1 9 The Judiciary The final word on interpretation of the Constitution is up to the nine members of the Supreme Court. How the Constitution is interpreted depends upon the policy preferences of the individual justices. As you will see in this chapter on the judiciary, liberal and conservative justices interpret the Constitution in very different ways. https://www.youtube.com/watch?v=JWGZP4JerMc https://www.youtube.com/watch?v=-wqOApBLPio https://www.youtube.com/watch?v=0-VfFi6Z14Q https://www.youtube.com/watch?v=wzjRwNUQDRU

2 Judiciary Act of 1789 and Creation of the Federal Judicial System9.1 Judiciary Act of 1789 and Creation of the Federal Judicial System Three-tiered Court Structure Federal District Court Circuit Courts (Courts of Appeal) Supreme Court Rocky beginning for Supreme Court Despite the Framer’s wishes to keep politics and the judiciary separate, Congress spent the second half of its first session deliberating the form and substance of the federal judiciary, and ultimately passed the Judiciary Act of This act established the three-tiered structure of the federal courts. At the bottom were Federal District Courts – at least one in each state. If the litigants of a case didn’t like the ruling at that level, they could appeal their case to the second level: the Circuit Courts. The third and final level was the Supreme Court. Although the Constitution mentions the Supreme Court, it does not specify how many people should serve on it. Originally there were six members, then five, and then in 1869 it was permanently fixed at nine. The Supreme Court had a somewhat rocky start. Hampered by frequent changes in personnel, limited space for operations, no clerical support and no system for reporting its decision, the early court did not impress.

3 The Marshall Court: Marbury v. Madison and Judicial Review9.1 The Marshall Court: Marbury v. Madison and Judicial Review John Marshall’s tenure: Opinions from the Court, rather than individual justices McCulloch v. Maryland (1819) Broad interpretation of “necessary and proper” clause Marbury v. Madison (1803) Established Judicial Review The evolution of the Supreme Court’s role has resulted in large part through the leadership of some of the justices who have served. John Marshall, who headed the court from 1801 to 1835, is considered the most important of all the justices. Marshall established the practice of having the Court deliver opinions as one voice, rather than having each justice write his own. The Marshall Court also established the supremacy of the federal government and Congress over state governments through a broad interpretation of the necessary and proper clause in McCulloch v. Maryland. Perhaps most importantly, the Marshall Court claimed the right of judicial review, the power of the court to review the acts of other branches of government and the states for constitutionality, in a case called Marbury v. Madison.

4 The Federal Court System9.2 The Federal Court System District Courts Courts of Appeals The Supreme Court The judicial system in the United States can best be described as a dual system consisting of the federal court system and the judicial systems of the fifty states. As we will discuss in more detail in this section, both systems are basically three-tiered. At the bottom of the system are trial courts, where litigation begins. In the middle are appellate courts, which generally review only findings of law made by trial courts. At the top of both the federal and state court systems sits the court of last resort. In the federal court system, trial courts are called district courts, appellate courts are called courts of appeals, and the court of last resort is the Supreme Court.

5 District Courts 9.2 Each state has at least oneMore populous states have more Congress created the U.S. District Courts when it enacted the Judiciary Act of District courts are federal trial courts. Right now we have ninety-four. Each state has at least one, and the most populous states – California, Texas and New York, each have four. Cases which are heard in the federal district courts generally fall into one of three categories: (1) They involve the federal government as a party; (2) they present a federal question based on a claim under the U.S. Constitution, a treaty with another nation, or a federal statute; or (3) they involve civil suits in which citizens are from different states and the amount of money involved is more than $75,000. Each federal judicial district has a U.S. Attorney General, who is nominated by the president and confirmed by the Senate.

6 District Courts 9.2 Jurisdiction U.S. Attorney GeneralsMust involve federal or multi-state issue Generally, They involve the federal government as a party they present a federal question based on a claim under the U.S. Constitution, a treaty with another nation, or a federal statute they involve civil suits in which citizens are from different states and the amount of money involved is more than $75,000. U.S. Attorney Generals Nominated by president; confirmed by Senate

7 The Courts of Appeals 9.2 Eleven Courts of AppealsA twelfth restricted to federal regulatory commissions and a thirteenth to patents Job: mainly correct errors of law and procedure Number of judges varies (6-30!) Depends on workload and complexity Judges are divided in rotating panels No original jurisdiction No new testimony appeals from criminal and civil cases and appeals from administrative agencies There are currently eleven numbered courts of appeals. A twelfth handles most appeals involving federal regulatory commissions and agencies including, for example, the National Labor Relations Board. A thirteenth is the U.S. Court of Appeals for the Federal Circuit, which deals with patents and contracts and financial claims against the federal government. The number of judges within each court of appeals varies depending on the workload and complexity of the cases. It can range from six judges to nearly thirty. In deciding cases, judges are divided into rotating panels of three judges. The courts of appeals have no original jurisdiction. They hear appeals from criminal and civil cases, and appeals from administrative agencies. In general, courts of appeals try to correct errors of law and procedure. They hear no new testimony.

8 The Supreme Court 9.2 Jurisdiction Members PrecedentReviews cases from U.S. Courts of Appeal and state supreme courts (or other unique courts of last resort) Sometimes issues are very controversial Members Eight associate justices and one chief justice since 1869 Each justice has 4 clerks and the entire Court employs over 400 staff Precedent Rules are binding throughout the nation—it’s not law; it’s establishing precedent Stare decisis practice of adhering to precedent when deciding cases Sometimes cases reviewed by the Supreme Court involve highly controversial issues. The Court hears only cases from U.S. Courts of Appeal and those from state supreme courts and other courts of last resort. Since 1869, there have been eight associate justices and one chief justice who serve on the court. Each has four clerks, and the entire court employs just 400 staff members. Decisions of the U.S. Supreme Court are extremely important because they are binding throughout the entire country and establish national precedents, or rules for settling subsequent cases of similar nature. The practice of adhering to precedent when deciding cases is called stare decisis. Who can translate this Latin phrase for us?

9 The Supreme Court Today9.4 The Supreme Court Today Deciding to Hear a Case How Does a Case Survive the Process? Hearing and Deciding the Case Despite the tremendous power and influence the Supreme Court has over the policy and laws that affect Americans’ lives, very few Americans have any real depth of knowledge about the Court. This may be due in large part to lack of interest, but the Court itself has taken great pains to maintain privacy and decorum. It does not televise hearings, for example, and utmost secrecy surrounds the deliberation process. In this section we will discuss how the Supreme Court decides to hear a case, and what happens next.

10 Deciding to Hear a Case Where do cases come from? 9.4The Supreme Court controls its own caseload, deciding which cases it wants to hear and rejecting the rest. Cases must come from U.S. Courts of appeals or other courts of last resort Cases must involve a federal question It’s their time? Over 8,150 cases were filed at the Supreme Court during its term. 82 were heard, and 81 decisions were issued. As you can see, only a fraction of cases requesting Supreme Court review are ever considered. The Supreme Court controls its own caseload, deciding which cases it wants to hear and rejecting the rest. Litigants wanting their case to be heard send a petition for a writ of certiorari (Latin for “to be informed”) to the Supreme Court, requesting a review of a lower court’s ruling. Those petitions are sent first to the chief justice, and then to the other justices. Under the “Rule of Four,” a case will get a hearing if at least four justices agree. The Clerks of the Supreme Court are very important in this process. They generally graduate at the top of their class from top law schools. They review cases and make recommendations to their bosses. Since the Court started hiring more clerks for each justice, the length of opinions has increased as well.

11 Deciding to Hear a Case 9.4 Writs of Certiorari and the Rule of FourLitigants wanting their case to be heard send a petition for a writ of certiorari to SCOTUS It is a request a review of a lower court’s ruling Sent first to the chief justice and then to the other justices the “Rule of Four” means that a case will get a hearing if at least four justices agree. Role of Clerks They review cases and make recommendations generally graduate at the top of their class from top law schools As more clerks have been hired the length of opinion has greatly increased! Over 8,150 cases were filed at the Supreme Court during its term. 82 were heard, and 81 decisions were issued. As you can see, only a fraction of cases requesting Supreme Court review are ever considered. The Supreme Court controls its own caseload, deciding which cases it wants to hear and rejecting the rest. Litigants wanting their case to be heard send a petition for a writ of certiorari (Latin for “to be informed”) to the Supreme Court, requesting a review of a lower court’s ruling. Those petitions are sent first to the chief justice, and then to the other justices. Under the “Rule of Four,” a case will get a hearing if at least four justices agree. The Clerks of the Supreme Court are very important in this process. They generally graduate at the top of their class from top law schools. They review cases and make recommendations to their bosses. Since the Court started hiring more clerks for each justice, the length of opinions has increased as well.

12 9.4 FIGURE 9.2: How Many Cases Does the Supreme Court Handle?This figure shows that the number of cases appealed to the Supreme Court has risen steadily in the last 60 years; however, the number of those cases that the Court deigns to hear has declined.

13 9.4 FIGURE 9.3: How Does a Case Get to the Supreme Court?This figure shows how the vast pool of cases is winnowed down to the less than 100 cases heard and decided upon by the Supreme Court.

14 How Does a Case Survive the Process? 9.4Generally a case that is hear by SCOTUS fall into one of three groups Federal Government is involved The Solicitor General—the 9½ member, pres appoints SCOTUS hears 70 to 80% of the cases to which gov. is the petitioning party, compared to about 5% of all other petitioning parties. Conflicts Among the Courts of Appeal Different interpretations, precedent setting Interest Group Participation Important social issues record of wide interest group support amicus curiae So which cases tend to get a hearing? Generally they fall into one of three categories: They involve the federal government. The solicitor general, a presidential appointee who is fourth in command at the Department of Justice and sometimes called the Court’s “ninth and a half” member, has long had a special relationship with the Supreme Court. As a result, the Supreme Court tends to hear 70 to 80% of the cases to which the United States government is the petitioning party, compared to about 5% of all other petitioning parties. They involve conflict among the lower courts. When circuit courts disagree over interpretation of an important issues, the Supreme Court may decide to weigh in. They involve especially important social issues and there is a record of wide interest group support. Interest groups participate by filing briefs as amicus curiae, or friend of the Court.

15 9.4 Argument Calendar

16 Hearing and Deciding the Case 9.4 Oral ArgumentsAfter the court accepts and each side has submitted briefs Attorneys are given one half-hour to argue their case, including time required to answer questions The Conference and the Vote Closed conferences twice a week with a handshake! chief justice begins the discussion of the case and each justice speaks in order of seniority a vote on the case follows Writing the Opinion Assignment The opinion is important because it sets out the legal reasoning justifying the decision, and this legal reasoning becomes a precedent Dissenting opinions Concurring opinions After the court accepts a case and each side has submitted briefs, the oral arguments begin. Generally, attorneys are given one half-hour to argue their case, including time required to answer questions from the justices. Court observers have tried to predict the ruling of a case based on justices’ questions, but that is an imperfect art. After arguments, the justices meet behind closed doors twice a week. They start each conference with a handshake. The chief justice begins the discussion of the case, and each justice speaks in order of seniority. Discussions are followed by a vote on the case. Once a decision has been made, the opinion must be written. If the chief justice is in the majority, he will assign a justice to write the majority opinion. The opinion is important because it sets out the legal reasoning justifying the decision, and this legal reasoning becomes a precedent for deciding future cases. Justices who disagree with the majority may write a dissenting opinion. Justices who agree with the vote but not the reasoning may submit a concurring opinion.

17 Hearing and Deciding the CaseThe opinion of the Court https://www.supremecourt.gov/opinions/15pdf/15-274_new_e18f.pdf

18 Hearing and Deciding the CaseA concurring opinion https://www.supremecourt.gov/opinions/15pdf/15-274_new_e18f.pdf

19 Hearing and Deciding the CaseA dissenting opinion https://www.supremecourt.gov/opinions/15pdf/15-274_new_e18f.pdf

20 Judicial Philosophy, Original Intent, and Ideology9.5 Judicial Philosophy, Original Intent, and Ideology Judicial philosophy and ideology Judicial restraint Deference to other branches of government Judicial activism justices help create public policy through their decisions Original intent Strict constructionism interpret the Constitution as the Framers wrote and originally intended it Realistic? Antonin Scalia and Stephen Breyer debate the Constitution A Conversation on the Constitution—Breyer and Scalia One of the main controversies concerning judicial decision-making focuses on what is called the activism/restraint debate. Advocates of judicial restraint argue that courts should allow the decisions of other branches of government to stand, even when they violate a judge’s own principles. Because judges are not elected, they should leave policy making to the elected branches. Judicial activism is the opposite: justices help create public policy through their decisions. The case Roe v. Wade, which liberalized abortion laws, is considered an example of judicial activism. Those who support judicial restraint tend to agree that justices should be strict constructionists. In other words, justices should interpret the Constitution as the Framers wrote and originally intended it. As we will see, this is not realistically possible today. Activity: Describe a case, either using a real case or a hypothetical one, perhaps associated with some local or national news headline. Split the class into two sections and assign one as an activist court, the other as a court practicing judicial restraint. Each group is to make a decision on the described case, using only those qualities associated with its assigned method of reaching decisions. How do the outcomes compare?

21 Implementing Court Decisions9.6 Implementing Court Decisions Judicial implementation How judicial decisions are rolled out for the public Policy must follow in order to implement the decision Implementing population Those responsible for carrying out the decision lawyers, judges, public officials, government agencies Consumer population Those directly affected by the decision Once the court has ruled – especially if it has reversed an earlier court decision or an action by a branch of government – policy must follow in order to implement the decision. This is called judicial implementation. In considering judicial implementation, policy makers must be aware of the implementing population – those responsible for carrying out the decision, such as lawyers, judges, public officials, government agencies – and the consumer population. Those are people who might be directly affected by a decision. Before judicial implementation can be carried out, the following must first be determined: does the implementing population understand the ruling? Will the implementing population actually follow the ruling? Is the consumer population aware of the rights that the decision grants or denies them? Before judicial implementation, the following must first be determined: Does the implementing population understand the ruling? Will the implementing population actually follow the ruling? Is the consumer population aware of the rights that the decision grants or denies them?

22 9 Discussion Questions What role do the courts play in policy making? Should public opinion be considered when the judiciary makes policy decisions? What are some of the advantages and disadvantages of judicial activism?

23 4 Civil Liberties Vehicles are one Fourth Amendment issue that has continuously troubled the Supreme Court. In this photo, a Department of Homeland Security agent uses technological devices to search a van at the U.S.-Mexico border.

24 The Incorporation Doctrine: 4.1 The Incorporation Doctrine: The Bill of Rights Made Applicable to the States Fourteenth Amendment Bill of Rights applies to actions of states, not just federal government Due process clause Applied to Bill of Rights Substantive due process The Bill of Rights protected individuals against actions by the federal government, but not by actions of the states. This changed with the addition of the Fourteenth Amendment. The Fourteenth Amendment requires state and local governments to guarantee that all individuals receive the rights outlined in the Bill of Rights. In 1897, the Supreme Court ruled that states were accountable for substantive due process. States had to prove that state laws were not a misuse of power in regulating the health, welfare, and morals of citizens. Applying due process to rights listed in the Bill of Rights is called the incorporation doctrine.

25 Selective Incorporation and Fundamental Freedoms4.1 Selective Incorporation and Fundamental Freedoms Fundamental freedoms protected under selective incorporation Rights that states must protect: Freedom of press Freedom of speech Freedom of assembly The Court used the doctrine of selective incorporation to determine which rights in the Bill of Rights apply to states under the due process clause of the Fourteenth Amendment. Fundamental freedoms protected under selective incorporation include the rights defined by the Court as essential to order, liberty and justice. States are bound by these rights and must ensure that individuals have these rights. Fundamental freedoms include freedom of press, freedom of speech, and freedom of assembly.

26 First Amendment Guarantees: Freedom of Religion4.2 First Amendment Guarantees: Freedom of Religion The Establishment Clause The Free Exercise Clause The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” It is clear that the government cannot establish a national government, and that individuals are to exercise the religion of their choice freely. However, as with many civil liberties, there are limits to freedom of religion. Also, the separation of church and state has long been a topic of debate in the United States.

27 The Establishment Clause4.2 The Establishment Clause Separation of church and state Lemon test Must have secular purpose Must not advance or prohibit a religion Must not entangle government with religion It’s clear that the establishment clause prohibits the government from sanctioning an official religion. Issues involving the separation of church and state are highly controversial. Prayer in schools went largely undisputed until the 1960s when in Engel v. Vitale (1962), the Court ruled that a mandatory prayer in public school classrooms was unconstitutional. As a result of controversy surrounding the separation of church and state, the Court established a three-part test known as the Lemon test. This test is derived from the Lemon v. Kurtzman case of A law or government practice is allowed if it: (1) has a secular purpose (2) does not inhibit or advance religion, and (3) does not create an excessive entanglement of government and religion.

28 Free Exercise Clause 4.2 Free exercise clause not absoluteSome religious rites considered illegal State must provide compelling reason to limit exercise of religion The free exercise clause holds that “Congress shall make no law prohibiting the free exercise [of religion].” Like the establishment clause, the free exercise clause is not absolute. The free exercise of religion allows individuals to engage in religious activities without government interference, as long as the acts fall within acceptable norms. So polygamy, even if part of a religious observance, would not be allowed, especially if a state could show a compelling reason to prohibit it.

29 4.3 First Amendment Guarantees: Freedoms of Speech, Press, Assembly, and Petition Freedoms of Speech and the Press Protected Speech and Press Unprotected Speech and Press Freedoms of Assembly and Petition Some First Amendment rights have historically been set aside to accommodate the needs of the government during times of war. This section will provide the background about the freedom of the press, speech, and assembly and petition.

30 Freedoms of Speech and the Press4.3 Freedoms of Speech and the Press Prior restraint Alien and Sedition Acts Censored criticisms of the government Slavery, Civil War speech again censored World War I and anti-government speech The First Amendment protects individuals against prior restraint of speech. This means that government cannot prohibit or censor publications or speech. However, in 1798, Congress passed the Alien and Sedition Acts, which banned publications critical of the government. After the election of Thomas Jefferson, those who were convicted under these Acts were pardoned. Before, during, and after the Civil War, freedom of speech was again restricted. Publications in favor of slavery were not permitted in the North and those opposing slavery were not permitted in the South. President Lincoln suspended free press protections of the First Amendment. Freedom of speech continued to be curtailed between 1890 and 1900, when people were prosecuted for seditious speech, and in the early twentieth century as Socialists and Communists who appealed to the growing immigrant populations were targeted for their views on government. In 1919 the Supreme Court ruled that speech could be punishable by law if it presented a clear and present danger to society. Any speech that would directly incite or advocate illegal action could be prohibited. However, in 1969, the court decided that even speech that advocates for illegal action is constitutional if it is not likely to produce such actions.

31 Protected Speech and Press?4.3 Protected Speech and Press? Limiting prior restraint Symbolic speech Hate speech As we have discussed, Congress attempted to prohibit publications critical of the government as early as The issue of prior restraint arose again in the 1970s in New York Times Co. v. U.S. In this case, the Supreme Court ruled that the government could not block the publication of the Pentagon Papers, secret Department of Defense documents obtained by the New York Times. The court has ruled that symbolic speech is also protected under the First Amendment. Symbolic speech implies expression through symbols or signs. Some famous decisions in favor of symbolic speech included the Court’s ruling that students had the right to wear black armbands to protest the Vietnam War, and that state laws prohibiting flag burning are unconstitutional. Hate speech, which belittles a person or group, is another difficult issue. It is not protected when it is conducted to intimidate groups or to disrupt activities.

32 Unprotected Speech and Press4.3 Unprotected Speech and Press Unprotected speech Libel Slander Fighting words Obscenity While most speech is protected under the First Amendment, libel, slander, fighting words and obscenity are not. Statements that defame an individual’s character with malice and a clear intent to provide false information are not protected. When these words are written, they are called libel. When they are spoken, they are called slander. Fighting words are words that “by their very utterance inflict injury or tend to incite an immediate breach of peace.” Fighting words are not subject to the restrictions of the First Amendment. The Supreme Court ruled in Roth v. United States that obscenity is not constitutionally protected but defining what is obscene has proven elusive. Standards vary both from place to place and from time to time. In Miller v. California, the Court attempted to clarify its obscenity doctrine. Materials were obscene if they appealed to a “prurient interest,” showed “patently offensive” sexual conduct, or lacked “serious literary artistic, political, or scientific value.” The judges of these three criteria were to be average people applying local, not national, standards. The Court ruled in 2008 that the PROTECT Act, which outlaws the sale of pornography to minors, is constitutional, although the Internet has made it difficult to restrict minors’ access to pornography.

33 Freedoms of Assembly and Petition4.3 Freedoms of Assembly and Petition Freedom to assemble hinges on peaceful conduct Subject to rules regarding free speech Right to petition government about issues Freedom to assemble hinges on peaceful conduct. Without this, leaders and attendees may be subject to governmental regulation and even arrest, incarceration, or civil fines. The freedom to assemble has often been controversial, especially in times of war. The Supreme Court has rarely addressed the right to petition government. However, in 2010, the Supreme Court found that the disclosure of petitioners does not violate First Amendment rights. If individuals choose to sign a ballot initiative, then those names must be disclosed.

34 Second Amendment: Right to Keep and Bear Arms4.4 Second Amendment: Right to Keep and Bear Arms Included to prevent Congress from disarming state militias Dred Scott v. Sandford (1857) The right to bear and carry arms is a basic right of citizenship The Framers added the Second Amendment to ensure that Congress could not disarm state militias. In Dred Scott v. Sanford, the right to bear arms was listed as a basic right of citizenship. This does not limit the government from taxing or regulating the sale of firearms, but individuals have the right to own them through legal means. Through the early 1920s few state laws were enacted to regulate firearms. In 1934, Congress did pass the National Firearms Act during Prohibition, in response to the explosion of organized crime and the increase in automatic weapons. However, despite controversy over gun violence and gun control, the Court has upheld the right of citizens to own firearms for personal use.

35 Rights of Criminal Defendants4.5 Rights of Criminal Defendants The Fourth Amendment and Searches and Seizures The Fifth Amendment: Self-Incrimination and Double Jeopardy The Fourth and Fifth Amendments: The Exclusionary Rule The Sixth Amendment: Right to Counsel The Sixth Amendment: Jury Trials The Eighth Amendment: Cruel and Unusual Punishment Multiple amendments to the Constitution provide protection for those who have been accused of a crime. Several clauses in the Bill of Rights protect people who are accused of a crime by preventing individuals from being mistreated by overzealous law enforcement officials. Writs of habeas corpus require law enforcement officials to provide proof that an individual is being held lawfully. Ex post facto laws, which are laws that make an act punishable even if the act was legal when it was committed, are prohibited. Bills of attainder, which punish persons or groups for crimes without the benefit of a trial, are also prohibited. This section will discuss the protections provided by the Fourth, Fifth, Sixth and Eighth Amendments.

36 The Fourth Amendment and Searches and Seizures4.5 The Fourth Amendment and Searches and Seizures Protection from unreasonable searches Warrants Probable cause Drug tests The Fourth Amendment of the Bill of Rights protects citizens from “unreasonable” searches and seizures. Police must have warrants to search homes and to obtain the warrants they must have probable cause—that is, they must have enough information suggesting that a crime has taken place and that an individual or location is linked to the crime. As with many civil liberties, there are exceptions to the rule. Law enforcement officials do have the right to search an individual’s pockets, purse, or car as long as what they obtain was within the view or reach of the individual at the time of the arrest. Drug tests are another thorny issue. The Court upheld rulings that drug tests by businesses and schools are constitutional.

37 The Fifth Amendment: Self-Incrimination and Double Jeopardy4.5 The Fifth Amendment: Self-Incrimination and Double Jeopardy Protection against self-incrimination Miranda v. Arizona (1966) Right to remain silent Knowledge that what you say can be used against you Right to an attorney present during questioning Right to have an attorney provided if you cannot afford one Double jeopardy The Fifth Amendment protection against self-incrimination means that the burden of proof is on the prosecution. If you are accused of a crime, you cannot be compelled to testify against yourself. You are innocent until the state proves that you are guilty, and you don’t have to help the prosecution prove their case against you. It is possible, indeed likely, that someone who is arrested may say something incriminating under interrogation, without being aware of their constitutional rights to remain silent, to have an attorney present during questioning, and to be provided with an attorney if they cannot afford one. In the 1966 case of Miranda v. Arizona, the Supreme Court ruled that arresting officers must inform accused persons of these rights. In addition to the previously mentioned protections, someone cannot be tried twice for the same crime. This is known as double jeopardy.

38 The Fourth and Fifth Amendments and the Exclusionary Rule4.5 The Fourth and Fifth Amendments and the Exclusionary Rule Mapp v. Ohio (1961) Exceptions to the exclusionary rule “Good faith” mistakes The exclusionary rule prevents the use of illegally obtained evidence. It was extended to the states in the 1961 case of Mapp v. Ohio, making such evidence inadmissible in state courts. But the courts have recently upheld many exceptions, such as when the evidence could have been obtained by legal means or the police did not realize the seizure was improper. There is widespread public support for preventing criminals from going free on a “technicality.” The Court has ruled in favor of some “good faith exceptions” if law enforcement officials believed that the search they were conducting was legal.

39 The Sixth Amendment and Right to Counsel4.5 The Sixth Amendment and Right to Counsel Sixth Amendment right to attorney Gideon v. Wainwright (1963) State must provide attorney for indigent Right to counsel begins with first appearance before a judge The Sixth Amendment guarantees the right to counsel in federal courts. But most trials happen in state courts and most defendants cannot afford an attorney. It was not until 1932 that this right was incorporated, and the state required to pay for an attorney for the indigent, and then only for capital crimes. In 1963, in the famous case of Gideon v. Wainwright, the Court extended this right to anyone accused of a felony, and subsequent rulings have extended it to crimes in which imprisonment could be imposed. In 2008, the Court ruled that the right to counsel began at the time of the individual’s first appearance before a judge.

40 The Sixth Amendment and Jury Trials4.5 The Sixth Amendment and Jury Trials Speedy and public trial by impartial jury Right to confront witnesses Jury of peers Racial peers Gender When cases do go to trial, defendants have the right to an impartial jury that is not racially biased. Defendants also have the right to confront witnesses to prevent false testimony and to be informed of evidence that may exonerate them. In 1954, the Supreme Court ruled that Hispanics were entitled to a jury trial that included Hispanic peers. Gender discrimination was often a question, especially concerning cases regarding rape and murder. Ultimately, the Court determined that the equal protection clause prohibits discrimination on the basis of gender.

41 The Eighth Amendment and Cruel and Unusual Punishment4.5 The Eighth Amendment and Cruel and Unusual Punishment Cruel and unusual punishment not defined Furman v. Georgia (1972) Protecting the wrongfully convicted The Constitution forbids cruel and unusual punishment but it does not define it. It is up to the sensibilities of the age. The Court has not ruled that the death penalty is in itself cruel and unusual punishment, but has upheld restrictions on its use. In Furman v. Georgia, the Court ruled that because the death penalty had been unfairly applied to African Americans, it was cruel and unusual punishment. However, the Court later ruled that the death penalty was not unconstitutional unless it could be proved that racial discrimination applied to the particular case. In recent cases, the Court has upheld the use of lethal injection as a method of execution, and made it more difficult for death row inmates to appeal their sentences. Public support for the death penalty is high in the U.S., but advances in DNA technology that demonstrate that innocent people have been executed may cause that support to wane.

42 Right to Privacy 4.6 Birth Control Abortion HomosexualityWhile the Constitution does not specifically outline the right to privacy, it was acknowledged as early as 1928 by Justice Louis Brandeis, who explained that privacy is “the right to be left alone – the most comprehensive of rights and the right most valued by civilized men.” In this section, we will discuss privacy in terms of reproductive rights and sexual rights.

43 Birth Control 4.6 Right of women to obtain contraceptivesGriswold v. Connecticut (1965) Until the 1960s contraceptives were often restricted in states. In many states they could not be sold to minors, if at all. Connecticut banned the sale of all forms of birth control and prohibited doctors from discussing contraceptives with married women. Griswold v. Connecticut concerned a Connecticut law prohibiting the use of birth control by married couples. The Court argued that the rights in the Constitution implied a right to privacy that extended to the behavior of married couples in the privacy of their bedroom. The Supreme Court ultimately ruled that the Connecticut state law was unconstitutional and later expanded the right to privacy to include the right of unmarried individuals to have access to contraceptives.

44 Abortion 4.6 Roe v. Wade Planned Parenthood v. Casey (1992)Prohibits state bans on abortion Planned Parenthood v. Casey (1992) Restrictions cannot place “undue burden” on woman One of the most famous and controversial cases in Supreme Court history concerns the application of the implied right to privacy to the issue of abortion. In 1973, in the case of Roe v. Wade, the Court ruled that the right to privacy protects a woman’s decision to terminate a pregnancy but that this right is not absolute. Following the result of Roe v. Wade several state legislatures and city councils sought to counteract the Court’s decision. They enacted statutes and ordinances to make obtaining abortions more difficult by specifying expensive medical procedures and other matters during the second trimester. In 1992, in its decision in Planned Parenthood v. Casey, the Supreme Court made it easier for states to place restrictions on abortion services by stating that such restrictions could not place an “undue burden” on a woman seeking an abortion in order to pass constitutional muster. What states consider to be an “undue burden” varies widely.

45 Homosexuality 4.6 Right to privacy extends to private sexual behaviorLawrence v. Texas (2003) Griswold v. Connecticut determined that married couples have the right to privacy regarding their personal lives. This right was extended to private sexual relations between men in Lawrence v. Texas.

46 5 Civil Rights The constitutional rights enjoyed by Americans have evolved substantially over the years, as we will discover in this chapter on civil rights, but we have a long way to go, especially with regard to women in the workplace.

47 The First Civil Rights Movement: Abolition and Women’s Rights5.1 The First Civil Rights Movement: Abolition and Women’s Rights The American Anti-Slavery Society William Lloyd Garrison Arthur Tappan Seneca Falls Convention Elizabeth Cady Stanton Lucretia Mott Sojourner Truth: “Ain’t I a Woman?” While the Missouri Compromise solidified the South in its determination to keep slavery legal, it also inspired others to fight it. William Lloyd Garrison, a newspaper editor, galvanized the abolition movement in the 1830s. Garrison founded the American Anti-Slavery Society in 1833. At the same time, some people began questioning the subordinate role assigned to women. Elizabeth Cady Stanton and Lucretia Mott began to compare their status as women to those of the former slaves. In 1848, they called for a women’s rights convention, which became the Seneca Falls Convention. The resolutions passed by the convention decried limited opportunities for women in education, politics, medicine and other fields. Similar conventions were held around the country, including the one where former slave Sojourner Truth delivered her “Ain’t I a Woman?” speech, in which she called for support of African American women.

48 5.1 The Civil War and Its Aftermath: Civil Rights Laws and Constitutional Amendments Thirteenth Amendment Black Codes Fourteenth Amendment Equal Protection Clause Fifteenth Amendment Excluded women National Woman Suffrage Association When President Abraham Lincoln issued the Emancipation Proclamation, it freed only the slaves who lived in the Confederacy. Complete abolition of slavery didn’t come until the ratification of the Thirteenth Amendment following the end of the Civil War. But the amendment was weakened by the laws, called Black Codes, that Southern states passed to restrict opportunities for newly freed slaves. Those laws prohibited African Americans from voting, sitting on juries or even appearing in public in some cases. The Fourteenth Amendment guaranteed citizenship for all newly freed slaves, and included the “equal protection clause,” which prohibits states from denying any person equal protection of the laws. Congress also passed the Fifteenth Amendment, which guaranteed newly freed male slaves the right to vote. Women were not included. An outraged Susan B. Anthony and Elizabeth Cady Stanton formed the National Woman Suffrage Association.

49 Civil Rights, Congress, and the Supreme Court5.1 Civil Rights, Congress, and the Supreme Court Civil Rights Act of 1875 Equal access to public accommodations Reconstruction (federal occupation of the South) ended 1877 Jim Crow laws Poll taxes Grandfather clause Continued Southern resistance to African American equality led Congress to pass the Civil Rights Act of 1875, which was designed to give equal access to public accommodations such as theaters, restaurants, and transportation. But these efforts were weakened considerably in 1877, when Reconstruction ended and federal troops pulled out of the South. With no troops around to enforce equal access, Southern states passed laws requiring discrimination and segregation, known as the Jim Crow laws. Examples included poll taxes, which required voters to pay to vote, literacy tests and other disenfranchising measures. Grandfather clauses, which granted voting rights only to those whose grandfathers had voted before Reconstruction, further decimated African American voting rights.

50 Litigating for Equality5.2 Litigating for Equality Test Cases Challenged constitutionality of segregated law schools NAACP Legal Defense and Educational Fund Brown v. Board of Education (1954) Struck down “separate but equal” While women’s groups worked on suffrage, the NAACP turned to litigation to push for equality. Its first step was to challenge the constitutionality of so-called “separate but equal” law schools. A test case in Missouri involved Lloyd Gaines, an African American who sought admission to the all-white University of Missouri Law School in His application was rejected, but the school offered to build a law school at an African American college or pay his tuition at an out-of-state law school. The NAACP successfully argued before the Supreme Court that such a deal was in no way “equal” to the education Gaines would receive at Missouri. Bolstered by this success, the NAACP set up its Legal Defense and Educational Fund, and pursued other law school test cases. Ultimately, the NAACP took on public school segregation. In a ruling that shook the nation, the Supreme Court acknowledged the psychological harm segregation inflicted on African American children and declared public school segregation unconstitutional.

51 The Civil Rights Movement5.3 The Civil Rights Movement School Desegregation After Brown A New Move for African American Rights Formation of New Groups The Civil Rights Act of 1964 Statutory Remedies for Race Discrimination As we just noted, in 1954 the U.S. Supreme Court ruled in Brown v. Board of Education that racially segregated state school systems were unconstitutional. This victory empowered African Americans as they sought an end to other forms of discrimination. Bus boycotts, sit-ins, freedom rides, and other demonstrations become more commonplace. These efforts culminated in the passing of the Civil Rights Act of 1964.

52 School Desegregation After Brown5.3 School Desegregation After Brown 'With all deliberate speed' Brown not immediately implemented Cooper v. Aaron (1958) The first Brown v. Board of Education case did not have an immediate impact on desegregating schools. So one year after the original 1954 ruling, the Supreme Court ordered in a case called Brown v. Board of Education II (1955) that all racially segregated systems must be dismantled 'with all deliberate speed.' The Court tasked federal district court judges with enforcing the Brown ruling. In response, the South entered into a near conspiracy to avoid complying with the ruling. Arkansas Gov. Orval Faubus ordered out the National Guard to prevent African American students from enrolling in Little Rock Central High School, which prompted President Dwight D. Eisenhower to send in federal troops. The Supreme Court then ruled in Cooper v. Aaron that such state schemes were unconstitutional.

53 A New Move for African American Rights5.3 A New Move for African American Rights Rosa Parks Boycott of the Montgomery city bus system Segregated bus system ruled unconstitutional Following the Brown ruling, civil rights leaders began looking for other ways to fight against segregation and for equality. In Montgomery, Alabama, Rosa Parks decided to challenge the constitutionality of the city's segregated bus system. Parks, who was the local NAACP's Youth Council adviser, refused to give her seat to a white male passenger who didn't have a seat. She was arrested and charged with violating state segregation laws. The NAACP enlisted local clergy to help fight for the cause, and together they boycotted the bus system on the day of Parks's trial. African Americans walked, carpooled, or used black-owned taxicabs. The boycott lasted a year, during which time a federal court declared the segregated bus system unconstitutional and city officials ordered the system to integrate.

54 5.3 The Civil Rights Act of 1964 March on Washington for Jobs and Freedom (1963) Martin Luther King, Jr.'s, "I Have a Dream" speech President Lyndon B. Johnson's priority Longest filibuster in Senate history By the mid 1960s, attitudes toward integration and equality had begun to change. In 1963, President John F. Kennedy requested that Congress pass a law banning discrimination in public accommodations. In response, Dr. King called for the 1963 March on Washington for Jobs and Freedom. Those who attended heard King deliver his famous "I Have a Dream" speech. Unfortunately, Kennedy was assassinated before the bill was passed. His successor, Lyndon B. Johnson, took up the cause, but it was no easy sell in Congress. Southern senators, led by South Carolina's Strom Thurmond, held the longest filibuster in Senate history to block the bill. Once it did pass, however, the Civil Rights Act of 1964 ordered the end of discrimination and gave the Department of Justice the tools needed to enforce the law.

55 Statutory Remedies for Race Discrimination5.3 Statutory Remedies for Race Discrimination Education Department of Justice could bring cases against school districts De jure discrimination versus de facto discrimination Employment "Business necessity" of practices that excluded African Americans The Civil Rights Act of 1964 gave the Department of Justice the authority to bring cases against school districts that had failed to comply with the desegregation orders of Brown v. Board of Education. This required a distinction between de jure discrimination, which is discrimination by law, and de facto discrimination, which is discrimination that results from practice, such as housing patterns. Where schools were concerned, the Court noted it was approving busing only for de jure discrimination. The Civil Rights Act of 1964 also prohibits employers from discriminating against employees. In 1971, the Supreme Court ruled that employers could be liable if their practices had the effect of excluding African Americans from certain positions. Where such exclusion was evident, the Court ruled the employer had to prove the practice, such as requiring employees to pass a test in order to be promoted, was a 'business necessity' related to the successful performance of a particular job.

56 Civil Rights and Affirmative Action5.6 Civil Rights and Affirmative Action Affirmative action Equality of opportunity Regents of the University of California v. Bakke (1978) Racial quotas unconstitutional but race can be considered when accepting applicants Many civil rights debates center on the question of equality of opportunity versus equality of results. Many advocacy groups argue that taking race and gender into account when creating remedies for discrimination is necessary. This is affirmative action, which can be defined as policies designed to give special attention or compensatory treatment to members of a previously disadvantaged group. In 1978, the Supreme Court ruled in Regents of the University of California v. Bakke that racial quotas were unconstitutional but that universities could take race into account when offering admission. This started a fierce debate over the idea of affirmative action. The Court has allowed universities to give preference to minority applicants. But it has also ruled that affirmative action programs must meet the strict scrutiny test.

57 The Women's Rights Movement5.4 The Women's Rights Movement The Equal Rights Amendment The Equal Protection Clause and Constitutional Standards of Review Statutory Remedies for Sex Discrimination Following the successes of the civil rights movement, women began demanding greater equality for themselves. Some women's rights groups sought a constitutional amendment (the Equal Rights Amendment) to end sex discrimination. Among other things, this would make it harder for employers and other organizations to prove that exclusion of women was not discriminatory. That amendment has not yet been ratified due to resistance from religious conservatives who do not support equal rights under the law for women. President John F. Kennedy created the President's Commission on the Status of Women, which was headed by former First Lady Eleanor Roosevelt. That commission found pervasive discrimination against women in all areas of life.

58 The Equal Rights Amendment5.4 The Equal Rights Amendment Two key provisions Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Roe v. Wade Eroded support for Equal Rights Amendment Women's groups had been fighting for an Equal Rights Amendment for decades. From to 1972, a proposal for an equal rights amendment was made in every session of every Congress. Finally, in 1972, in response to pressure from the National Organization for Women, the National Women's Political Caucus and other groups, Congress passed the Equal Rights Amendment. Within a year, 22 states had ratified the amendment. But support faded fast after the Supreme Court ruled in Roe v. Wade that the constitutional right to privacy included the right to terminate a pregnancy. Opponents of abortion linked the court case to the amendment, and fears that the Equal Rights Amendment could make women eligible for the draft did the rest. The amendment failed.

59 The Equal Protection Clause and Constitutional Standards of Review5.4 The Equal Protection Clause and Constitutional Standards of Review Levels of scrutiny Suspect classifications Strict scrutiny Intermediate scrutiny Rational basis The Fourteenth Amendment protects U.S. citizens from state laws or actions that violate equal protection of the laws. Most laws are subject to what is called the rational basis or minimum rationality test, which is the lowest level of scrutiny. Cases involving race, which is a "suspect classification," are subject to the highest level of scrutiny, also known as strict scrutiny. In cases involving race, any law that discriminates on the base of race is presumed to be unconstitutional unless the state can provide "compelling affirmative justifications." In cases involving sex discrimination, the Court applies an intermediate level of scrutiny. That means the Court is more willing to accept that a state law treating men and women differently could have a legitimate governmental purpose. This intermediate level of scrutiny was created in the case Craig v. Boren.

60 5.4 TABLE What are the standards of review fashioned by the Court under the Equal Protection Clause? Table 5.1 show the different types of classification and standards of review applied to cases regarding the Equal Protection Clause.

61 Statutory Remedies for Sex Discrimination5.4 Statutory Remedies for Sex Discrimination Equal Pay Act of 1963 Requires equal pay for equal work Title VII of Civil Rights Act of 1964 Prohibits gender discrimination by employers Title IX of the Education Amendments of 1972 Bars educational institutions that receive federal funds from discriminating against female students Congress has passed laws seeking to equalize rights for women, including in the workplace. The Equal Pay Act of 1963 requires employers to pay men and women equal pay for equal work, though there is still a significant gap between average men's earnings and average women's earnings. Title VII of the Civil Rights Act of 1964 prohibits employers, public and private, from discriminating on the basis of gender. And Title IX of the Education Amendments of 1972 prohibits educational institutions that receive federal funds from discriminating against female students.

62 Other Groups Mobilize for Rights5.5 Other Groups Mobilize for Rights Hispanic Americans American Indians Asian and Pacific Island Americans Gays and Lesbians Americans with Disabilities Building on the successes of African Americans and women, other groups, including Hispanics, American Indians, Asian and Pacific Island Americans, gays and lesbians, and those with disabilities, organized to litigate for expanded civil rights and to lobby for anti-discrimination laws.

63 Hispanic Americans 5.5 Hernandez v. Texas (1954) César ChávezJury should include other Mexican Americans César Chávez United Farm Workers Union Mexican American Legal Defense and Educational Fund (MALDEF) Hispanics are the largest and fastest-growing minority group in the United States. In 1954, the same year as the Brown v. Board of Education case, Hispanics won a major victory when, in Hernandez v. Texas, the Supreme Court ruled unanimously that Mexican Americans had the right to a jury that included other Mexican Americans. A push for even greater rights began in the 1960s, following a wave of immigration by Cubans to Florida. Around this time César Chávez began organizing farm workers to demand better working conditions and pay, and formed the United Farm Workers Union. Hispanics also relied on litigation to secure greater equality and civil rights. In particular, the organizations Mexican American Legal Defense and Educational Fund and the Puerto Rican Legal Defense and Education Fund used the courts to seek more funding and bilingual services for schools with predominantly low-income minority populations.

64 American Indians 5.5 Northwest Ordinance of 1787 Dawes Act (1887)specified that "good faith should always be observed toward the Indians," Dawes Act (1887) forced assimilation by requiring, among other things, that children be sent away to boarding school. Native American Rights Fund (1970) Bury My Heart at Wounded Knee mobilize public support against oppression of American Indians the way Uncle Tom's Cabin had for slaves American Indians are the first true Americans, and their status under the law is unique. The Northwest Ordinance of 1787 specified that "good faith should always be observed toward the Indians," and that their lands and property should be respected. That early respect soon faded, however, and Indians were forced off their lands to make way for the country's westward expansion. The Dawes Act forced assimilation by requiring, among other things, that children be sent away to boarding school. Not until the 1960s did American Indians begin to mobilize. Activists, with the help of the Native American Rights Fund, began filing test cases and winning important victories involving tribal fishing rights, tribal land claims, and taxation of tribal profits. Activists also gained attention with the publication of the best-selling Bury My Heart at Wounded Knee, which helped mobilize public support against oppression of American Indians the way Uncle Tom's Cabin had for slaves.

65 Asian and Pacific Island Americans5.5 Asian and Pacific Island Americans Pan-Asian identity Difficult to forge Free migration to support railroad Chinese Exclusion Act World War II Korematsu v. U.S. Civil Liberties Act One of the most significant difficulties for Asian and Pacific Island Americans has been finding a Pan-Asian identity. Many such Americans identified more strongly with their individual Japanese, Chinese, Korean or Filipino heritage. Some people have even challenged the term "Asian and Pacific Island." In any case, discrimination against Asian and Pacific Island Americans developed over time. When Chinese workers were needed to complete the intercontinental railroad, immigration was opened up. Later, however, Congress passed the Chinese Exclusion Act, which restricted immigration for the Chinese. And when the United States sought to confine Japanese Americans to internment camps during World War II, the Supreme Court ruled it constitutional in the case Korematsu v. U.S. Later, Japanese mobilized to fight for reparations for their treatment during the war. Congress agreed and passed the Civil Liberties Act.

66 Gays and Lesbians 5.5 Don't Ask, Don't Tell Lawrence v. Texas (2003)Revised prohibition of gays in military Ended in 2010 Lawrence v. Texas (2003) Same-sex marriage Obergefell v Hodges Until very recently, gays and lesbians experienced many challenges in achieving anything close to equal rights. However, gays and lesbians have, on average, higher household incomes and educational levels than other minority groups and they have begun converting those advantages into political clout. In 1993, President Bill Clinton tried to ban discrimination against gays and lesbians in the military by creating the Don't Ask, Don't Tell policy. It was a compromise, but the military still discharged thousands on the basis of sexual orientation. This policy was officially ended in 2010, so gays and lesbians can now serve openly. A big victory for equal rights came when the Supreme Court ruled in Lawrence v. Texas that anti-sodomy laws, used to discriminate against gays, were unconstitutional. This garnered additional support for the cause of equality. But when it comes to same-sex marriage, the results have been mixed. Some states have passed legislation allowing for same sex marriage, while others have passed legislation banning same-sex marriage.

67 Americans with Disabilities5.5 Disabled veterans Returning from Korea and Vietnam Americans with Disabilities Act Legal protections against discrimination American Association of People with Disabilities Advocacy group In the aftermath of World War II, many veterans returned home unequipped to handle their disabilities. The Korean and Vietnam wars made this problem even more clear. These veterans saw the success of African Americans and other groups, and they began lobbying for greater protection against discrimination. In response to calls from veterans and others with disabilities, Congress passed the Americans with Disabilities Act in The act extends the protections of the Civil Rights Act to people with a physical or mental impairment that limits one or more life activities. Thus, people with disabilities can't be discriminated against in employment, housing, and other areas. The largest advocacy group for people with disabilities is the American Association of People with Disabilities.