Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
153 Cards in this Set
- Front
- Back
|
What is the purpose of the judicial branch?
|
to interpret the law
|
|
|
The judicial branch interprets ____ and ______
|
facts and the law
|
|
|
Structure of the judicial system - How many separate judicial systems are there.
|
Each state has one (50) + 1 federal system = 51
Within systems, there are subdivisions. |
|
|
the area over which a court has the authority to interpret the facts of the events that occur and to interpret the laws
|
jurisdiction
|
|
|
What type of jurisdiction only deals with federal crimes, such as killing a federal official, interstate murders; only deals with federal laws (interstate in nature); and the Constutitution (statutes, regulations)?
|
Federal Jurisdiction
|
|
|
opposite of federal jurisdiction
|
state jurisdiction
|
|
|
What type of jurisdiction only deals with matters of state law (safety, health, morality, general welfare)? -vast majority of lawsuits that deal with criminal crimes
|
State jurisdiction
|
|
|
State jurisdiction is defined by what amendment?
|
10th
|
|
|
a law that deals with a violation against the state (burden of proof is on the state)
|
criminal law
|
|
|
opposite of criminal law
|
civil law
|
|
|
conflicts between individuals
|
civil law - violations against society as a whole; normally involve millions or billions of dollars
|
|
|
What type of jurisdiction are courts that deal with any case that comes to them; this is the official part of the government whose job it is to solve everyday conflicts
|
general jurisdiction
|
|
|
opposite of general jurisdiction
|
limited jurisdiction
|
|
|
specialized courts have _____ jurisdiction (family court, drug court, criminal court)
|
limited
|
|
|
What type of jurisdiction establishes that most courts must take every issue that comes to them, including stupid ones?
|
mandatory jurisdiction
|
|
|
opposite of mandatory jurisdiction
|
discretionary jurisdiction
|
|
|
What was a way to try to get rid of stupid cases because they take up the court's time?
|
Tort reform
|
|
|
What type of jurisdiction uses summary judgment and establishes whether or not there's even a matter of law there?
|
Discretionary jurisdiction
|
|
|
What type of jurisdiction deals with cases that involve questions of facts?
|
original jurisdiction
|
|
|
opposite of original jurisdiction
|
appellate jurisdiction
|
|
|
What type of jurisdiction tries to establish that the law has failed you, is bad/illegal, the court wasn't run right? Arguments are based on laws, not facts.
|
Appellate jurisdiction
|
|
|
highest court in the u.s. judicial system
|
supreme court
|
|
|
structure of the federal system
|
1. supreme court
2. courts of appeal 3. district courts |
|
|
What is the only court the Constitution makes mention of?
|
Supreme Court
|
|
|
The problem with the Articles of Confederation was that until the Constitution was enacted, there was a _____ court, only _____ courts.
|
supreme, state
|
|
|
the court that rules the land
|
s. court
|
|
|
courts of appeal operate through ______.
|
circuits
|
|
|
How many circuits are there in the federal courts of appeal?
|
9
|
|
|
What federal courts exist in particular states, deals with issues within states, and do not cross state lines?
|
district courts
|
|
|
highest court in the state
|
courts of last resory
|
|
|
a court that most states have, but not all
|
intermediate appellate cort
|
|
|
lowest court of the state
|
trial/district court
|
|
|
let the decision stand
|
stare decisis
|
|
|
Courts of the past have decided this way, so courts of the future will too.
|
common law tradition
|
|
|
Look at diagram involving courts and jurisdictions.
|
note
|
|
|
What did Marbury vs. Madison establish?
|
judicial review
|
|
|
First documented case in human history in which political authority moves from one party to the opposition party
|
Election of 1800
|
|
|
Who were the two parties involved in the election of 1800?
|
Adams & Jefferson
|
|
|
Adams party
|
federalist
|
|
|
What did Adams do to make life more difficult for the democratic republicans coming in & to keep some federalists in power?
|
appointed a number of midnight judges that would hold positions even after adams leaves office
|
|
|
jefferson's party
|
democratic republicans, a.k.a. jeffersonians
|
|
|
In the case of Marbury vs. Madison, _____ was appointed as a midnight judge by _____ and confirmed by _____. After the inauguration comes and goes, _____ has yet to receive his _____. He goes to the Secretary of state (_____) to find out why. The secretary of state refuses to give him his commission. Marbury decides that he needs a _____ to get his commission. He goes back to the judicial act of 1789 where congress states that in cases involving writs of mandamus, the U.S. Supreme court shall have _____ jurisdiction. The case is taken by the Supreme court. The chief justice _____ is a _____. He knew that he would be ignored and though of as weak if he said Madison needed to give writ to Marbury (also would go against trying to make Supreme Court more powerful) If he didn't give Marbury his commission, he'd also be seen as weak. In _____ of the Constitution, every possible federal case is there. He ruled that the writ of mandamus case doesn't fit with _____ jurisdiction and that Congress violated the law of
|
William Marbury, John Adams, Senate, Marbury, commission, James Madison, writ of mandamus, original, John Marshall, federalist, Art. II, original, Constitution
|
|
|
an order from a court to some other part of government ordering them to do something
|
writ of mandamus
|
|
|
judge that will lead the court in answering
|
chief justice
|
|
|
one of the most influential S. Court justices of all time who radically altered the S. Court and turned it into a more prestigious institution
|
John Marshall
|
|
|
taking the actions of some other part of government, usually Congress, and seeing if they're consistent with the Constitution
|
judicial review
|
|
|
John Marshall ruled that Marbury's _____ but he's in the _____ because the law that told him to come here was not good law.
|
right, wrong
|
|
|
If Congress does something in opposition to the Constitution, it is _____ and _____.
|
null, void
|
|
|
Both judicial _____ and judicial _____ are used in judicial review
|
activism, restraint
|
|
|
judges in the court interpret cases the way they thing they should be (judges make the law)
|
judicial activism
|
|
|
courts bow down to decisions of Congress, Exec. Branch, States
|
judicial restraint
|
|
|
In cases that involve statutory interpretation _____ courts spend a lot of time on these (not _____ court)
|
federal, supreme
|
|
|
cases that involve the court interpreting what a statue means
|
statutory interpretation
|
|
|
executive agencies often find themselves in lawsuits because of how they're _____ and _____ statues
|
enforcing and interpreting
|
|
|
In federal courts, judges are _____, selected by the _____, and confirmed by _____ all the way down to _____judges)
|
appointed, president, senate, district
|
|
|
Judges of federal courts have _____ tenure.
|
lifetime
|
|
|
A criticism of lifetime tenure
|
judges are in no sense responsive to the wills of the people
|
|
|
the only way that judges can be impeached
|
if they've done something illegal
|
|
|
3 ways of staffing state benches
|
1. appointment- less common
2. election - elected by people, run for reelection (corruption 3. missouri plan (combine the two) - judges appointed by the governor, retain their seats by elections |
|
|
Rostow argued that their is something inherently _____ about judges who have lifetime tenures.
|
democratic
|
|
|
Rostow's Argument- Antidemocratic and counter majoritarian don't mean the same thing. The center of democracy is relying on _____.
|
elections
|
|
|
Rostow says that there has to be an inherent limit of what _____ can do. There has to be rights possessed by each _____, has to be more than just the rule of the _____.
|
majorities, individual, majority
|
|
|
Rostow- Democracy is based on the will of the _____ but has to respect the will of the _____.
|
masses, individuals
|
|
|
Rostow- frequently courts must rule against the will of the _____, for _____. They have to overturn something the _____ wanted because they wanted something that the Constitution couldn't do
|
majority, minority rights, majority
|
|
|
What keeps Congress from deviating too far away from the masses so they'll be reelected?
|
Democratic Process
|
|
|
The reason behind lifetime tenure is to enable the judge to rule on the _____ instead of _____
|
law, popular behavior
|
|
|
The _____ we put in power appoints judges and _____ who confirm the judges determine the _____ of the courts.
|
president, senators, composition
|
|
|
Congress can't lower the _____ of a supreme court judge.
|
salary
|
|
|
a label attached to courts frequently
|
tyranny
|
|
|
Federalist 78 (Hamilton) says that the judiciary is the _____ dangerous branch.
|
least
|
|
|
Each branch has a certain authority. At the same time, that's their _____ authorities. The Supreme Court can't _____ or _____ the laws.
|
only, write, enforce
|
|
|
Hamilton says that the judicial branch is the least dangerous because it has _____ not .
|
judgment, will
|
|
|
Hamilton Fed. 78 says that the supreme court can _____ the law, but do not have the power to make something happen (_____)
|
interpret, will
|
|
|
Hamilton Fed. 78 says that the j. branch lacks _____ and _____
|
purse, sword
|
|
|
purse in hamilton's comparison refers to what
|
legislative branch's monetary power
|
|
|
sword in hamilton's comparison refers to what
|
executive branch's enforcement power
|
|
|
a petition submitted to the court, loser of the lower court petitioning the s. court to take their case
|
writ of certiorari
|
|
|
In conference judges operate in _____.
|
Rule of 4 (4 judges have to agree to accept case)
|
|
|
2 kinds of briefs
|
party briefs, amicus curiae
|
|
|
parties to the case, attorney submits brief, argument why the court should rule in their favor
|
party briefs
|
|
|
briefs submitted by people who are not involved in the case trying to convince judges to rule a certain way
|
amicus curiae
|
|
|
Amicus curiae lets people try to _____ through _____ the S. Court.
|
lobby, argument
|
|
|
Oral arguments have a max of _____ hours, there are no _____ or _____. It's basically just arguing with the judges because most judges have already formed an opinion.
|
1, testimony, witnesses
|
|
|
In the second conference, the judges decide who wins by _____. Then they will write _____ which are published in a document called _____.
|
majority, opinions. U.S. reports
|
|
|
Steps of the Supreme Court Process
|
1. Writ of Certiorari
2. Conference "Rule of 4" (80-90) 3. Briefing (Party, Amicus Curiae) 4. Oral Arguments 5. Conference 6. Opinions (U.S. Report) |
|
|
The Constitution isn't self-evident and must be _____
|
interpreted
|
|
|
2 supreme court judges that served on the supreme court together for a number of years that had the highest disagreement rate in history
|
brennan, rehnquist
|
|
|
justice brennan's approach
|
developmentalism (living constitution)
|
|
|
rehnquists judicial philosophy was _____
|
strict construction
|
|
|
components of strict construction
|
plain meaning approach, original intent
|
|
|
Rehnquist relied more on what component of strict construction
|
original intent
|
|
|
when interpreting the constitution, rely on text of constitution and interpret that text by plain meaning
|
plain meaning approach
|
|
|
Whoever wrote this, what did they mean by it?
|
original intent
|
|
|
Brennan says that _____ on the part of the judge is always present
|
interpretation
|
|
|
Brennan accuses Rehnquist of imagining judges don't add their own _____
|
value
|
|
|
Brennan says that the idea of the Constitution is that there are some things that the _____ can't do
|
majority
|
|
|
look at constitution not as a set of specific rules, but embodying certain values/ things change over time, interpret for today's time
|
living constitution
|
|
|
Concept of legal positivism was more dominant in _____ ideology. It means that _____ and _____ are two separate things.
|
Rehnquist, law, morality
|
|
|
The Constitution is a document of _____ not _____ according to Rehnquist.
|
law, morality
|
|
|
Rehnquist says that right and wrong is determined by _____ and in general _____
|
legislatures, majorites
|
|
|
the freedoms and rights an individual possesses against the larger society
|
civil liberties
|
|
|
Even people through majoritarian politics can't do certain things to one another. Most are in the _____.
|
Bill of Rights
|
|
|
First amendment rights
|
freedom of press, petition, assembly, religion speech
|
|
|
Schenck vs. U.S. developed what test?
|
Clear and Present Danger Test
|
|
|
Schenck V. U.S. says that freedom of speech does not mean you are free to yell fire in a crowded theater because chaos would ensue. The man in this case was a anarchist who believes that the U.S. is engaging in an immoral unjustified _____. Through a series of publications, he says the U.S. should stay out of what would eventually be known as WWI. One publication encourages people who agree with him to _____.
|
war, ignore the draft
|
|
|
Democracy does allow people to express _____ to current policy (speech)
|
opposition
|
|
|
In Schenck vs. U.S., J. Holmes says that there is the freedom to express opposition to the direction in which U.S. policy is going. However, encouraging people to disobey the draft could lead to the military not being staffed with enough soldiers, so the _____ test was developed.
|
Clear and Present Danger
|
|
|
You have the right to speak but have to recognize that speech can be dangerous. Speech can be restricted when there is _____ and _____ danger by _____.
|
clear, present, context
|
|
|
In the modern world, both _____ and _____ are used to determine whether or not someone can have their speech restricted.
|
content, context
|
|
|
You can't have a ban on language based on _____. By and large, courts rely on _____.
|
content, context
|
|
|
Most courts agree that actions are still _____
|
speech. You can't ban the burning of the cross as a freedom of speech.
|
|
|
Types of speech that because of their context produce bad content and are prohibited:
|
libel, obscenity
|
|
|
defamation of a person's character or reputation, not protected by the 1st amendment
|
libel
|
|
|
what s deemed purely obscene, the government can ban if they want
|
obscenity
|
|
|
If something has _____ merit it is protected to express _____ attitudes.
|
artistic, political
|
|
|
2 clauses that protect the freedom of religion
|
free exercise and establishment
|
|
|
can't make laws/policies that prevent you from freely exercising the religion of your choice, prohibits the gov't from requiring or prohibiting any type of belief. However prohibition religions from using drugs is legitimate. The government is required to give a person the right not to work on their religious days (only get one)
|
free exercise
|
|
|
What clause prohibits the government from making official religions
|
establishment
|
|
|
What court case recognized that while a government can't endorse a religion, they frequently have to interact
|
lemon v. kurtzman
|
|
|
under lemon vs. kurtman, there are three components a policy must meet
|
1. secular purpose
2. neutral effect 3. avoid excessive entanglement |
|
|
most common for individuals to interact with their government
|
criminal law
|
|
|
Locke- important freedoms -> essential liberties
|
life, liberty property
|
|
|
Art I and Art IV limit what?
|
limits on ex post facto laws (can't make a crime after the fact), bills of attainder (can't circumvent the courts), habeas corpus (can't be arrested without a charge being brought against you
|
|
|
can only take away freedoms through a process that is fair
|
due process
|
|
|
When it comes to due, process what amendment strictly applies to the federal government?
|
5th
|
|
|
When it comes to due process, what amendment extends it to the states?
|
14th
|
|
|
You have to assume that people are _____ until proven _____
|
innocent, guilty
|
|
|
Burden of proof is placed upon the _____
|
state.. beyond all reasonable doubt
|
|
|
Our legal system is based on the recognition that we can never know the _____
|
actual guilt
|
|
|
What amendment establishes protections that deal with search & seizure?
|
4
|
|
|
Cops need a _____ to search people
|
warrant
|
|
|
What court case was based on illegal searches and seizures and established a nationwide requirement for due process?
|
Mapp v. Ohio
|
|
|
punish the state by leaving out evidence that was gathered illegally
|
exclusionary rule; Mapp v. Ohio
|
|
|
What is the significance of Mapp v. Ohio
|
It defines due process, illegally gathered elements can't be used in a trial
|
|
|
What amendment has to do with double jeopardy?
|
5th
|
|
|
can't be tried for the same crime twice
|
double jeopardy
|
|
|
What was the Miranda v. Arizona case
|
A kidnapper who was questioned without an attorney, didn't know that he didn't have to answer their questions or had the right to an attorney, so he confesses and is proven guilty. This violated due process. He was retried without a confession and still found guilty. It established that people have a right to be informed, not talk, and to an attorney.
|
|
|
What amendment guarantees a right to counsel?
|
6th
|
|
|
Gideon v. Wainwright said what?
|
In criminal matters regardless of severity, counsel myst be provided
|
|
|
What amendment protects against c & u punishment?
|
8th
|
|
|
civil war amendments
|
13, 14, 15
|
|
|
What did the 14th amendment establish?
|
due process & equal protection
|
|
|
What did Griswold v. Connecticut establish?
|
right to privacy
|
|
|
Griswold vs. Connecticut case
|
doctor with planned parenthood, advised married couple on birth control options...
|
|
|
Majority rules in G vs. C that privacy is a right implied
|
note
|
|
|
constitution casts certain shadows and within those we can find things implied
|
penumbral rights
|
|
|
Roe v. Wade
|
Texas, abortion, RIGHT TO PRIVACY
|
|
|
Lawrence v. Texas
|
sodomy laws, two gay men arrested for engaging in homosexual contact. requirement sex act private & consensual
|
|
|
requires that each state treat its citizens equally with its laws
|
equal protection clause
|
|
|
laws frequently must classify groups by race, gender, age, etc
|
classification
|
|
|
Plessy v. Ferguson
|
Louisiana - Trains will have black & white cars, developed separate but equal, if equal in nature
|
|
|
Brown v. board of education
|
challenge to topeka, ks dpt of education that provided for segregated schools, makes de jure (blacks and white to be treated differently) illegal, puts requirements on states for affirmatie actions
|
|
|
What did brown v. board of ed establish
|
affirmative actions
|
