Lecture 5 Quiz

MODEL ANSWERS – Lecture 5

“THE JUDICIARY”

1. A friend of yours wants to become a federal judge. Will your friend have to campaign to be elected? In two sentences, explain the process for becoming a federal judge.

Your friend will not have to campaign to be elected because he does not need to be elected. First he would have to be appointed by the president and then he would have to be approved by the Senate.”

2. How many federal district courts are there, and how many federal courts of appeals?

“There are 94 federal district courts, and 13 federal courts of appeals.”

3. The Supreme Court receives enormous attention, but what percentage of the cases does it actually accept to resolve? Describe the criteria the Supreme Court uses in deciding whether to accept a case.

“The Supreme Court only accepts 1-2% of the cases it is presented with. … If (i) two lower federal [appeals] courts decided differently on the issue, (ii) the federal government is the party asking for review, (iii) the case involves something under the Constitution, or (iv) there is a high public interest as shown by the number of amicus curiae briefs submitted, then the Court is more likely to take the case.”

4. All nine justices on the Supreme Court have an equal vote in deciding the cases. But the Chief Justice has one extra power. What is it?

“The extra power that the Chief Justice has is that he can decide who writes the opinion for his side in the case. The most senior justice on the other side picks who will write the opinion for that side.”

“The Chief Justice’s extra power is to determine the cases on the ‘discuss list’ and to assign the opinion when in the majority of the vote.” [Instructor’s note: when the Chief Justice is in dissent, he only picks the person who writes the dissent]

5. Suppose our political attempts to gain access for homeschoolers to public school activities (bands, sports) have been unsuccessful. We then decide to litigate the issue. What types of claims would we need to raise in order to file a lawsuit in federal court? Give one or two specific examples of claims we might raise.

“In order to file [this] lawsuit in federal court, it would be necessary to raise constitutional or federal law claims. …”

“… Denying non-public school students access to part-time classes denies them due process in their property interest in the free public education provided by the state constitutions (Due Process Clause of the 5th and 14th Amendments). Non-public schools students excluded from par-time activities are unjustifiably discriminated against, denying these students their right to equal protection under the law (Equal Protection Clause of the 14th Amendment).”

“I do not believe that a case can be made to file a lawsuit in federal court on this matter of home schoolers participating in public school extracurricular activities. This issue should be kept as a State matter. In Texas we are have fought this fight for many years. This year a bill was filed in the State legislature, HB214 and SB412. Basically this bill says that homeschool students have the right to enroll in public schools part-time. Home schoolers have the right to use laboratories or other facilities on school campus. Home schoolers have the right to participate in extracurricular activities. Home schoolers do not have to pay fees to use laboratories, or school facilities, or to play sports, or play in the marching band unless there are fees that the full-time public school students have to pay. In that case the part-time students would have to pay a fee of the same amount as the full-time students. This bill also requires that the public schools receive an equal amount of funds for these part-time homeschool students as well as full-time public school students. … Unfortunately this bill did not get passed. It never got out of committee. Hopefully the 79th Texas State Legislature will bring up this bill again and then it will pass. This issue should not be brought up to a federal level it would be a case against federalism. It would be better for each State to fight their own fight.”

6. Read the article in the handout entitled “High Court Baffled on Business Speech.” The Supreme Court “granted cert” in this important case, and then changed its mind in June and refused to resolve the issue. How would you have decided the issue? Explain.

“Nike is not allowed free speech on this issue. … Nike is not protected [in] using sweatshops by free speech. By allowing corporations full extent of free speech [this] may allow things like insider trading to take place. Though we have free speech, some limitations should be placed on it.”

“The Supreme Court had every right to cancel cert. If the Supreme Court decided to hear the case and ruled in favor of the First Amendment, they would land on the slippery slope, and they would not enjoy the way down! Then, according to stare decisis, if another case comes up that’s similar, the Supreme Court would most likely not change their view. Yes, we can have freedom of speech, but countries that have complete freedom of speech are the nullset.”

“I believe that Nike is free to be a company that is founded on lies if it chooses to, if these lies are not false advertising, like claiming to be American-made when they are made on foreign soil. I also believe that Nike critics have the same freedom to speak out regarding the alleged foreign sweat shops, bringing the case before the American people. They may also exercise the freedom of press to move public opinion against Nike. I therefore would not rule against Nike’s freedom of speech.”

7. Read the article in the handout entitled “Ninth Circuit Pulls Over Mexican Trucks.” This decision was by the Court of Appeals for the Ninth Circuit. The government is now attempting to persuade the Supreme Court to review the case. Would you grant cert.? If yes, how would you decide it? Explain.

“Yes, I would grant cert. I would decide that the National Environmental Policy Act of 1969 supercedes NAFTA because the Mexican trucks are polluting the air and our health is much more important than our free trade with Mexico. And also, this case is extremely easy to decide because the NAFTA law states that if it has conflicts with any other federal law, that law will supercede the NAFTA law.”

“I would grant cert. for this case if I was, once again, a member of the Supreme Court. I would agree with the decision of the Ninth Circuit Court of Appeals to keep the trucks from coming into the country. I would, however, write a concurrent opinion concerning the issue of illegal immigration. Because of the number of people coming into America illegally, we not only have a greater number of people who the government supports with welfare money, but also we have possible terrorists sneaking into the country. By securing the borders, our country will less likely to be attacked in the future. In addition, immigrants would not be dying in the back of trucks if they entered the country legally or did not enter the country at all. Therefore, we would not only be saving money for the taxpayers, but also we would be saving lives on both sides of the border.”

“I do not think these Mexican trucks should be able to travel through the country. They are making our roads and highways more dangerous, and they are causing the deaths of people smuggled in the back, as well as potential deaths that may occur as a result of their unsafe driving and cheap, polluting trucks. I would not grant cert because I agree with the Ninth Circuit’s ruling.”

8. Judges have immunity against lawsuits for their mistakes and unjustified rulings. Should citizens be able to sue judges personally? Explain.

“I believe you should be able to sue judges personally, but only if it is a personal offense. For example if the judge smashed your car window then you could sue him personally, but if he made a political error you should not be allowed to sue him because it would create quite a mess in the governmental system!”

“… If citizens were allowed to sue judges then it would severely hinder our justice system and the federal courts from making fair and unbiased decisions.”

“Although it does seem unfair at first, the immunity is necessary, otherwise every time a decision went in a direction that somebody didn’t like, [he] could sue.”

9. Suppose a new federal judge in Southern California announced that he will render all his decisions only in Spanish. Do you object to this? Explain, citing the Constitution if possible.

“I do object to this. It is grammatically impossible to translate the Constitution, its amendments, and federal laws, all written in English, into Spanish and back again.”

“… The Preamble to the Constitution says ‘We the people …’ which suggests national unity. Our coins are stamped with the Latin phrase, ‘E Pluribus Unum’ meaning ‘out of many, one.’ These examples suggest national unity. If the government … begins to declare laws, court decisions, treaties, etc., in languages other than English, our sense of national unity will be lost.”

“… The judge might become biased towards those who speak Spanish. This could result in an unfair decision by the jury or the judge. I think that this would be a violation of the 6th Amendment which states, ‘… the accused shall enjoy the right to a speedy and public trial by an impartial jury.’ I think that even if there is no jury this should still not be allowed because the decision will end up even more biased because it will just be the judges deciding and there is more of a chance of a distorted decision than if there was a jury.”

“… The Constitution doesn’t say one way or the other. It could certainly be construed to support a certain side. …” (citing First and Sixth Amendments)

“I see no reason or clause … saying that the judge has to render his decisions in only English.”

10. In New Jersey, like the federal government and a few other states, state judges are appointed rather than elected. Which do you prefer, elected or appointed judges? Explain your view.

“I would prefer elected judges. The population’s opinion of who should be judge would most likely be different from the president’s point of view. And when the president gets to appoint the judges, he will most likely be doing it for his benefit or so he can become more powerful. We are trying to benefit the people, not the president.”

“Appointed, yet have a term limit. … We have certain limits on how long the president can be in office, so that the may not rule over this land forever, why not do the same for those exercising judicial review? The Judicial Branch is gaining power. How many Roe v. Wade decisions must we go through before we realize just how much damage the Courts can do?”

11. Occasionally the Supreme Court hears an appeal based entirely on its importance. Of those cases that it accepts, what fraction of its decisions would you expect to be upholding the decision below by a majority of six votes or more (i.e., 6-3, 7-2, 8-1, or 9-0)? Possible answers: (i) nearly all, (ii) most, (iii) few, or (iv) nearly none. Explain. (Hint: You won’t find the answer to this anywhere. You have to think about the process for the Supreme Court to accept a case.)

“Nearly none (iv) of the cases in the Supreme Court accepted from lower courts would have a majority of six votes or more. In order for a case to be accepted four justice must want to review it, if it is moving up most likely they want the decision changed. At least four justices want the verdict changed and the others either are undecided or agree with the previous decision. So the chances of a ruling of a lower court being upheld with a six-vote majority after going to the Supreme Court are very slim.”

“I would say nearly none because if they agree with the lower court they do not need to accept the case. They need four votes to accept a case so most likely all four people oppose the lower court’s decision; if all four people vote against the lower court’s decision then there is not 6+ in favor of the lower court.”

12. The Fifth Amendment protects a defendant from testifying against himself. The attorney-client privilege also prevents his attorney testifying against him. For hundreds of years, “marital unity” protected a defendant against his wife testifying against him (or vice-versa). For example, someone accused of spying could not be convicted based on the testimony of the spouse. But the Supreme Court eliminated this “marital unity” privilege in federal court. United States v. Trammel, 445 U.S. 40 (1980). Should an accused spy be convicted based on testimony by the spouse? Address both sides of the issue.

“Yes, because if they did commit the crime, regardless of who testifies, they should be convicted for the crime. No, because the marital relationship is based one extreme trust. If a spouse could be forced to testify against spouse, that would undermine the trust relationship of marriage. Also, spouses might trust each other less if knowing that they could be convicted by their spouse’s testimony. This would not be beneficial to the principles of marriage.”

“… Being married should be like being one in some ways, so you do not have to testify against yourself. I understand where if a spouse had information about their spouse being a spy would be important; but would their reason for testifying against their spouse be the right one.”

” … When two people are married, they join together and become one couple. In essence, they become one person. … This right not to testify in your own trial is guarded in the Fifth Amendment.”