The Supreme Court Civil Rights and Civil Liberties

The Supreme Court Civil Rights and Civil Liberties Wilson Chapters 5, 6, 16

The Supreme Court •

The Court’s power comes from “judicial review” based on the case of Marbury v Madison • Actually, only a few countries have judicial review including Australia, Canada, Germany & India • How to interpret the Constitution???? 1. Strict constructionist – judges are bound by the exact wording of the Constitution 2. Activist – judges should look at the underlying principles behind the Constitution * Judges can be either conservative or liberal

Quick history •

The Founding Fathers probably expected judicial review but also probably never thought about the huge role it would play in policy-making • Three eras of background: 1. National supremacy and slavery (1789-1861) - Madison and McCulloch, commerce issues, Dred Scott, federal government over states 2. Government and economy (1865-1936) - 14th Amendment and private property, role of business and government, Plessy and segregation

A bit more… 3. Government and liberty (1936-present) - shift of attention to personal liberty, Warren court very active, revival of state power

Structure of courts • Power found in Article III of Constitution • Constitutional courts, Legislative courts handle cases that the Supreme Court doesn’t • Judges are appointed and then approved by Senate • Senate more likely to approve judges picked from senators home state!! (Senatorial Courtesy) • The “litmus test” – test of ideological purity, in other words, does the judge poses the same political ideals as the president who appoints them…

All of the Courts 1. District courts – civil and criminal cases involving federal law 2. Courts of Appeal – hears appeals from federal courts and regulatory agencies (EPA) 3. Supreme Court – appeals from state and federal courts * Courts of appeal created in 1891 to relieve pressure on Supreme Court

Route to the Supreme Court • Court handles both original and appellate jurisdiction – straight to court or through appeals • Rule of four – at least 4 judges must agree to have Court hear case • Writ of certiorari – an order to a lower court to send up a record in a given case • Certificate – when lower courts request a ruling on a particular point of law only!

The Court at work 1. Oral arguments – lawyers emphasize the major points of their case 2. Briefs – written documents supporting one side of a case 3. Solicitor General – represents the US Government in cases where the government is involved (Nixon) 4. Conference – judges meet in secret to discuss case 5. Opinions – justices write opinions, there may also be concurring opinions and dissenting opinions – all may have influence on future cases!!!! (Precedent)

Rule of Precedent • Precedent of “free speech” 1. Schenk v US (1919) – he spoke against the draft in WWI – NOT protected speech because it created a “clear and present danger” to the recruiting of troops in war time! 2. Whitney v California (1927) – tried to create a Communist Labor Party, convicted by state based on “clear and present danger” test and upheld by the Supreme Court but one concurring opinion stated that “mere fear of ideas is not enough to stop them, ideas need to be discussed first”

Rule of Precedent continued 3. Dennis v United States (1951) – Dennis was a leader of the Communist Party and violated Smith Act – can’t advocate overthrowing the US gov – upheld and clarified “clear and present danger” by defining the “gravity of the evil” being said justifies violating free speech. 4. Yates v United States (1957) – Yates and other members of Communist Party BUT their conviction of violating Smith Act was overturned – merely stating an idea is different that taking action on the idea

Finally!! 5. Brandenburg v Ohio (1969) – Brandenburg, a KKK member, called for a rally and potential violence and was arrested BUT his conviction overturned and established “imminent lawless action” test – Was the speech calling for immediate violent action and did people respond immediately to it? No… Overturned Whitney and even changed “clear and present danger” based on 1) intent 2) imminence and 3) likelihood of action being taken…

Power of the Court • Power to make policy – by interpretation of the Constitution or by extending existing law • Has declared 160 laws unconstitutional and overturned 260 cases • Some support judicial activism to correct injustices of government, courts are last resort for some people • Some oppose judicial activism because judges lack expertise in situations, balancing priorities, and courts are not accountable because judges not elected…

Civil Liberties and Civil Rights • Civil liberties are our protections against government action • They are guaranteed by the Bill of Rights • Civil rights are positive acts taken by the government to make civil liberties a reality • Examples include Supreme Court cases and acts of Congress including the Civil Rights Act of 1964

Civil Liberties handout Civil Liberties • What protects Supreme Court justices from politics? What shields them? 1. serve life terms 2. appointed, not elected 3. don’t have to answer to anyone • How does a Supreme Court Justice make their decision? 1. the Constitution 2. other laws 3. precedent

Loose Constructionist I Implied language I Judicial Activism (uses their own views and beliefs – the Spirit of the Law)

Strict Constructionist I Expressed language I Judicial Restraint (the Letter of the Law)

• Example: What about our right to privacy? • No where in the Constitution does it say we have that right. It’s unwritten law – Common Law from England. “A man’s home is his castle. But if that’s true, how come the government can take that castle by means of eminent domain. • Our right to privacy is “implied”. It’s a penumbra, an attachment or implication.

• •

• •

Religion and the Government Government encourages religion – tax breaks, chaplains in the military Religion in life – swear on a Bible, oath of offices, ceremonies open with prayers, National Anthem and coins and money reference God Establishment Clause – separation of church and state Free Exercise Clause – free to believe what you want, but not act as you want

• The “Wall of Separation” is cloudy at best!! • School Prayer – Engle v. Vital said no prayers in school, even if voluntary. • Abington School District v. Schempp said no Bible reading • Wallace v. Jaffree said no moment of silence • But the court said that public schools cannot sponsor religious exercises, but doesn’t say that individuals can’t pray when and as they please, nor did the court say that students cannot study the Bible in a literary or historical context. And despite the court’s decisions, many schools still have organized prayer and Bible study in classrooms!! • According to the Equal Access Act of 1984 says that students can have religious groups as long as they meet the same terms as any other group on campus.

So what about aid to religious schools? • They must pass the “Lemon Test”. 1. the purpose of the aid must be secular, not religious 2. primary effect neither enhances or inhibits religion 3. avoids an excessive entanglement of government and religion Came from Lemon v. Kurtzman in which it didn’t allow “reimbursements” to private schools for salaries, books, etc. • The courts get around the religious issues: • Buses for religious schools based on safety issues • Interpreters for deaf kids for educational purposes • Loaning of equipment for educational purposes • Tax credits

• But religious issues are more than just in schools… • Seasonal displays have been removed but not if there are other nonreligious displays, or if it’s just a Christmas tree. • And how far can “free exercise” go??? • Well, in Reynolds v. US, the Court said that polygamy was illegal (endangers women). In Bunn v. North Carolina, using poisonous snakes was illegal in religious services (gee, imagine that??), can’t use drugs as part of religious ceremony, Oregon v. Smith. • Even “bizarre” religious ceremonies can be protected such as one in Florida that used animal sacrifices in their ceremonies.

Rights are relative… • Remember, your rights are not absolute • That means that each person’s rights are relative to the rights of every other person – the right to swing my fist ends at the other person’s nose • Example: we all have free speech but not absolute free speech • What of obscene language? • What about words that cause a person to commit a crime or desert the military? • What about libel or slander?

Let’s talk obscenity (porn?) • First of all, even the Supreme Court can’t define it • Justice said “I know what it looks like but can’t put it into words” • 1973 Miller v. California – stated that if the obscenity in question “appeals to the prurient interest” – in other words, elicits lust… • Also, if the work is “lacking serious literary, artistic, political or scientific value” • Local restrictions usually include zoning laws – to restrict location of adult entertainment

Crime and due process • Please remember the 14th Amendment – it deals with due process under the law • Exclusionary rule – evidence taken in violation of the Constitution cannot be used in court • Don’t forget role of Mapp and Miranda and Gideon • Terrorism has created a whole new set of issues regarding search and seizure • Also remember that evidence that is clearly visible is NOT protected by the exclusionary rule!!!

Speech and Press • Libel is written statement defaming another person • Slander is an oral statement against another person • Neither is protected except some libel and slander is worse than others… levels of speech • Public figures must show statements made with “actual malice” – reckless disregard for the truth • NO prior restraint on the press • Symbolic speech not protected if it violates a law (burning a draft card) but states can’t make certain types of symbolic speech illegal (flag burning)

Civil Rights • The text chapter really focuses on the civil rights of African-Americans and women • Sit-ins and freedom rides – went from the nonviolent movement to the “long, hot summers” of racial violence 1964-1968 • Five bills pass including the Civil Rights Bill of 1964 and Voting Rights Bill of 1965 and others • Has all helped lead to a dramatic rise in political participation among African-Americans and a change in “white elite opinion”

More Civil Rights… • When a group is being denied access to facilities, opportunities or services available to other groups it is a violation of their “civil rights” • Remember Brown v Board of Education • Mecklenburg case set guidelines for schools • Issue of busing… remember Boston from last year? • Rights of women and gender based discrimination including employment, military, Little League, abortion (Roe case and others) • Sexual harassment and a hostile environment

Other rights… • Affirmative action – also known as preferential hiring practices, to give less fortunate a chance • Bakke case – race can’t be part of hiring or admissions process • Gay rights – Court has overturned state rules regarding sexual activity between same sex couples • Gay marriage is the issue du jour – allowed in some states • Private groups, like the Boy Scouts, can still exclude homosexuals