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| | The Court heard oral argument from the State of California, which had passed a law limiting the sale of violent video games to children, on Election Day 2010 (the timing was a coincidence, and shows how the Court operates independent from elections). It took the Court longer to decide this case than any other issue that "Term" (the Court term lasts from October through June of the following year, before adjourning for the summer). Finally, on June 27, 2011, the U.S. Supreme Court announced its decision: 5 out of the 9 Justices, a slim majority, | | The Court heard oral argument from the State of California, which had passed a law limiting the sale of violent video games to children, on Election Day 2010 (the timing was a coincidence, and shows how the Court operates independent from elections). It took the Court longer to decide this case than any other issue that "Term" (the Court term lasts from October through June of the following year, before adjourning for the summer). Finally, on June 27, 2011, the U.S. Supreme Court announced its decision: 5 out of the 9 Justices, a slim majority, |
| − | held that violent video games are protected as free speech under the First Amendment, even with respect to their sale to children, and no law can limit their sale or rentals to children.<ref>http://www.scotusblog.com/case-files/cases/eanf/ (The ruling was announced as being 7-2, but it was 5-4 on the issue of whether states can limit the sale of violent video games to children.</ref> Do you agree? | + | held that violent video games are protected as free speech under the First Amendment, even with respect to their sale to children, and no law can limit their sale or rentals to children).<ref>http://www.scotusblog.com/case-files/cases/eanf/ (The ruling was announced as being 7-2, but it was 5-4 on the issue of whether states can limit the sale of violent video games to children.</ref> Do you agree? |
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| | Your instructor was immediately asked by ''USA Today'' to write an editorial about the decision, which it then published.<ref>http://www.usatoday.com/news/opinion/editorials/2011-06-27-Violent-videos-warp-young-minds_n.htm</ref> | | Your instructor was immediately asked by ''USA Today'' to write an editorial about the decision, which it then published.<ref>http://www.usatoday.com/news/opinion/editorials/2011-06-27-Violent-videos-warp-young-minds_n.htm</ref> |
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| | === Court of Appeals === | | === Court of Appeals === |
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| − | There are 13 U.S. Courts of Appeals, numbered 1 through 11, plus D.C., plus a special "Federal Circuit" for handling patent and a few other specialized appeals: | + | There are 13 U.S. Courts of Appeals, numbered 1 through 11, plus D.C., plus a special "Federal Circuit" for handling patent and a few other specific issues: |
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| | *U.S. Court of Appeals for the First Circuit (Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico) | | *U.S. Court of Appeals for the First Circuit (Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico) |
| | *U.S. Court of Appeals for the Second Circuit (Vermont, Connecticut and New York) | | *U.S. Court of Appeals for the Second Circuit (Vermont, Connecticut and New York) |
| − | *U.S. Court of Appeals for the Third Circuit (New Jersey, Pennsylvania and Delaware, plus the US Virgin Islands) | + | *'''U.S. Court of Appeals for the Third Circuit''' (located in Philadelphia, this Circuit handles appeals from New Jersey, Pennsylvania and Delaware, plus the US Virgin Islands) |
| | *U.S. Court of Appeals for the Fourth Circuit (Virginia, West Virginia and North and South Carolina) | | *U.S. Court of Appeals for the Fourth Circuit (Virginia, West Virginia and North and South Carolina) |
| | *U.S. Court of Appeals for the Fifth Circuit (Texas, Louisiana and Mississippi) | | *U.S. Court of Appeals for the Fifth Circuit (Texas, Louisiana and Mississippi) |
| | *U.S. Court of Appeals for the Sixth Circuit (Ohio, Michigan, Kentucky and Tennessee) | | *U.S. Court of Appeals for the Sixth Circuit (Ohio, Michigan, Kentucky and Tennessee) |
| − | *U.S. Court of Appeals for the Seventh Circuit (Indiana, Illinois, Wisconsin) | + | *U.S. Court of Appeals for the Seventh Circuit (Indiana, Illinois and Wisconsin) |
| − | *U.S. Court of Appeals for the Eighth Circuit (Arkansas, Nebraska, Missouri, Iowa and Minnesota) | + | *U.S. Court of Appeals for the Eighth Circuit (Arkansas, Nebraska, Missouri, Iowa, Minnesota, and North and South Dakota) |
| | *U.S. Court of Appeals for the Ninth Circuit (by far the largest Circuit, Alaska, Washington, Oregon, Idaho, Montana, California, Nevada, Arizona, Hawaii, Guam, Northern Mariana Islands) | | *U.S. Court of Appeals for the Ninth Circuit (by far the largest Circuit, Alaska, Washington, Oregon, Idaho, Montana, California, Nevada, Arizona, Hawaii, Guam, Northern Mariana Islands) |
| | *U.S. Court of Appeals for the Tenth Circuit (Colorado, Kansas, Oklahoma, Utah, New Mexico and Wyoming) | | *U.S. Court of Appeals for the Tenth Circuit (Colorado, Kansas, Oklahoma, Utah, New Mexico and Wyoming) |
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| | Several of these Courts of Appeals are known to be conservative-leaning, while others are liberal-leaning in their viewpoint, often reflecting the political views of the region they represent. | | Several of these Courts of Appeals are known to be conservative-leaning, while others are liberal-leaning in their viewpoint, often reflecting the political views of the region they represent. |
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| − | A decision in one Court of Appeal does not bind (control) the decisions in other Courts of Appeals. However, it is common for a Court of Appeal to refer to decisions in other Courts of Appeal when resolving an issue before it, when there is no prior decision in its own Court of Appeal that controls the outcome. | + | A decision in one Court of Appeals does not bind (control) the decisions in other Courts of Appeals. However, it is common for a Court of Appeal to refer to decisions by other Courts of Appeals when resolving an issue before it, when there is no prior decision in its own Court of Appeals that controls the outcome. |
| | | | |
| | ==== Appellate courts use 3-judge panels ==== | | ==== Appellate courts use 3-judge panels ==== |
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| − | Unlike the district court level, where decisions are rendered by only one "trial" judge, the decisions rendered by the Court of Appeals is by a 3-judge panel. It's an odd number to reduce the possibility of a tie vote. | + | Unlike the district court level, where decisions are rendered by only one "trial" judge, the decisions rendered by each Court of Appeals is by a 3-judge panel. It's an odd number to reduce the possibility of a tie vote. |
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| − | In rare cases of immense importance, such as abortion, the losing party may petition all the active judges on a Court of Appeals to "rehear en banc" a decision by a 3-judge panel.<ref>Because of the Ninth Circuit's size, rehearings ''en banc'' in the Ninth Circuit consist of a panel of eleven judges: the chief judge and ten other randomly selected judges [http://www.gmsr.com/article/Taking%20it%20to%20the%20Banc.pdf]</ref> The Court of Appeals for the Eighth Circuit (or "the Eighth Circuit" for short) did exactly that in the past year to overturn a panel decision that favored abortion, and the en banc court voted 7-4 to uphold a good pro-life law in South Dakota. | + | In rare cases of immense importance, such as abortion, the losing party may petition all the active judges on a Court of Appeals to "rehear en banc" a decision by a 3-judge panel.<ref>Because of the Ninth Circuit's size, rehearings ''en banc'' in the Ninth Circuit consist of a panel of eleven judges: the chief judge and ten other randomly selected judges [http://www.gmsr.com/article/Taking%20it%20to%20the%20Banc.pdf]</ref> The Court of Appeals for the Eighth Circuit (or "the Eighth Circuit" for short) did exactly that in the past year to overturn a panel decision that favored abortion, and the en banc court then voted 7-4 to uphold a good pro-life law in South Dakota. |
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| | === District Court === | | === District Court === |
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| − | District Court is the trial level, where cases are decided by juries or by the judge himself. There are a total of 89 districts in the 50 United States (New Jersey and Alaska have only one federal district each, but Oklahoma has three!). There are also district courts in territories of the United States, such as Puerto Rico, where proceedings must be conducted by law in English even though Spanish is the language of that island. | + | District Court is the trial level, where cases are decided by juries or by the judge himself. There are a total of 89 districts in the 50 United States (New Jersey and Alaska have only one federal district each, but Oklahoma has three!). There are also district courts in territories of the United States, such as Puerto Rico, where proceedings must be conducted in English even though Spanish is the language of that island. |
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| − | In federal court, the Seventh Amendment guarantees a right to a jury trial when someone sues for damages. But when a lawsuit is only for an injunction or declaratory relief, such as ordering a school to remove the Ten Commandments, then there is no right to a jury trial, and the judge will conduct a "bench trial" whereby the judge decides the issue. Further, it is possible for both parties to waive their right to a jury trial before a complaint is filed (such as in a contract) or afterwards (by failing to timely request a jury trial). | + | In federal court, the Seventh Amendment guarantees a right to a jury trial when someone sues for damages. But when a lawsuit is only for an injunction or declaratory relief, such as ordering a school to remove the Ten Commandments, then there is no right to a jury trial, and the judge will conduct a "bench trial" whereby the judge decides the issue. Furthermore, it is possible for both parties to waive their right to a jury trial before a complaint is filed (such as in a contract) or afterwards (by failing to timely request a jury trial). |
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| − | There is much strategy among attorneys in choosing whether they prefer a jury trial or a bench trial, and some surprising views on the topic. A study found, for example, that often a criminal defendant is better off with a bench trial. | + | There is much strategy among attorneys in choosing whether they prefer a jury trial or a bench trial, and there are some surprising views on the topic. A study found, for example, that often a criminal defendant is better off with a bench trial. |
| | | | |
| | === "Article III Judges" === | | === "Article III Judges" === |
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| − | "Article III" judges are those appointed by the President and confirmed by a majority of the U.S. Senate to lifetime tenure as federal judges, either at the district court level, the Court of Appeals, or the U.S. Supreme Court. They are not elected and they can only be removed from office if impeached by the Senate, which is rare and has never been done due to how they decided a case. | + | "Article III" judges are those appointed by the President and confirmed by a majority of the U.S. Senate to lifetime tenure as federal judges, to either the district court, a Court of Appeals, or the U.S. Supreme Court. They are not elected and they can only be removed from office if impeached by the Senate, which is rare and has never been done due to how they decided a case. |
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| − | There are also non-Article III judges, such as magistrate and bankruptcy judges. They are appointed for a fixed term (such as eight years), which can be renewed. These are not jobs guaranteed until they retire. Magistrate judges can conduct jury trials only if both sides to the dispute consent. | + | There are also non-Article III judges, such as magistrate and bankruptcy judges. They are appointed for a fixed term (such as eight years), which can be renewed. These jobs are not guaranteed until they retire, as Article III jobs are. Magistrate judges can conduct jury trials only if both sides to the dispute consent. |
| | | | |
| | === State Courts === | | === State Courts === |
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| | Each State also has its own court system. Most states have elected judges, but some (including New Jersey) do not. In New Jersey, a judge is appointed by the Governor and confirmed by the Senate, and after a fixed period of years comes up for renewal. Only if he is renewed does he enjoy the equivalent of "tenure" or a lifetime job. | | Each State also has its own court system. Most states have elected judges, but some (including New Jersey) do not. In New Jersey, a judge is appointed by the Governor and confirmed by the Senate, and after a fixed period of years comes up for renewal. Only if he is renewed does he enjoy the equivalent of "tenure" or a lifetime job. |
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| − | Judges tend to be more conservative if they are elected, because voters tend to be more conservative than most lawyers. In the South (and in New York) the state judges are elected. It can be startling to an attorney to learn that a judge in his case lost reelection, and his case must be reassigned! | + | Judges tend to be more conservative if they are elected, because voters tend to be more conservative than most lawyers. In the South (and in New York) the state judges are elected. When judges are elected, their cases must be reassigned to other judges upon losing reelection. |
| | | | |
| | == Judicial Activism == | | == Judicial Activism == |
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| − | The "Warren Court" (the Supreme Court when its Chief Justice was Earl Warren) lasted 16 years, from 1953 to 1969, and became known for its liberal "judicial activism." It banned school prayer (''Engel v. Vitale''). established expansive new rights from criminal defendants, such as the "Miranda warning" ("you have the right to remain silent ...."), the exclusionary rule (evidence seized improperly cannot be used against a defendant in court, and the right of most criminal defendants in state court to have an attorney provided for them at taxpayer expense.<ref>There is no right to a court-appointed attorney to defend against petty crimes and misdemeanors, such as traffic tickets.</ref> The Miranda Court also ordered states to require roughly equal populations in state legislative districts. In general, the Miranda Court declared new "rights" to exist in the Constitution that are not expressly there, under a view that the meaning of the Constitution is "evolving" rather than fixed at the time it was written. | + | The "Warren Court" (the Supreme Court when its Chief Justice was Earl Warren) lasted 16 years, from 1953 to 1969, and became known for its liberal "judicial activism." It banned school prayer (''Engel v. Vitale''), established expansive new rights for criminal defendants, such as the "Miranda warning" ("you have the right to remain silent ...."), the exclusionary rule (evidence seized improperly cannot be used against a defendant in court), and the right of most criminal defendants to have an attorney provided for them at taxpayer expense.<ref>There is no right to a court-appointed attorney to defend against petty crimes and misdemeanors, such as traffic tickets.</ref> The Warren Court also ordered states to redraw their state legislative districts in order to make them equal in size by population, which hurt the more conservative rural districts by requiring them to include more liberal city populations in their districts. In general, the Warren Court declared new "rights" to exist in the Constitution that are not expressly there, under a view that the meaning of the Constitution is "evolving" rather than fixed at the time it was written. |
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| − | Republican presidential candidates successfully campaigned against "judicial activism" by the U.S. Supreme Court, and many agree that some of its decisions -- particularly banning school prayer -- were extremely hurtful to the United States. | + | Republican presidential candidates successfully campaigned against "judicial activism" by the U.S. Supreme Court, and many agree that some of its decisions -- particularly banning school prayer -- have been extremely hurtful to the United States. |
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| − | Even Thomas Jefferson made an issue of "judicial activism" as long ago as his successful campaign for president in 1800. Jefferson preferred "strict constructionism," meaning that the powers given by the Constitution to Congress should be interpreted narrowly.
| + | This issue is not new: even Thomas Jefferson complained about "judicial activism" as long ago as his successful campaign for president in 1800, and Jefferson then unsuccessfully insisted that a U.S. Supreme Court Justice be impeached and removed from office based on his decisions (Samuel Chase, who was a signer of the Declaration of Independence). Jefferson preferred "strict constructionism," meaning that the powers given by the Constitution to the federal government should be interpreted narrowly. |
| | | | |
| | == Political and legal terminology == | | == Political and legal terminology == |
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| − | There are many unusual political and legal terms, and new ones that are created almost every year. Often these terms are taken from ordinary usage but given a special meaning in the political or legal context. | + | There are many unusual political and legal terms, and new ones are created almost every year. Often these terms are taken from ordinary usage but given a special meaning in the political or legal context. |
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| − | For example, the term "trial balloon" has an important political meaning: it refers to "leaking" a planned decision to the media to see the public reaction is negative before the decision is officially announced, much like floating a balloon into the air to see if it pops. If the public reaction is negative to a "trial balloon," then the politician can change the decision before officially making it. He can even claim that the advance "leak" of the news of the decision was false, despite having privately authorized it himself. | + | For example, the term "trial balloon" has an important political meaning: it refers to "leaking" a planned decision to the media to see if the public reaction is negative before the decision is officially announced, much like floating a balloon into the air to see if it pops. If the public reaction is negative to a "trial balloon," then the politician can change the decision before officially making it. He can even claim that the advance "leak" of the news of the decision was false, despite having privately authorized it himself! |
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| − | There are many more tricks about politics, which are aptly described by other terminology. Once you'll be hearing about in the next six weeks in the media is the term "coattails", which refers to how the success of a presidential candidate can lift members of his same political party to success when they are on the same ballot for other offices. If Obama does well on Election Day, then his "coattails" may cause Democratic Senate candidates to win also; the converse will likely be true if Romney does well on Election Day. Ronald Reagan had enormous coattails in the Election of 1980, but less of a coattail effect when he won by an even bigger margin in 1984. | + | There are many more tricks in politics, which are aptly described by other terminology. Once you'll be hearing about in the next six weeks in the media is the term "coattails", which refers to how the success of a presidential candidate can lift members of his same political party to success when they are on the same ballot (for other offices). If Obama does well on Election Day, then his "coattails" may cause Democratic Senate candidates to win also; the converse will likely be true if Romney does well on Election Day. Ronald Reagan had enormous coattails in the Election of 1980, but less of a coattail effect when he won by an even bigger margin in 1984. |
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| | == Homework == | | == Homework == |
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| | 1. Describe the process for a case (lawsuit) in federal court, including where a federal case begins, where the first level of appeal is, and where the second possible level of appeal would be. Give a hypothetical example picking a beginning location in the nation for the case (e.g., New Jersey). | | 1. Describe the process for a case (lawsuit) in federal court, including where a federal case begins, where the first level of appeal is, and where the second possible level of appeal would be. Give a hypothetical example picking a beginning location in the nation for the case (e.g., New Jersey). |
| | <br>2. What is the Rule of Four? | | <br>2. What is the Rule of Four? |
| − | <br>3. Are federal judges elected? Should they be? Give an example of a non-Article III judge. | + | <br>3. Are federal judges elected? Should they be? Also, give an example of a non-Article III judge, and explain what that term means. |
| | <br>4. What are the two types of cases that are litigated in federal courts? | | <br>4. What are the two types of cases that are litigated in federal courts? |
| | <br>5. Discuss the influence of the media on politics. | | <br>5. Discuss the influence of the media on politics. |
| | <br>6. Do you think it was smart for the Framers of the U.S. Constitution to agree to withhold information from the media during the Constitutional Convention? Explain. | | <br>6. Do you think it was smart for the Framers of the U.S. Constitution to agree to withhold information from the media during the Constitutional Convention? Explain. |
| − | <br>7. "All issues are political issues" - George Orwell. Do you think this can be true even for sports, entertainment, or fast food? Pick an example and discuss it. | + | <br>7. "All issues are political issues," observed George Orwell. Do you think this can be true even for sports, entertainment, or fast food? Pick an example and discuss it. |
| − | <br>8. Explain why the U.S. Supreme Court "granted cert." in the violent video game case, and whether you agree with its final decision on the issue. What is the other reason that the U.S. Supreme Court grants cert.? | + | <br>8. Explain the two bases on which the U.S. Supreme Court grants cert, and which one it likely used in granting cert in the violent video game case. |
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| | '''Extra credit''' (answer two of the following four questions): | | '''Extra credit''' (answer two of the following four questions): |
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| − | 9. Recently Apple won a billion-dollar patent case in federal district court in California against Samsung based on claims that Samsung had violated patents owned by Apple for the iPhone. Which court would handle this appeal? (Think about this question carefully before answering.) | + | 9. Recently Apple won a billion-dollar patent case in federal district court in California against Samsung based on claims that Samsung had violated patents owned by Apple for the iPhone. Which court would handle the appeal? (Think about this question carefully before answering - many attorneys would give an incorrect answer.) |
| | <br>10. Where is the pardon power in the U.S. Constitution (include section and clause numbers), and upon whom does it confer the power to pardon? Was Governor Chris Christie acting pursuant to this power when he commuted Aitken's sentence? Explain. | | <br>10. Where is the pardon power in the U.S. Constitution (include section and clause numbers), and upon whom does it confer the power to pardon? Was Governor Chris Christie acting pursuant to this power when he commuted Aitken's sentence? Explain. |
| − | <br>11. Would a lawsuit by students demanding the right to establish a Bible club be brought in federal or state court? Would he want a jury trial? Explain. | + | <br>11. Would a lawsuit by students demanding the right to establish a Bible club be brought in federal or state court? Which increase the likelihood of success in such a case: a jury trial or a bench trial? Explain. |
| − | <br>12. One federal appellate judge, whose decisions had been reversed by the U.S. Supreme Court more than any other judge, quipped "they can't catch them all." What did he mean by that, and was he right? | + | <br>12. One federal appellate judge, whose decisions had been reversed by the U.S. Supreme Court more than any other judge, quipped words to the effect "it can't catch them all." What did he mean by that, and was he right? |
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| | You can post your answers at [[American Government Homework Three]]. | | You can post your answers at [[American Government Homework Three]]. |