(Note: these learning modules encompass the actual class lectures, and are designed for those students who have to miss class through no fault of their own, and also as a refresher for all students. Bold print in the notes are what the professor writes on the board.)

LEARNING MODULE: WEEK 12, Judiciary

Well, the federal judiciary is mentioned last in our federal constitution, after the Congress and the President, so the Founders expected it to be the least powerful branch. Plus, I have not published in this area, so I am not an expert. I advise any of you interested in the legal system to take anything that Whit Waide teaches, since he is the expert and he has helped a lot of students to get into law school. We have little time remaining in this class, since I am typically behind at this point, plus a lot of class time will be taken up by the class simulation and the book reports. So let me just hit some of the high points.

The constitution only explicitly established one U.S. Supreme Court, so Congress by law established federal district (trial) courts and federal circuit courts of appeal (for appeals from the trial courts). Some examples of how our federal judicial system works can be drawn from cases in Mississippi:

About a decade ago there were two college students at MSU, an Arab-American male who loved an African American female. They were idealistic, got on the internet, and decided that they wanted to support the cause of "freedom fighters" (terrorists) in Syria. The gal began corresponding on the internet with someone whom she thought was a Syrian terrorist. The kids bought plane tickets to Turkey with the thought that they would drive into Syria, they arrived at our county Golden Triangle Airport (which she had called some po-dunk airport that would never stop them), and were promptly arrested by FBI agents. The terrorist she met on the internet was actually an FBI agent posing as a terrorist. There is a federal law that outlaws any “attempt” to help a terrorist organization, and by buying the plane tickets and showing up at the airport, they were charged with violating this law. The case was tried in one of our federal district courts (our state has 2, northern and southern districts), the kids pled guilty, and got about 10 years in federal prison. Do you think that they were treated fairly? They didn’t really do anything, they attempted to do something.

Ten drunken white men in Jackson were cruising around one evening, making racist comments. They saw an African American man in the parking lot of a motel, and proceeded to rob, beat, and kill him. They were convicted of various crimes, which included one person for murder under our state criminal law. They were also convicted in federal district court of violating the federal hate crime law. The judge in the case was Carlton Reeves, a Mississippi African American appointed by President Obama, who was unanimously confirmed by the Senate and supported by both of our state’s U.S. Senators.

Before the U.S. Supreme Court legalized same-sex marriages in all states, federal district court judge Reeves had taken the lead and struck down Mississippi’s prohibition of same-sex marriages. How was this state law a federal issue, ending up in federal court? Well, the 14^th amendment to the federal constitution (one of the post-Civil War amendments) says that states cannot deny any person of equal protection of the law, so the federal courts today hold that since marriage is a fundamental human right, nobody can be denied legal recognition of their marriage.

Two other cases are kind of interesting. Mississippi passed a religious freedom state law that gives private businesses the right to refuse to serve people if such service would violate their religious beliefs, and the law specifically says that the key religious belief is an owner’s belief that marriage is between a man and a woman. A liberal interest group sued to try to strike down that state law, and a federal district judge rejected the lawsuit, arguing that the interest group had not demonstrated that anyone had been affected by that state law. Courts do not make laws; they simply decide specific cases that involve someone who has suffered damages. In another case, an African American sued Mississippi state government because Mississippi still had a state flag that had part of the Confederate flag in it; Judge Reeves rejected his lawsuit, holding that he had not demonstrated any harm done to him. (Since then, Mississippi has changed its flag into an attractive inclusive one.)

So, really, the judicial system is fascinating, but very complex and very detailed. If you want to be a successful lawyer, plan on spending your life doing a lot of detailed reading of often complex and boring material. We have many alumni who have been quite successful, however. I recently had 7 students in top law schools (or who just graduated), an increasing number are women and African Americans. They worked hard, did their homework in college. One has a full scholarship (and more); he got a summer internship in D.C. before law school, did legal research for an interest group, worked hard. Another just graduated from law school, and had a job lined up a year ago, and his starting salary equals that of two of our professors (with a combined six decades of experience). Many students go into public interest law, fighting for racial justice, the rights of immigrants, and other historically disadvantaged groups.

Well, it is obvious that the U.S. Supreme court is pretty powerful nowadays, much more so than many of the Founders expected. What has helped make them more powerful? Well, the justices themselves exerted their power, starting with the Federalist-dominated John Marshall court in the early 1800s, and enhanced by the 1960s Earl Warren court.

The John Marshall court is more historic, so I leave that to your history classes, but I do want to mention 4 of its important cases: 1) Marbury v. Madison, which established the U.S. Supreme Court's ability to strike down federal laws as unconstitutional; they held that a federal law could not expand the Supreme Court’s original jurisdiction noted in the federal constitution by giving them the power to issue a writ of mandamus; 2) Fletcher v. Peck, established the Court's ability to strike down state laws as violating the federal constitution; they held that a state legislature had violated the federal constitution’s protection of the right of contracts by repealing a grant of land to a land company; 3) McCulloch v. Maryland used the clause: “Congress may pass all laws necessary and proper” to carry out the powers explicitly granted to it by the constitution. They therefore upheld Congress’ establishment of a national bank, since the constitution gave Congress explicit power to coin and borrow money, and make appropriations. 4) Gibbons v. Ogden interpreted the Congress’ power to regulate interstate commence in a broad fashion to include transportation, striking down a state regulation of a steamboat company operating on an interstate waterway. The same philosophy was relied on in the 1960s to uphold the constitutionality of the 1964 Civil Rights Act outlawing racial discrimination in public accommodations. When a local restaurant argued that it only operated within a single state, the Court held that it was still engaged in interstate commerce (receiving food, utensils, even patrons from other states).

The Earl Warren court of the 1950s and 1960s is more relevant to today’s issues, so we will talk about it in depth, and you should know the following cases for the final exam. The lifetime appointments of federal judges is quite interesting, and gives them considerable freedom to do what they think is right. Republican President Eisenhower had appointed Earl Warren as Chief Justice, as Warren was a Republican, had been the California state attorney general (indeed, he supported the internment of Japanese-Americans during the war) and then a popular governor. But then the Warren Court rendered some decisions that were liberal for the times, and Ike got upset. (His staff probably should have studied up on Warren more carefully; I learned that Warren was a pretty progressive governor of California, and indeed in one of his elections he actually won the nomination of both the Republican and the Democratic Parties.) Those decisions were:

1) Brown v. Board of Education. NAACP plaintiffs sued several public school districts for requiring racial segregation by law; African American children were often forced to go outside of their neighborhoods to schools that were inferior to the white schools in facilities and teaching. The Court unanimously finally held that racial segregation in the public schools by law (the state legislatures were nearly all white) violated the 14^th amendment equal protection clause, and ordered the school districts to desegregate “with all deliberate speed.” Many southern school districts dragged their feet, and district court judges (such as in Mississippi) who had been supported by segregationist Senators from those states often went along with the delaying tactics. Finally, in 1969 the Supreme Court ordered those school districts to immediately desegregate. This decision was supported nationally, even by Eisenhower, was supported by African Americans in the South but opposed by most southern whites.

2) Reapportionment decisions. State legislatures traditionally decided how to draw up their U.S. House and state legislative district lines however they wanted. As time went on and many people moved from rural to urban areas, some state legislatures refused to change the district lines, so that a rural legislative district might have only half as many people as an urban district. The Warren Court finally held that the Court would get into this “political issue”, and they ordered the states to draw district lines so that there was population equality for each district. This was based on the equal protection clause of the 14^th amendment. They applied this one person-one vote decision to the U.S. House, and both chambers of the state legislatures (some states tried to argue that their state senates were like the U.S. Senate and gave equal representation to each county, but the court rejected that argument, holding that the counties were merely the creation of the states, not independent entities that had come together to form the state). Anyone today disagree with that decision? Population equality, does that include illegal/undocumented immigrants? Do you think it should? This case and the remaining ones were all in the 1960s.

3) School prayer decisions. States and local school districts historically did whatever they wanted in this area, with some school districts requiring the saying of a prayer in the public schools, and some making sure that it was a non-denominational prayer. Under the 1^st amendment “Congress may not establish a religion” clause, the Court has held that government (which includes local public-school districts) cannot permit public school officials (teachers, coaches) to say any prayer or hold religious ceremonies during class. Religious groups can have access to school facilities after school hours for voluntary activities, as long as other groups also have access to facilities. Did your schools follow these rules, or did you have some kind of religious recognition at your public school?

4) In Mapp v. Ohio, the U.S. Supreme Court enforced the 4^th amendment prohibition against unreasonable search and seizures on the state and local governments. They used the exclusionary rule, evidence obtained illegally could not be used in a court of law to convict someone. So the pornographic material that was found in Mapp’s house could not be used to convict her of possessing pornography (back when that was illegal), since police did not have a proper search warrant.

5) In Gideon v. Wainwright, the 6^th amendment right to counsel was also extended to the states. Not only in federal cases, but now in state cases, defendants who couldn’t afford an attorney had to be provided one by the state. It pertained to serious crimes, for which imprisonment could result. This process of extending the federal bill of rights to the states is called procedural due process, and these cases also relied on the 14^th amendment which states that no state can deny any person of life, liberty, or property without due process of law. (Interesting that the federal constitution uses the word, any person; it doesn’t specify citizen. Does this mean that undocumented/illegal immigrants have some protection under our federal constitution? How much protection?)

6) Escobedo v. Illinois. A murder suspect was taken to the stationhouse, and the cops played good cop-bad cop during the interrogation and got the person to confess. At trial, the defendant finally got a lawyer, who told him that he shouldn’t have confessed. The Supreme Court held that the state should have provided him counsel while he was being interrogated, since the police investigation had moved from mere investigation towards accusation. So, this confession was thrown out. This was based on the 6^th amendment, right of counsel.

7) Miranda v. Arizona. A suspect was accused of rape, he didn’t take the initiative to ask for counsel, the cops interrogated him, and got a confession. The Supreme Court held that the state should have taken the initiative to offer him counsel before they interrogated him, as he probably didn’t know that he had that right. Therefore, police departments henceforth were told to immediately inform arrested suspects that they had the right to remain silent, anything they said could be used in court to convict them, that they had the right of counsel, and if they could not afford one, the court would appoint one; did they want counsel immediately; if they wanted to talk, they could stop talking at any time. So suspects had to be read their rights, and they had to understand them. So if a suspect did not understand English, the state would find someone who spoke their language.

These Warren Court rights of the accused decisions were controversial in the 1960s, as conservatives argued that most criminal laws were the responsibility of state governments, and that federalism dictated that the federal government should defer to the states. Conservatives also feared that these decisions would make it harder for the state to convict people, and that the crime rate would increase. They deferred to the police, thinking that the local cop “knows who the real criminal is.” Do you agree with these conservatives? Have you or your friends had any encounters with the police that you thought were unfair? Anyway, the conservatives were so upset that in Congress in 1968 they held up filling the vacancy caused by Earl Warren’s retirement, and one other judge ended up retiring, and that was too close to the presidential election to fill. So newly elected President Richard Nixon had two seats to fill. He came up with two law-and-order judges from Minnesota, dubbed the Minnesota Twins. Nixon also appointed two other judges, conservative Rehnquist from Arizona, and Virginian Powell. Interestingly enough, they did not reverse the Warren Court decisions, but just refrained from taking them further. However, the Warren Burger (new Chief Justice from Minnesota) court did come up with two fairly liberal decisions themselves. They were:

Roe v. Wade. The year after Nixon got reelected, the Supreme Court struck down state anti-abortion laws (only New York and California at that time had legal abortions). The Court held that the 14^th amendment, no state may deprive a person of liberty without due process clause included the right of a woman’s liberty and privacy to choose whether to have an abortion, as long as the fetus was not viable. Viability, ability to independently live outside of the womb, was generally seen as occurring after 6 months of pregnancy. So states could not outlaw abortion in the first six months. After that decision, conservative southern states kept trying to chip away at that right, and the federal courts kept striking down most of those state laws. Most recently, after President Trump was successful in appointing three anti-abortion justices to the Supreme Court, the Court reversed its Roe decision, and sent the whole issue of abortion back to the states. That case involved a Mississippi law outlawing abortion after 15 weeks, but after the Court decided to hear the case the state's Republican Attorney General, Lynn Fitch, argued that the Court should go further and completely reverse Roe (permitting an earlier Mississippi state law to restrict abortion right after conception). Though the court voted 6-3 to uphold the latest Mississippi law, Chief Justice Roberts (in the majority) said that the Court had gone too far in completely reversing Roe, and even Justice Kavanaugh (also in the majority) suggested that Congress and not just the states can regulate abortion. What do you all think about this issue of abortion?

Capital Punishment. States historically used the death penalty whenever they wished, such as in rape convictions, not just in murder cases. The Supreme Court in a series of decisions in the 1970s found that state practices were so arbitrary and irrational (different defendants in different parts of a state could get very different punishments) that their state laws regarding capital punishment violated the 14^th amendment taking of life, due process clause. The Court upheld a two-stage process, whereby in murder cases a court would first find the defendant guilty or innocent, and if guilty there would be a second stage whereby the punishment would be determined. In that second stage, the court would consider the character of the defendant and the circumstances of the crime. The Court in another case held that the death penalty violated the 8^th amendment ban on cruel and unusual punishment in the case of rape, as they felt that was an excessive punishment. So today, we know that the death penalty is permitted only in the case of first-degree murder. The state of Louisiana disagreed with the Supreme Court, and they kept their state law permitting the death penalty for rape on the books, but didn’t use it until someone was convicted of raping a baby (and trying to cover up his crime); this 2008 case on a 5-4 vote upheld precedent and struck down the death penalty for rape of a baby. (But notice that it was a 5-4 decision, so a state may want to keep such an “unconstitutional” law on the books and wait for a change in the composition of the Court.)

Well, we’re pretty much out of time, but the courts and the legal process are fascinating, and it’s all so detailed, precise, and complicated that you can see why being a lawyer is a very demanding and important job. Check out my listing of major court decisions since 1960 for more recent Supreme Court cases and how each justice voted on each of them.

A last note. Why was the Kavanaugh nomination so bitter with opponents filling the Senate galleries and even yelling out while the Senators were voting? Historically, we’ve viewed judges as being impartial and neutral as they rendered decisions on narrow cases. There is the constitution, the federal law, and the individual court case. Period. But judges are human beings, and they have their own interpretation of the constitution, and their own ideas about what justice is. Conservatives blasted the Earl Warren Court, but previous Supreme Courts had their own biases. After all, a southern Democratic dominated Court in the 1850s had rendered the Dred Scott decision, which held that slaves were property and that Congress could not outlaw slavery in the western territories; public outrage over that decision fueled the rise of a new party, the Republican Party of Lincoln. A conservative Republican dominated court in the 1930s declared some of FDR’s laws unconstitutional, FDR tried to pack the court, and one judge switched his votes and began to uphold their constitutionality (this was called the switch in time that saved nine!). Unlike Eisenhower’s “mistake” in picking Earl Warren, Presidents beginning with Bill Clinton (and the GOP 1994 takeover of Congress) have more carefully researched their court picks. When Trump had to fill his second of ultimately three vacancies, the Court had 4 judges appointed by Republican Presidents, and 4 judges appointed by Democratic Presidents. On key issues that I studied, each of those Republican appointed judges had voted in a conservative direction at least 90% of the time. Each of the Democratic appointed judges had voted in a liberal direction at least 92% of the time. So, a lot of political observers viewed Kavanaugh (and probably anyone appointed by Republican Trump) as the deciding vote on many important cases. In Kavanaugh’s first two years as a judge, he appeared as a more neutral judge, but with the addition of Amy Coney Barrett to the court, the 2022 term of the Court saw 5 of the 6 major court cases decided in a conservative direction with the 3 liberal judges appointed by Democratic Presidents losing on all 5. The most recent 2023 court term saw a more evenly-divided court with conservatives winning 3 major cases and liberals 2; the court struck down affirmative action in college admissions, permitted a website business to not serve gays because of her free speech rights and religious beliefs, and struck down Biden's effort to repudiate billions in college student loans without Congressional approval; however, the court also prevented a partisan gerrymander by a GOP-controlled legislature that sought to avoid the state court system, and required a state to redraw its U.S. House district lines to maximize the election of blacks. Liberals won on 2 cases because Roberts and Kavanaugh voted with them (as did Barrett on 1 case). Obviously, the issue of judicial appointments is a continuing important issue in American politics.