Dale Story 1a1. Courtsa. Court’s Rolesi. Supposedly apolitical—by definition only adjudicates--limits to powers (passive/cannot initiate; President nominates; Congress confirms/passes new laws)ii. Judicial review—Hamilton and Jefferson debate—Marbury v Madison (Federalists/Adams wanted to appoint Marbury as justice of the peace—new anti-Federalist Sect. of State Madison refused—Federalists were more inclined toward strong national government and a strong Supreme Court—Chief Justice John Marshall (Federalist) led the majority that ruled that Madison was not obligated to implement the appointment (a minor loss for the Federalists who had appointed Marbury)—but the majority also ruled that the Court had the power to make such decisions regarding the constitutionality of legislation (laws “in pursuance of the Constitution”—Constitution was the “supreme law of the land”—and the Court settles legal controversies and thus decides Constitutional issues.iii. Limited political role—The policy views dominant on the Court are never for long out of line with the policy views dominant among the lawmaking majorities of the U.S.b. Court and Historical Trends—Pre-Civil War, Marshall & Federalists, broad powers—1880-1930, protected Social Darwinisn, laissez faire, Southern segregation—Depression, FDR and “Court Packing Scheme”—Post-War, Warren Court and the “liberal” establishment.c. Supreme Court Justicesi. Appointment and confirmation processes can be highly politicized.ii. Conservative—Scalia (Reagan), Thomas (Bush sr.), Roberts (Bush jr.), Alito (Bush, jr.)iii. Swing Conservative—Kennedy (Reagan)iv. Swing Liberal—Kagan (Obama, too recent?)v. Liberal—Ginsburg (Clinton), Breyer (Clinton), Sotomayor (Obama)vi. Who did Sotomayor and Kagan (Obama appointees) replace?vii. Which President appointed the Justice that Sotomayor replaced? Which President appointed the Justice that Kagan replaced?d. Organization of Court Systemi. Constitution only establishes the Supreme Courtii. Federal Courts—Federal District Courts (94) are trial courts (fact and law). Circuit Courts of Appeal (11) are the first level of appeal (only the law). The Supreme Court is the final and top level of appeal (law).iii. State Courts—often the same three-tiered organization, though some states do not have the mid-level appellate courts. Also, some states elect judges.2. Court Actionsa. Freedom of speech—“clear and present danger” in Schenck v NY (through 1920s)—“bad tendency” in Gitlow v NY and Dennis v US (1920s-50s)—post-WW II, return to clear and present danger. Bullying vs. freedom of speech. Hate crimes. Libel and slander.i. 2011 case on Church protesting military funerals.b. Freedom of the press—no prior restraint—Near v Minnesota (1931, “malicious” or “scandalous” newspapers allowed)—NY Times v US (1971, Pentagon Papers—a “top secret” US Defense Dept. history of US involvement in Vietnam from 1945 to 1967 allowed to be published—no violation of espionage laws and no evidence of “grave and irreparable” damage—was seen as embarassing to the Administration, showing the Vietnam experience to be a “wrong war,” and that the US public was misled). Confidentiality of sources?c. Pornographyi. Difficult to define. Court has utilized various standards. “I know it when I see it” (Justice Potter Stewart, 1964). No erect penises, no intercourse, no sodomy? Must have “redeeming social importance?” Community standards?ii. Obscenity and offensive language (warning of potentially obscene language, but isn’t that the point?). Depends on context1. Richard Pryor and George Carlin on the word nigger2. Lenny Bruce (Dustin Hoffman in the movie) on the word nigger3. George Carlin on “7 dirty words”—mother fucker, etc.4. Mark Twain and censorship of the word nigger5. Child pornography—lack of free willd. Freedom of religion—Engel v Vitale, 1962, outlawed school prayer. First Amendment: “no establishment of religion” and “free exercise of religion.”i. Founding Fathers and Christianitye. Procedural justice—2 models—DUE PROCESS, Escobedo v Illinois, 1964, right to counsel—Gideon v Wainright, 1963, right to state-provided counsel if indigent—Miranda v Arizona, 1966, must be informed of right to remain silent, that anything you say can be held against you, and right to counsel—traditional doctrines such as innocent until proven guilty, beyond a reasonable doubt, and unanimous vote. LAW AND ORDER, too few cases solved, decisions rendered, and prison sentences enforced. “The hands of the law enforcement agencies and courts are tied by the Due Process decisions.” Weakening of Miranda, etc. (not coerced, spontaneous, implied).f. School desegregation—Brown v Board of Education, 1954, ended “separate but equal” and “with all deliberate speed”—Swann v Charlotte-Mecklenberg Bd. of Educ., 1971, massive bussing OK —de facto v de jure—desegregation v integrationg. Affirmative Action—Bakke (1978, medical school admission, no quotas, but may consider race, etc. as subjective factors), Webber (1979, applied to private sector), Hopwood (1996, UT Law School may not use race as a factor in admission), and Univ. of Michigan case (2003, reversed Hopwood).3. Foreign Public Policya. International Economic Crisisi. Basis of postwar system (Bretton Woods—World Bank, International Monetary Fund, General Agreement on Trade and Tariffs, stable currencies with gold convertibility): Concentration of power; Existence of a cluster of shared interests (liberalism, capitalism, Cold War); and Presence of one dominant power (U.S.) willing and able to leadii. Three reasons for failure: Challenges to power (from Third World and Communist bloc—even multi-national corporations); Lessening of security tensions—détente—no common enemy—dissent on liberal and capitalist beliefs (especially in the Third World); U.S. no longer willing (or able?) to lead (devalued currency, left gold standard)b. New International Economic Order and North (developed)-South (underdeveloped) issuesi. Aid: South wants increases and few strings. Objectives of U.S. foreign aid (in order of importance): National Security (most aid is military); Diplomatic gains; Economic advantages (“dumping,” tied aid, create business links); Reform (Alliance for Progress and human rights); and Humanitarianismii. Transfer of technology. South wants more