(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
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:
A few years 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 federal courts, the 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, but 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, an African American appointed by President Obama, who was
unanimously confirmed by the Senate and supported by both of the state’s Republican
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 14th amendment to the federal constitution
(one of the post-Civil War amendments) says that states cannot deny any person equal
protection of the laws, 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 the 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 currently have 8 students in top law schools (or
who just graduated), and an increasing number are women and African Americans.
They worked hard, and 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 had a job lined up a year
before graduating law school, 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.
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
their ability to strike down federal laws as unconstitutional; they held
that a federal law could not expand the Supreme Court’s original jurisdiction outlined
in the federal constitution by giving them the power to issue a writ of
mandamus; 2) Fletcher v. Peck, established their 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. 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 world 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 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 14th 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 earned their positions thanks to senatorial courtesy)
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 was 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 equal protection clause of the 14th amendment.
They applied this one person-one vote decision to the U.S. House, and
both chambers of the state legislatures (some states had 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 1st
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 4th 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 6th 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
for their trial. 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 14th
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 should be provided, in your opinion?)
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 towards accusation. So, this
confession was thrown out. This was based on the 6th amendment,
right of counsel in criminal cases.
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 started 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 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 14th amendment clause that
no state may deprive a person of liberty without due process included the right
of a woman to have liberty and privacy to choose whether or not 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 struck down most of those state
laws. After President Trump was successful in appointing three
anti-abortion justices to the Supreme Court, the Court in 2022 in the Dobbs case
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 14th 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 8th amendment ban on cruel and unusual
punishment in the case of rape, as they felt that was an excessive punishment
for the crime. 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 hope 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.
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 facts of 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 a court vacancy, 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.
The current U.S. Supreme Court in my opinion has
3 liberal judges, 3 conservative judges, and 3 moderate conservative “swing”
judges. Kagan, Sotomayor, and Jackson are liberals appointed by Democratic
Presidents, and Thomas, Gorsuch, and Alito are conservatives appointed by
Republicans. Barrett, Kavanaugh, and chief justice Roberts are moderate
conservatives. Roberts, for example, provided the decisive vote that upheld the
constitutionality of Obamacare, holding that requiring those not having health
insurance to pay a penalty fell under the Congress’ taxing power. Barrett sided
with the liberals in attempting to criminalize mere entry into the Capitol by
the January 6 protesters, under a federal law outlawing any attempts to
obstruct official proceedings. Sometimes even the 6 more ideological justices
cast independent votes. African American Ketanji Brown Jackson (Biden appointment)
sided with the January 6 protesters, fearing the law could be used against
civil rights protesters, and pointing out that the intent of the law was to prevent
the destruction of evidence. Gorsuch and Roberts expanded the prohibition of
sex discrimination in employment to gays and transexuals, arguing that the word
“sex” would include alternative lifestyles, though the Congressional debate and
intent was to merely protect women.