Con Law Mid Term

  1. 3 Routes for a case to  get to supreme Court?
    • Original Jurisdiction- Case is being heard for very first time (also some kinds of cases that have appellate jurisdiction or the right to an appeal)
    • Certification- federal judges can ask SCOTUS questions looking for clarification.
    • Writ of ceritorari (to become informed)(cert)- Parties may petition to get case heard (most common way cases get to Court)
  2. Cert Conference and strategies?
    • Justices vote to grant or deny cert
    • Need 4 Justices to vote yes to take case (Justices can vote to join 3)
    • Strategies:
    • Defensive denials- voting no because you do not believe you have the votes in your favor even if you think the case should be decided by Court.
    • Aggressive Grants- granting cert even if you do not believe the case belongs before Court because you believe your side will win
  3. Article III of the Constitution?
    • Establishes the Supreme Court and other Federal courts as Congress sees fit.
    • Seeks to establish independent judiciary
    • -life tenure (can be impeached)
    • -compensation clause (pay can never be cut)
    • Section 2 of Art III describes the workings of lower courts that did not yet exist.
  4. Judiciary Act of 1789?
    • Establishes framework of federal judiciary first laid out in sec 2 of Art III a pyramid with the S.C. at the top the circuit courts in the middle acting as the first line of appeals and the district courts at the bottom.
    • It reiterates the S.C. original jurisdiction
    • empowers them to issue writ of Mandamus
    • Expands S.C. jurisdiction to hear cases from state courts that involve federal issues.
  5. Judicial Review?
    • S.C. reviews laws and acts to determine if they are constitutional.
    • Not mentioned in Constitution
    • First tested in Marbury v Madison
  6. Constraints on Judicial Power?
    • Jurisdiction- does the court have legal authority
    • Justiciability- a case is appropriate for judicial resolution (cases and controversies)
    • Not Justiciable:
    • -Advisory opinions
    • -collusion (both sides want same result)
    • -Mootness
    • -Ripeness
    • -Standing to Sue
  7. Incorporation of the Bill of Rights?
    • Incorporation is process by which Bill of Rights is made applicable to state gov
    • Barron v Baltimore in 1833- decides Bill of Rights only applies to Federal gov 
    • Incorporation begins with 14th Amendment (1868)and the Due process clause.
    • Selective rights have been advanced one right at a time from 1879- late 60's basically incorporating the entire bill of rights.
  8. First interpretation of free exercise clause?
    • Belief/ action Dichotomy first established in Reynolds v United States 1879 (Mormons and polygamy)
    • Cantwell v Conneticut 1940 (certification laws for solicitation aimed at Jehovahs witness) Court upheld belief/action dichotomy and added Valid secular policy test.
    • Warren court adds least restrictive test
  9. Sherbert- Yoder test
    • New interpretation of Free exercise Clause gives more weight to religious freedom. 
    • Least restrictive manner and it matters how applied not just written.
    • Sherbert v Verner- Court says if there is a compelling state interest the gov can restrict religous freedoms but must do it in least restrictive way.
    • Wisconsin v Yoder- court says distinction between how law is written and how law is applied matters.
  10. The Smith test
    • Human Resources of Oregon v. Smith 1990- defendants used peyote for religion
    • Court has tilted right Scalia's opinion rejects Sherbert-Yoder test gives gov the right to prohibit religious action.
  11. basis of Establishment of religion and 3 interpretations?
    • 1st amendment establishment clause
    • 3 interpretations
    • -separationist-solid wall
    • -accomodationist1- "favoring wall" only prohibited from favoring one religion over another.
    • accomodationist2- "establishment wall" only thing gov cant do is establish a state or national religion.
  12. Establishment precedent before Lemon?
    • Bradfield v Roberts 1899- S.C. allows for federal funds to be spent at a religious hospital on care for indigent.
    • Everson v Board of Ed 1947- S.C. rules that it is ok to pay for transportation to private schools. Gov doesn't have to be an adversary of religion.
    • -S.C. uses this case to incorporate the establishment clause.
    • pre-Lemon test:
    • must have secular purpose and the effect must neither inhibit or advance religion
  13. The Lemon test
    • Lemon v. Kurtzman 1971- lemon sued state super of schools Kurtzman to declare unconstitutional law that allowed Kurtzman to purchase secular educational services for nonpublic schools.
    • Early v. Dicenso- challenged R.I law taht supplemented teacher pay at nonpublic shools
    • Lemon test
    • -legitimate secular purpose
    • -neither advance or inhibit religion
    • -no excessive entanglment between religion and gov
    • Zellman v. Harris 2002- adds the distinction between government giving money to a religious organization and giving it to individuals who give it to a religious organization.
  14. Right to Privacy?
    Zellman v. Harris 2002- creates the distinction between government giving money to a religious organization and giving it to individuals who give it to a religious organization.
  15. Right to Privacy in reproductive matters?
    • Griswold v. Conneticut 1965- created a constitutional right to privacy and deemed it fundamental.
    • Opinion asserts penumbras formed by emanations from 1,3,4,5,and 9th amendments.
    • in other words clauses in those amendments create zones or privacy that are untouchable by gov
    • Roe v. Wade 1973- establishes that abortion is not absolute,
    • "person" = post-natal,
    • establishes state interest in life of potential human life
    • creates trimester framework:
    • -1st doctors decision
    • -2nd state can protect life of mother
    • -3rd state can protect potential human life after medical viability.
  16. Right to privacy rolled back in reproductive rights?
    • Planned Parenthood v. Casey 1992- gets rid of trimester plan 
    • O'Connor pushes undue burden test before viability
    • if a law presents no undue burden its good
    • if a law presents an undue burden must use strict scrutiny to determine its constitutionality.
    • After viability a states compelling interest in potential life kicks in.
  17. Freedom of speech, assembly and association as it pertains to gay sex?
    • Bowers v. Hardwick 1986- says gay sodomy not protected privacy.
    • Lawerence v. Texas 2003- Gay men arrested for sodomy. Court uses due process clause of 14th amendment plus constitutional concept of privacy to overturn verdict.
    • Could have used the equal protection clause of 14th amendment might have been stronger argument.
  18. Freedom of speech as it pertains to conduct?
    • Texas v. Johnson 1989- Johnson burns american flag after protest march Court finds.
    • Conduct can be speech if "imbued by communication"
    • -is there a message
    • -is it likely it will be understood.
  19. Legal standards for governing free speech?
    • Clear and present danger test- are the words used in circumstances and are meant to create a danger
    • Bad tendency test- do words have tendency to bring about something evil
    • Preferred freedoms- those freedoms that are specifically mentioned in constitution are afforded more weight and government must be much more careful in trying to regulate them.
    • Absolutism- 1st amendment rights are absolute (never used)
    • Ad Hoc balancing- case by case basis gov interest and individuals rights are weighed
    • Clear and probable danger- whether the gravity of the evil discounted by improbability justifies action by gov.
  20. Fighting words and free speech?
    • Chaplinsky v New Hampshire 1942- Jehovahs witness is selling literature some of the crowd take offense attack him police arrive and handcuff him he curses at police and is arrested for using offensive words.
    • Court says that words that are likely to cause a fight can be forbidden.
  21. Restrictions on free speech?
    • Criminal speech- giving military secrets
    • less protected speech- obscenity and libel
    • Time, place and manner restrictions- must be narrowly constructed, not unconstitutionally vague, and must be content neutral.
  22. Free Association?
    • Boy Scouts of America v. Dale 2000- Court ruled that groups may discriminate  in terms of membership if
    • -Expressive association
    • -membership affects advocacy of beliefs
    • -are beliefs sincere
  23. Free Press?
    • Near v. Minnesota 1931- state prohibits near from publishing. court says that they can not do that but that there are times when prior restraint are ok.
    • NY times v. U.S. 1971- Times gets portion of pentagon papers, Nixon administration seeks injunction. Court gave per curiam that said the gov could not have injunction.
  24. Obscenity?
    • Hicklin test- British standard for obscenity
    • -evaluated from perspective of anyone who might see it (children)
    • -no mandate to consider work as whole
    • -no mandate to consider social value of work
    • Roth v. new york
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Con Law Mid Term
Con Law Mid Term