Con Law Mid Term

• 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)

• 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

• 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.

• 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.

• S.C. reviews laws and acts to determine if they are constitutional.
• Not mentioned in Constitution
• First tested in Marbury v Madison

• 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

• 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.

• 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

• 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.

• 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.

• 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.

• 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

• 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.

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.

• 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.

• 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.

• 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.

• 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.

• 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.

• 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.

• 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.

• 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

• 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.

• 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