Randy’s Jacket

Randy’s Jacket• Randy Phillips is a junior at Winslow

High School. He is originally from Louisiana and moved to Winslow in the 8th grade. On the first cool day of October he wore a jacket that angered some students – a dozen or so went to the office to complain. Mr. Hendsbee told Randy that he had to keep the jacket in his locker and that he could not wear it on school grounds again, citing the school’s dress code. Randy and his parents decide to sue the school on the grounds that the school’s decision violated his 1st Amendment rights to free speech/expression. Who is right?

So….• What is at issue?• Has the school gone too far?• Even if the jacket does have

a racially charged emblem – is that really a problem in Winslow?

• How do we interpret things like this? Who makes the “rule” that all schools now need to follow?

• What if this- guy was fired because of his tattoos?

THE SUPREME COURT OF THE UNITED STATESMichael ThurstonWinslow High School

Unit Topics• Case Briefing• Introduction to the Court

• The Mighty 14th • Meet the Justices• Granting Cert• SCOTUS Nominations• Competing Philosophies

• Moot Court

SCOTUS OVERVIEWMichael ThurstonWinslow High School

The Supreme Court• Only court specifically created in the Constitution

• Chief Justice of the United States (17) and 8 Associate Justices

• Judicial review• Marbury v. Madison• Federalist 78

• John Marshall

Jurisdiction• SCOTUS has both

appellate and original jurisdiction

• Vast majority = appellate – only 1 or 2 original cases each term

• Article III, Section 2 defines original jurisdiction:• Cases involving a state v. a

state• Cases involving ambassadors

and other “public ministers”

How Cases Reach the Court• 8000-10,000 cases appealed each term

• 80-100 heard• “Rule of Four”• If case is denied, the lower court’s decision stands…does NOT mean SCOTUS agrees

• Writ of Certiorari• “To be made more certain”

Oral Argument and Decisions• Term = October to May• Two weeks of argument /

two weeks to consider• 30 minute rule• Briefs

• Filed before oral argument• Merits Briefs• Amicus Briefs

• Solicitor General• Donald B. Verrilli, Jr.

• The Conference

Supreme Court Decisions• Who writes it?• The Opinion of the Court• Concurring Opinions• Dissenting Opinions• Exceedingly valuable

• Opinion of the Court = precedent• Dissent = “…an appeal to the brooding spirit of the law, to the

intelligence of a future day.”• ~Chief Justice Hughes

How Did the 14th Amendment Expand Constitutional Protections of Rights?

14th Amendment - Overview• Civil War roots• Sections 1 & 5 are KEY• Defining a citizen

• Reaction to Dred Scott Case• DUE PROCESS requirement• Procedural Due Process• Substantive Due Process

• EQUAL PROTECTION requirement• Equality of condition v.

equality of opportunity

The 14th Amendment & Incorporation• Incorporation = including

one thing within something else

• 14th now limits state and local governments from restricting rights

• Balance of power in the federal system?

• The Supreme Court began incorporating the Bill of Rights in the 1920’s

Landmark Incorporation Cases• Gitlow v. New York (1925)

• Powell v. Alabama (1932)

• Palko v. Connecticut (1937)

• Griswold v. Connecticut (1965)

Meet the Justices

Chief Justice John Roberts• Age: 58

• Service: 8 years

• Prez: George W Bush

• Leanings: C

Associate Justice Antonin Scalia• Age: 77

• Service: 27 years

• Prez: Ronald Reagan

• Leanings: C

Associate Justice Anthony Kennedy• Age: 77

• Service: 25 years

• Prez: Ronald Reagan

• Leanings: C(mostly)

Associate Justice Clarence Thomas• Age: 65

• Service: 22 years

• Prez: George H. W. Bush

• Leanings: C

Associate Justice Ruth Bader Ginsburg

• Age: 80

• Service: 20 years

• Prez: Bill Clinton

• Leanings: L

Associate Justice Stephen Breyer• Age: 75

• Service: 19 years

• Prez: Bill Clinton

• Leanings: L

Associate Justice Samuel Alito• Age: 63

• Service: 7 years

• Prez: George W. Bush

• Leanings: C

Associate Justice Sonia Sotomayor• Age: 59

• Service: 4 years

• Prez: Barack Obama

•Leanings: L

Associate Justice Elena Kagan• Age: 53

• Service: 3 years

• Prez: Barack Obama

• Leanings: L

Just Remember…• Really Roberts• Scary Scalia• Kids Kennedy• Think Thomas• Girls Ginsburg• Bring Breyer• Allergies, Alito• So Sotomayor• Kiss! Kagen

Nathan Clifford• Age: 210

• Service: 23 years

• Prez: Buchanan

• Leanings: C

GRANTING CERTMichael ThurstonWinslow High School

The Court’s Primary Role• To resolve conflicts in lower courts and interpret the Constitution and laws of the United States.

• “To secure the national rights and uniformity of judgments”.

• -John Rutledge at the Constitutional Convention

Original Jurisdiction

US Circuit Court of Appeals: 12

circuits and Federal Circuit

State Supreme Courts

US District Court – 94 districts (federal trials)

Intermediate appeals court

Trial courts1 million cases

30 million cases

A Slim Chance• 8000-10,000

• About 1% granted

• Fewer than ever

• Last year = 78!

• In forma pauperus = ½ of the appeals, 0.1% granted

The Cert Pool

In the Pool

• Roberts• Scalia• Kennedy• Thomas• Ginsburg• Breyer• Sotomayor• Kagen• 4 clerks X 8 justices = 32 clerks /

9000 petitions = each clerk reads and writes a memo on 280 petitions a year

Not in the pool

• Alito• 4 clerks X 1 justice = 4

clerks / 9000 petitions = each clerk reads and writes a memo on 2250 petitions a year

• So…each case was read and memoed by two clerks – one in the pool and one by Alito’s staff

Advantages & Disadvantages of the Pool

Advantages

• Saves time• Someone is more

thoroughly going over each case

Disadvantages

• Reduces independence – there used to be 9 memos for each case

• Clerks have incredible responsibility and power

The Discuss List• The Chief Justice

generates a discuss list• Other justices may add

to the list• All cases generated by

Solicitor General are automatically discussed

• All capital cases automatically discussed

• Then the “rule of four” applies

Cert-Worthy Cases• Petitions from Solicitor General

• Petitions with several amicus briefs

• Circuit conflict (80%)• Obvious civil liberties issue

• Sui generis = one of a kind

• Affects a large number of people

Reasons to Deny• A better case is in the pipeline

• Petition raises too many questions – the Court like to deal with one issue at a time

• Case is frivolous

The Rankings 1) U.S. Solicitor General

2) Corporations

3) States

4) Organized groups

5) Individuals…though these tend to be the “landmark” cases

Stare Decisis• Latin: to stand by that

which is decided• Precedent • Why so important?• Based on the

assumption that certainty, predictability and stability in the law are the major objectives of the legal system.

Will Roe v. Wade be Overturned?• Read the brief article on Roe v.

Wade• Read the 3 excerpts by Roberts,

Alito, and Thomas• In your group discuss how each

justice seems to feel about the significance of stare decisis – and what that means for Roe v. Wade

• Answer the following:1. Take a quick poll in your group

regarding abortion rights.2. Come to consensus on how each

justice feels about the importance of stare decisis.

3. Answer the question: Will Roe v. Wade be overturned?

SCOTUS Oral Argument• Scheduled by the Clerk of the Court• 30 minute time limit (white & red lights)• Very interactive, and sometimes

heated• Effective oral argument = answering of

questions• Justices have read all the briefs, and

have questions prepared• Justices are really testing the worth of

the written arguments• Many times it becomes a conversation

between the justices through the advocate

• Hypotheticals• Also shows the world that both sides

are being heard.

Today’s Case Study

Competing Judicial Philosophies

Originalism Living Constitution

Originalism• Original meaning of the Constitution• In light of what was meant when the words

were written• Freeze the values in place (1789)• Only the people can make big changes• What if society evolves in a BAD way• The Constitution is a dead document• Strengths:

• Limiting principle• Judges are not elected – and therefore

not directly accountable to the people• The words + Federalist Papers should

be enough• Weaknesses:

• Hard to tell Framer’s intent• Times change• If you apply originalist views to

landmark cases…

Living Constitution(Evolutionist)• Applying your sense of reason to

the case• NOT your personal belief• It’s a judges role to fill in the gaps

of original intent• Times change!• Strengths:

• Better protector of minorities• Adapts the Constitution to current

issues• Weaknesses:

• Are judges making the law rather than interpreting it?

• Are they taking decision making powers away from the people?

SCOTUS NominationsActually ALL Federal Judges!

• President selects, with help of White House counsel

• President interviews• Vetting process• President submits name to

senate• Interest groups get involved• Senate Judiciary Committee

hearings• Committee vote• Full senate vote• Age, ethnicity, endorsements,

legal experience, confirmation prospects

Confirmation Votes• Chief Justice John Roberts78-22• Antonin Scalia 98-0• Anthony Kennedy 97-0• Clarence Thomas 52-48• Ruth Bader Ginsburg 97-3• Stephen Breyer 87-9• Samuel Alito 58-42• Sonia Sotomayor 68-31• Elena Kagan 63-37

Anderson v. Springfield Unified Schools

• Tinker v. Des Moines• Students do not lose rights at the schoolhouse gate, as long as the

speech will not cause a “material disruption.”• Political speech should be protected

• Bethel v. Fraser• Schools may restrict lewd and obscene speech

• Hazelwood vs Kuhlmeier• Schools may restrict speech that is contrary to the school’s mission