed of President Nominees I Presidents try to move quickly to nominate but in all circumstances I President may already have a short list in which he already has ideas is the time ever comes I A president may be accused of charging ahead with a nominee without having first adequately consulted with the Senate or without having taken the time to necessary to determine who really would make the best nominee I Speed can be affected by when a seat on the Court is vacated Why new appointees offer fewer surprises O Nominee s backgrounds these day include I Work for the executive branch in Washington I Substantial service on a federal appeals court It s the friends factor I Conservatives with established social networks in Washington are less likely than newcomers to be swayed by the city s relatively liberal political culture Executive branch service may also yield informal information about a candidate s political reliability gleaned from candid talk at the office or over lunch The Republican groups do have a court focus on affirmative action abortion school prayer gun rights and property rights Presidents worry I Only care about competence 0 Cannot be surprised by a justice s decisions I Only care about one set of issue I Presidents who have an ideological agenda almost always get what they want on the issues they care about The Supreme Court confirmation process has been degraded into a partisan political fight in which senators of each side line up with a few odd defections with their own party McConnell Standard I Overly deferential to the president I Does not give senators enough leeway to consider ideology and the courts overall balance I Near automatic opposition to the other party s nominee I The true measure of a statesman may well be the ability to rise above partisan political considerations to objectively pass upon another aspiring human being Class was cancelled Richmond Farganis and Wedeking No Hints No Forecasts No Previews An Empirical Analysis of Supreme Court Nominee Candor from Harlan to Kagan O O O 0 Giving an empirical answer to the question by examining all senators and nominees since 1955 Question of fact questions that seek basic factual information about a topic or issue 1 Factual questions about a nominee s legal education 2 Factual questions about a nominees personal biography or family 3 Factual questions about a nominees nonlegal employment history 4 Factual questions about past cases as well as factual questions about the nominees writings speeches previous testimony and other issues that did not fit into the first 3 main categories Question of View seek nominees opinions thoughts assessments interpretations or predictions 1 Past supreme court rulings or a lower court ruling Hypothetical cases Approach to judging and constitutional interpretation Powers of Congress and the President Federalism and State s rights Judicial Power and administration Peace security law and order Individual rights and liberties 9 Other topics not identified above Candor of nominee response I FullyVery Forthcoming Nominee answered the question that was asked without any qualification or evasion I Qualified Nominee indicated some reason for not answering the question fully but then gave at least a partial response to the question I Not Forthcoming Nominee chose not to answer the question at all I Interruption Nominee was interrupted by a senator before she had a chance to give a partial response I NonAnswer Nominee gave a no substantive response WNQP PP P The Nine by Toobin O O O O O The Supreme Court did not usually veer too far from public opinion in its decisions Could have been because of the sweet justices that we have Originalism was desired in judicial decision making Toobin paints not a conservative revolution but a period of intractable moderation The real power he argues belonged to supreme swingvoter Sandra Day O Connor who decided important cases with what Toobin see as an almost primal attunement to a middle of the road public consensus I O Connor is moderate Looks at how judges look at the cases Stare Decisis Justice Kennedy is sometimes prickly often mysterious intellectually incoherent and displays naivete and grandiosity Justice Scalia has displayed juvenile petulance and is a mixture of elan and erudition Richmond Justice Souter has a quirky personality many eccentricities and the habits of a gentleman from another century Justice Thomas is the friendliest warmest but full of rage He is ideologically isolated strategically marginal and is embarrassingly silent on the bench Justice Breyer has a plodding antirhetorical style which results in gnarled prose Justice Alito is most negative and during his confirmation hearings was charmless evasive and unpersuasive Spoke about all the Justices from the assignment Spoke more about the Justices Roberts Court Refers to the Supreme Court of the US since 2005 Under the leadership of Justice Roberts Generally more conservative than the preceding Rehnquist Court Roberts Court had issued major rulings on I Gun control I Affirmative action I Campaign finance regulation I Abortion I Capital Punishment I Gay Rights I Criminal sentencing Corporations businesses owned by stockholders who can sell their stock publicly They have an existence different from their owners legally o o o 0 924 929 101 0 o o o 0 108 Lets them act as individual characters Free Exercise of Religion O 0000 Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof Individuals are free to choose their own religion or no religion Freedom with respect to religious practice is not absolute Laws with secular purpose may burden religious freedom But sometimes the Supreme Court accommodations religious practice even if it means allowing an exemption to generally applicable law Sherbert v Verner 1963 I Sherbert refused to work on Saturday because her religion Seventh Day Adventist observed Saturday as the Sabbath I She failed to find other employment because of her unavaibility for Saturday work I Her employer fired her and she filed for unemployment benefits from the state of South Carolina I Unemployment agency denied her claim because of her unavailibitly for Saturday work Richmond State law prohibited awarding benefits to anyone who failed without good cause to accept suitable work when offered Sherbert says the law is unconstitutional Does the disqualification for benefits burden Sherbert s free exercise rights 0 Yes she is being forced to choose between following her religion and forfeiting benefits she is otherwise entitled to or abiding one of her religious beliefs to accept the benefits Does South Carolina have a compelling state interest that justifies the burden on Sherbert s rights 0 States claim protecting against fraudulent claimants But nothing in the record to support this 0 Even if this was a real danger state would have to show that no alternative means of regulation would prevent such abuses without infringing First Amendment rights 0 The Sherbert Test 1 Has the government burdened an individuals free exercise of religion 2 If so is there a compelling state interest that justifies the burden 3 Is the law or government action narrowly tailored to achieve that compelling state interest 0 The state must show that there is no alternative policy that would avoid the burden and still achieve the compelling state interest 0 Employment Division v Smith 1990 The Retreat from the Sherbert Test Smith and Black fired from jobs as drug rehab counselors because they took peyote during religious ceremonies They applied to state for unemployment compensation but state denied them because their discharge was for workrelated misconduct Oregon Supreme Court ruled in favor of Smith and Black applying the Sherbert test Oregon appealed to the US Supreme Court Different from Sherbert and similar cases involving unemployment claims because they did not involve illegal conduct here the use of peyote was illegal under Oregon law The law making peyote illegal is not directed at their religious practice Prohibition on peyote for nonreligious reasons is unconstitutional If burdening the exercise of religion is not the object of the law but merely the incidental effect of a generally applicable and otherwise valid law the Free Exercise clause has not been violated Applying compelling interest test in fields like free speech and disparate treatment based on race produces equality of treatment and free ow of speech Applied in the free exercise context compelling interest allows a private right to ignore generally applicable laws Justice O Connor s solution Applying Sherbert test but state has a compelling interest 0 Religious Freedom Restoration Act City of Boerne v Flores 1997 Richmond RFRA passed by Congress in 1993 Provided that Sherbert Test applies when courts balance religious freedom claims against governmental interests in otherwise generally applicable laws City of Boerne zoning ordinances included historic preservation provision City Council refused to grant church a building permit Congressional Enforcement Power 14th Amendment Section 5 The Congress shall have power to enforce by appropriate legislation the provisions of this article This includes ability to enforce the guarantees that States shall not deprive any person of life liberty or property without due process of law nor deny any person equal protection of the laws Congress has the power to enforce the 14th Amendment Congress doesn t have the power to define the substance of the 14th amendment Changing the definition of a right or what counts as a constitutional violation is defining the substance of the 14th amendment not just enforcing it Allowing this type of change would allow Congress to alter the meaning of the Constitution with no principle to limit their power However this case only held RFRA to be unconstitutional as applied to state and local governments Did not decided whether it could apply to federal government RFRA amended in 2003 to only include the federal Government Gonzales v 0 Centro Espirita Beneficente Uniao do Vegetal 2006 upheld it as applied to federal government 0 Gonzales involved federal seizure of 30 gallon of ayahuasca tea to a New Mexico branch of a Brazilianbased church 0 If free exercise substantially burdened legislation must serve a compelling governmental interest and constitute the least restrictive means of serving 0 RFRA definition any exercise of religion where or not compelled by or central to a system of religious belief construed in favor of a broad protection of religious exercise to the maximum extent permitted by the terms of this chapter and the Constitution 0 The Gonzales opinion found that the government was unable to show a compelling governmental interest in barring religious usage of ayahuasca when applying strict scrutiny under RFRA O Burwell v Hobby Lobby Green family owns and operates Hobby Lobby Stores Family has organized the business around the principles of the Christian faith and has explicitly expressed the desire to run the company according to Biblical precepts 0 One belief is the use of contraception is immoral Under the Patient Protection and Affordable Care Act ACA employment based group health care plans must provide centain types of preventative case 0 Such as FDAapproved contraceptive methods Richmond I Green Family argues that the requirement that the employmentbased group health care plan cover contraception violated the Free Exercise clause of the 1st amendment and the Religious Freedom Restoration Act RFRA I Does RFRA allow a forprofit company to deny its employees health coverage of contraception to which the employees would otherwise be entitled based on the religious objections of the company s owners I Yes The Court held that Congress intended for the RFRA to be read as applying to corporations since they are composed of individuals who use them to achieve desired ends I How do corporations exercise religion 0 A law that makes the practice of religious beliefs more expensive in the context of business activities is a burden of religion 0 Government concedes nonprofit corporations protected under RFRA and Court says there s no principled difference between forprofit and nonprofit corporations that matters here 1015 Supreme Court Clerks 0 The notion is that that clerks will become Supreme Court Justices further down the line in life but its not as easy 0 Career matters once you are finished being the clerk you need to establish yourself in the politics 0 Anyone who finishes a Supreme Court Clerkship you will have a good life because good law firms or federal government may hire you O Clerks could become Lower Court Judges later in life 0 Qualities for clerks I Leadership I Intelligent I Accomplished The Court takes their ideas very seriously they make no listen to the Solicitor General Solicitor general job 0 Represent the government and the Supreme Court 0 Which lower court cases will be appealed I Will look at the merits of the case and extinguish the best cases to take to appeal 0 Solicitor General will file an amicus brief at the cert stage Perry Book Deciding to Decide 0 Based the research from terms from 19761980 I Because there were no membership changes I Natural Court every time the court membership doesn t change it is known as this I Interviewing formal clerks in that time and also Justices from the bench at that time Agenda Setting 0 Strong political ideology behind the agenda 0 What is on the docket for today what is there to do today 0 Agenda Setting is important because a topic that is not on the agenda will not be addressed Richmond I Setting the agenda meaning you have more political power 0 Climate Issues have been ignored off of the Agenda I You either can make issues be addressed or you can keep them away from being addressed BottomUp TopDown Perspective 0 Supreme Court agenda setting is a BottomUp Process I Lower courts have to file a writ of cert I Goes from the lower courts to the higher courts bottom up I Something to thing about the BottomUp Process 0 Why do people actually write the writ of cert 0 Ordinary Litigation you want to win you case because it will help you further Its almost every law suit 0 Political Litigation litigants are trying to in uence private property I Court is more interest in Ordinary than Political Attorneys who represent litigants 0 Small group of lawyers based in DC specialize in representing clients before the Supreme Court 0 Used to be whoever represented you in lower courts would represent you in the Supreme Court 0 Change occurred in 1980 s where more specialized firms are hiring lawyers that specialized in the Supreme Court 0 Very small court of lawyers that focus on Supreme Court litigation 0 Most arguments are made by lawyers who just have that 0 Almost anyone can get licensed to practice in front of the Supreme Court Interest Groups 0 Amicus Briefs friend of the court I File at the cert stage trying to get the court to hear the case I File at the merit stage trying to get the court to try to vote a certain way 0 Lobby to get certain cases to the courts or Congress 1022 Oral Argument DC v Heller 1027 Supreme Court Decision Making and Legal Interpretation 0 Decision Making I For every decision there is who wins and who loses I Then there is the rule of law that is decides the case I Policy Making is involved in decision making as well I Can remand the case which means send the case back down to the lower court for them to decide upon 0 Oral Argument each justice hears a case or so per week orally Justices will decide their views on the case and then separate into Majority and minority If chief justice is in the majority then he will tell who needs to write the argument I If he is not in the not in the majority then the head justice will choose 0 How to decide the outcome of a case I Is the court using the law to decide cases Or are they driven by politics or ideology Richmond I Legal Factors 0 Text of past documents 0 Precedent 0 Various theories of interpretation 0 Originalism I Original Meaning what those who drafted the provision intended I Original Intent What would a normal speaker of English have understood the words and mean them when they were enacted O Textualism I Original Meaning look to meaning of words at time constitution or amendment was ratified I Contemporary uses contemporary meanings not historical ones 0 Doctrinalism I Resolve contemporary disputes by looking to past precedents I Focuses on what other government officials most judges have done in the past 0 Structuralism I Relies on general principles that explain structure of Constitution and relationships between institutions I Separation of Powers I Democracy I Federalism 0 PragmatismPrudentialism I Weighs costs and benefits I If more than one plausible interpretation pick the one with the best consequences I Case by case basis I Avoids grand pronouncement of principle 0 Aspirationalism I Interprets the Constitution in light of the fundamental principles of Justice underlying the Constitution I Values 0 Ideology O Attitudinal Model Justices are only choosing their decision based on their attitude towards the issue 0 Legal Values 0 Partisanship Element I Strategic Factors long term thinking of the justices to further them in legal goals or particular policy goals I Group Dynamics how the group of justices relate and how they can come to their decision 1029 Continuing from last class Richmond 0 Public opinion and how it can effect the Supreme Court I Strategic Behavior Hypothesis 0 Public Opinion are a direct relationship with case outcomes SCOTUS I Justices can form a trust with the public I Attitudinal Change 0 Direct relationship between Public opinion and the Supreme Court only has some correlation with each other 0 Social forces drag both public opinion and supreme Court I When public opinion is outspoken by the public then the Justices will look into that issue I Salience designate the importance of issues particularly for voters I Policy mood percent of liberal decisions each term is a dependent variable effect Policy mood is the independent variable cause I How to formalize their hypothesis 0 As the policy mood becomes more liberal or conservative the Supreme Court will issue a great percentage of liberal or conservative opinions I What can make a justice more liberal or conservative O Unemployment I Higher unemployment affects liberal policy mood I Lower unemployment affects conservative policy mood O The economy 0 In ation O Level of inequalitycrime rate I GINI coefficient 113 Bush v Gore 0 Calendar of Events leading up I November 7th 2000 Election takes place Florida is initially called for Gore Then networks uncalled Florida 0 Networks then call state for Bush I November 8th 0 Florida Division of Elections reports Bush wins by 1784 votes 0 There is an automatic machine recount I November 10th 0 Automatic recount is completed 0 Bush leads by 327 votes I November 14th 0 Deadline for counties to certify returns I November 15th 0 Secretary of State Harris rejected request for late filing Richmond I November 18th 0 Secretary of State certifies Bush is the winner I December 8th 0 Florida Supreme Court orders recount I December 9th 0 US Supreme Court stayinjunction recount I December 11th 0 Oral Argument in Supreme Court I December 12th 0 Supreme Court rules in Bush favor 0 Safe harbor deadline 0 Federal law that says if there is a controversy to elections 0 Is a provision of a statute or a regulation that specifies that certain conduct will be deemed not to violate a given rule It is usually found in connection with a vaguer overall standard 0 Gore team argued Florida had a state wide standard for counting votes I Equal Protection Clause violation 0 Bush team argued that the way Florida counted votes was legal and okay 1110 scotusblogStatpack O httpwwwscotusblogcom20l506finalstatpackforoctoberterm2014 King v Burwell 0 Did the IRS permissibly create a regulation that extended the tax credits the Affordable Care Act authorized to federal exchanges as well as those created by the states I Yes 63 decision 1117 Hollow Hope BOOK 0 Abortion and Women s Rights 0 Implementationsconditions for courts to produce social reform I Condition 1 Other actors offer positive incentives to induce compliance I Condition 2 Other actors impose costs to induce compliance I Condition 3 Courts may effectively produce significant social reform when judicial decisions can be implemented by the market 0 I Condition 4 Courts may effectively produce significant social reform by providing leverage or a shield cover or excuse for persons crucial to implementation who are willing to act 0 Roe v Wade 0 Planned Parenthood of Pennsylvania v Casey O Griswold v Connecticut Gender Inequality 0 Sex discrimination claims I Overall attempt has been successful however there are limits to what the court can do Richmond 0 Same Sex Marriage I Limitations from the Supreme Court 0 Pages 402403 in the Hollow Hope book 0 Goodrich decision 0 Defense of Marriage Act 0 Only heterosexuals can be married
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