You will prepare a 5 minute presentation on a Supreme Court Case that explains:
1. The issue before the court
2. The parties involved
3. The historical frame the case was heard within
4. The arguments from both side
5. The court decision
6. A brief summary of the majority opinion
7. A brief summary of the dissenting opinion (if any)
8. The impact of the case on American society
9. Any special features unique to the case
Your choices are below, one per student, first come, first serve. Place your choice in the comments section below.
Mapp v. Ohio Roe v. Wade Gitlow v. New York DC v. Heller Schenck v. US Marbury v. Madison Tinker v. Des Moines
Regents of the U. of California v. Bakke
New York Times v. United States
Bush v. Gore
Gibons v. Ogden
You may use a poster, powerpoint, prezzi, or video to present your case.
You will prepare a 5 minute presentation on a Supreme Court Case that explains:
1. The issue before the court
2. The parties involved
3. The historical frame the case was heard within
4. The arguments from both side
5. The court decision
6. A brief summary of the majority opinion
7. A brief summary of the dissenting opinion (if any)
8. The impact of the case on American society
9. Any special features unique to the case
Your choices are below, one per student, first come, first serve. Place your choice in the comments section below.
Mapp v. Ohio Roe v. Wade Gitlow v. New York DC v. Heller Schenck v. US Marbury v. Madison Tinker v. Des Moines
Regents of the U. of California v. Bakke
New York Times v. United States
Bush v. Gore
Gibons v. Ogden
Patterson v. Alabama
You may use a poster, powerpoint, prezzi, or video to present your case.
The Supreme Court has the power to make and change policies that affect the lives of all Americans. However, many judges and scholars support the idea of judicial restraint, a philosophy that judges should play a minimal role in policymaking. They believe that judges should simply decide cases and leave the duty of policymaking to the legislature. Others, who feel the Court should make bold policy decisions and possibly even break new constitutional ground, support judicial activism. These people believe the Supreme Court should correct policy errors that contribute or lead to social and political injustice.
Those who believe that judicial activism is necessary often point to the landmark civil rights case Brown v. Board of Education of Topeka (1954). They claim that state legislatures and Congress have been too slow to create policies that prohibit discrimination and segregation. They argue that without the activism of the Court, it would have taken the nation much longer to emerge from segregation. Proponents of activism also point to the protection of other civil rights. They argue that without the Court advocating for the accused, that the poor, the illiterate, and the minorities would be falsely imprisoned.
Opponents of activism argue that the Supreme Court has no constitutional basis for legislating. They argue that judges possess no special background or qualities that make them experts in the areas of social, political, or economic reform. Moreover, they stress that because judges are appointed, not elected by the people, they are not directly accountable to the people.
Historically, Supreme Courts that lean toward the exercise of judicial restraint tend to avoid becoming involved with controversies. To avoid deciding overly political cases, the Court has developed the doctrine of political question. The doctrine is cited when the Court feels that an issue should be left entirely to another branch of government. A restrained court uses the doctrine of political question frequently.
The United States' president and Congress each hold a great deal of political power, but their authority is checked by the Supreme Court. The Supreme Court is responsible for interpreting the Constitution and ensuring that subsequent acts and laws conform to the founders' original intent when they created the Constitution. Serving on the Supreme Court is one of the highest honors a person can attain in this country and an achievement that does not come easily.
The modern Supreme Court consists of eight associate justices and one chief justice. Each of these nine members is nominated by the President of the United States and confirmed by the Senate. Although judicial experience is not required to serve as a Supreme Court justice, all of the current justices had extensive experience as attorneys and judges before being nominated to the Supreme Court. In fact, the Constitution makes no reference to qualifications for justices, nor does it impose limits on a justice's tenure, except to state in Article III, Section I that a justice has life tenure to serve the Court "during good behavior."
When a vacancy occurs on the Supreme Court, the president considers his options carefully when nominating a replacement. The process of selecting members of the Court is highly political and controversial and requires compromise between the president, who makes the appointment, and the Senate, who confirms the appointment. If the chief justice's position is vacant, the president can consider the associate justices as suitable replacement candidates or may look outside the Court for a replacement.
For example, the current Chief Justice, William Rehnquist, was an associate justice when President Ronald Reagan nominated him to fill the chief justice spot vacated by Warren Burger. Earl Warren, placed on the Court by Dwight Eisenhower, had been governor of California and a prosecuting attorney but had never served on the court. Several justices in the twentieth century entered the Court after highly successful careers as lawyers who argued before the Court. Louis Brandeis was famous for the "Brandeis Brief," Thurgood Marshall was noted for his successful civil rights litigation concluding in the Brown v. BOE of Topeka case, and Abe Fortas had a distinguished career successfully arguing the Gideon v. Wainwright case.
After the president nominates an associate justice or a chief justice, the individual must go through a senatorial confirmation process before being seated in their new position—even if a chief justice nominee is serving on the Supreme Court. This ensures that the "checks and balances" concept of government applies to the judiciary system and that neither the president nor Congress has too much power in the appointment and confirmation process.
A president will typically look to his own political party to find a suitable nominee, since members of the same party usually share similar ideologies when interpreting the Constitution and taking positions on political issues. Presidents and their advisors may apply the "litmus test" to a potential nominee. Applied to politics, a litmus test is used to choose a candidate based on whether his or her views are liberal or conservative on a single, divisive issue such as women's reproductive rights or gay marriage. Senators, who must vote to approve a nomination, may apply their own litmus tests by reviewing a nominee's previous statements and writings to make an educated guess on how the nominee would perform if the appointment is confirmed.
Although the president, his staff, and the Senate will analyze a candidate's background, a sitting Supreme Court justice is under no obligation to concur with anyone's viewpoints—even those of the individuals who played major roles in getting him seated on the Supreme Court. Any number of factors can affect a justice's ruling, including major world events that change the mindsets of the justices and influence public opinion.
Moreover, justices occasionally have to make rulings that disagree with their personal beliefs but that uphold the Constitution. For example, in Texas v. Johnson from 1989, the Supreme Court upheld the First Amendment right of Gregory Johnson to burn the American flag. Their decision did not reflect their personal beliefs on flag-burning, but they were obligated to rule in Johnson's favor based on the First Amendment. Still, a president holds some expectation that the candidate he nominates will reflect his party's beliefs in his or her rulings. Because of this, several justices have disappointed the presidents who appointed them.
Political ideology is not the only reason presidents typically look to their own party first for potential candidates. A president can use federal judgeship appointments to reward partisan backers for their support during the president's campaign. One example of this occurred in 1952, when Earl Warren helped get Dwight Eisenhower elected, so Eisenhower promised Warren that he would receive the first Supreme Court nomination that came available. Warren was named chief justice of the Supreme Court in 1953, although President Eisenhower came to regret the nomination because Warren's liberal actions were not in line with the moderate conservative ideals Eisenhower expected from him.
The president also considers a number of other factors when selecting a justice candidate. Although there is no quota for the demographic makeup of the Supreme Court, there have been many references to the "black seat," "Jewish seat," and "female seat" over the years. These classifications refer to the tendency of presidents to represent certain powerful minority groups on the Supreme Court. Thurgood Marshall was the first African American to take a seat on the Court in 1967. When he left the bench in 1991, he was replaced by another African American, Clarence Thomas, which further reinforced the perception of a "black seat." The concept of a Jewish seat has been less definite. The first Jewish appointee was Louis Brandeis in 1916, but there were gaps of time without a Jewish justice on the Supreme Court in subsequent years.
The first female justice was Sandra Day O'Connor. Ronald Reagan had committed to appointing a woman to the Supreme Court if he was elected to the presidency, and O'Connor reaped the benefit of that promise in 1981. The current Court has three female justices— Justice Ruth Bader Ginsberg, Sonia Sotomayer, and Elana Kagan. Promises to nominate justices from these minority groups may help a presidential candidate or a president running for re-election gain favor with his supporters and therefore may play a role in determining who is nominated to the Court.
During the first several years of the Supreme Court's existence, it languished under the guidance of chief justices such as John Jay. Jay was the primary author of the New York state constitution, one of the writers of the Federalist Papers, and a fervent patriot. In 1789, Washington appointed Jay the first chief justice. However, few cases were brought before the Court, the political leaders of the time considered it insignificant, and the Court had very little power in comparison to the legislative and executive branches. Jay resigned as chief justice to become governor of New York in 1795, a position for which he actively campaigned while serving as chief justice.
The Court took a step forward in 1801, when John Marshall became chief justice. Marshall recognized that the Court needed to take its proper place as one of the three equal branches of government and that the Court could act as a major policy shaper for the nation. Marshall's agenda for the Court included expanding the power of the Court, helping the nation expand its fledgling capitalism, and imposing the doctrine of national supremacy over the states. He served as chief justice for 34 years, from 1801 to 1835. Although he had six colleagues on the Supreme Court, Marshall's position as chief justice—along with his personality, legal prowess, and will—resulted in many rulings that reflected his personal interpretation of the Constitution and his belief in a powerful central government. Some of his most famous cases include Marbury v. Madison, Fletcher v. Peck, McCulloch v. Maryland, and Gibbons v. Ogden.
In the case of Marbury v. Madison (1803), Marshall ruled on the legality of the appointment of a set of " judges" by outgoing President John Adams in an attempt to place Federalist judges on the bench before leaving the presidency. Marshall used this case to establish the doctrine of judicial review, which gave the courts power to determine whether acts of the government are constitutional. The doctrine of judicial review was extended in Martin v. Hunter's Lessee (1816), a case that concerned the confiscation of Loyalists' property by the state of Virginia during the American Revolution. Denny Martin, one of the Loyalists whose property was confiscated, sued on the grounds that treaties with the British guaranteed the protection of this property. The Virginia court upheld the confiscation, but the case went to Marshall and the Supreme Court on appeal. Marshall reversed this decision, and by doing so enforced the right of the Supreme Court to reverse decisions of state courts. Marshall's ruling upheld the supremacy clause of the Constitution.
The case of Fletcher v. Peck (1810) concerned a dispute between John Peck and Robert Fletcher over the validity of a contract regarding the sale of a plot of land in Georgia. The Marshall Court declared the sanctity of contracts and secured the basis of capitalism in private enterprise. This ruling clearly asserted the Supreme Court's right to invalidate state laws that conflict with the Constitution. Fletcher v. Peck was affirmed in the case of Dartmouth College v. Woodward (1819). In this case, the New Hampshire legislature attempted to change DartmouthCollege from a private institution into a state university. After being stripped of their ability to control resources, old trustees of the college filed suit. They claimed that it was unconstitutional for the New Hampshire legislature to interfere with the college's corporate charter, because it was a form of a contract. The Marshall Court confirmed the Court's power of judicial review and ruled that the Constitution protects contracts against state encroachments. Article I, Section 10 of the Constitution provides that "no State shall...pass any...Law impairing the Obligation of Contracts." As Georgia and New Hampshire attempted to control the property within their borders, Marshall's Court reversed the state decisions, upheld the rights of private corporations and contracts, reaffirmed the power of judicial review, and established the supremacy of the Constitution over the states.
The "bank case" of McCulloch v. Maryland (1819) is often considered John Marshall's single most important interpretation of the Constitution because it dealt with the division of power between the federal government and the states. This landmark case addressed whether or not Congress has the power to create a national bank. The state of Maryland charged the Baltimore branch of the Bank of the United States, a bank created by Congress, a hefty tax. The Baltimore branch refused to pay, and Maryland brought suit against the chief bank employee, called the "head cashier," John W. McCulloch. Marshall used the implied powers of Article I, Section 8, Clause 18, the necessary and proper clause, to enable Congress to enact legislation within the spirit of the Constitution. This case gave the federal government supremacy over the states regarding intrastate business. According to Marshall, "the power to tax is the power to destroy." By upholding the constitutionality of the Bank of the U.S. and the constitutional right of Congress to use the implied powers of the elastic clause, Marshall set the standard for federal supremacy.
A related case, Cohens v. Virginia (1821), concerned an act of Congress that authorized the operation of a lottery in the District of Columbia. The Cohen brothers violated state law by purchasing D.C. lottery tickets and selling them in the state of Virginia. Virginia authorities tried and convicted the Cohens, and then declared themselves the final authority in the dispute between the states and the national government. In this case, Marshall held that the Supreme Court had jurisdiction to review state criminal proceedings and declared that by ratifying the Constitution, the states gave up some sovereignty and must accept the jurisdiction of the federal government. Cohens v. Virginia reaffirmed the Supreme Court's right to review all state court judgments in cases involving the Constitution or powers of the federal government.
In Gibbons v. Ogden (1824), also called the "Steamboat Case," Aaron Ogden purchased exclusive rights to operate a ferry between New York and New Jersey. When Thomas Gibbons, who held a federal trade license, set up a competing line, Ogden sued him. In this case, Marshall invalidated state monopolies and declared that only Congress can control interstate commerce. This ruling ended the battle between the states over commerce and allowed the uniform growth of business regulated by the national government. Marshall's decisions acknowledged the idea of judicial limitation on legislative powers and made the Supreme Court a vital part of America's system of government. Marshall served as chief justice until his death in 1835, at which time Andrew Jackson appointed Roger Taney. Although he maintained most of Marshall's positions, he was a "states' rights" judge who was less in favor of the doctrine of national supremacy than was Marshall. Taney served as chief justice from 1836 to 1864.
Taney is most well known for his controversial decision in the case of Scott v. Sandford (1857). Taney found that Dred Scott, a slave who claimed to be free, was legally still a slave. This decision repealed the Kansas-Nebraska Act as well as the Missouri Compromise. The Dred Scott case threw the nation into a tailspin that resulted in the Civil War. Following the war, the Scott v. Sandford decision led to the Thirteenth Amendment, which gave freedom to former slaves, and to the Fourteenth Amendment, which guaranteed citizenship with equal protection and due process for all citizens.
The principle that members of the executive branch of government cannot legally be forced to disclose their confidential communications when such disclosure would adversely affect the operations or procedures of the executive branch.
Executive privilege is the exemption of the executive branch of government, or its officers, from having to give evidence, specifically, in U.S. law, the exemption of the president from disclosing information to congressional inquiries or the judiciary. Claims of executive privilege are usually invoked to protect confidential military or diplomatic operations or to protect the private discussions and debates of the president with close aides. Efforts by various presidents since Eisenhower to gain absolute and unqualified privilege have been rejected by the courts, though they remain inclined to support most claims of executive privilege. Where criminal charges are being brought against a president, as in the case of Richard Nixon, the claims of executive privilege are weakest; during the process leading to the impeachment of President Bill Clinton, numerous claims made by the White House were dropped when it was clear courts would not uphold them.
Executive privilege is a claim asserted by the President of the United States and other members of the executive branch to justify withholding of documents and information from other branches of government. As Presidents since George Washington and Thomas Jefferson have argued, the separation of powers embodied in the United States Constitution implies that each branch will be permitted to operate within limits free to some degree from the control or supervision of the other.
The concept of executive privilege is a legally murky one, since the Constitution does not mention it anywhere. The history of the doctrine underscores that point, since Presidents have generally sidestepped open confrontations with Congress and the courts over this issue by first asserting the privilege, then producing some of the documents requested on an assertedly voluntary basis. Jefferson set the precedent for this in the trial of Aaron Burr for treason in 1807. Burr asked the court to issue a subpoena to compel Jefferson to provide his private letters concerning Burr. Chief Justice John Marshall, a strong proponent of the powers of the federal government but also a political opponent of Jefferson, ruled that the Sixth Amendment to the Constitution, which allows for these sorts of court orders for criminal defendants, did not provide any exception for the President. As for Jefferson's claim that disclosure of the document would imperil public safety, Marshall held that the court, not the President, would be the judge of that. Jefferson complied with Marshall's order, but claimed he was doing so voluntarily. President William Clinton did the same when agreeing to testify before the grand jury called by Independent Counsel Kenneth Starr only after negotiating the terms under which he would appear.
The Supreme Court addressed the executive privilege in United States v. Nixon, the 1974 case involving the demand by Watergate special prosecutor Leon Jaworski that Richard Nixon produce the audiotapes of conversations in the Oval Office of the White House in connection with criminal charges being brought against members of the Nixon Administration. Nixon invoked the privilege and refused to produce any records.
The Supreme Court did not reject that claim out of hand; it noted, in fact, "the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties." As the Court stated, "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process." This is very similar to the logic that the Court had used in establishing an "executive immunity" defense for high office-holders charged with violating citizens' constitutional rights in the course of performing their duties.
The Court did not, on the other hand, accept Nixon's privilege argument on the facts of that case. Because Nixon had asserted only a generalized need for confidentiality, the Court held that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence.
Many Americans today have a negative perception of the federal bureaucracy. They consider it a huge, immovable object that hinders progress and intrudes on their lives. Most Americans believe the federal bureaucracy has grown in the last few decades to an enormous size. This is a misperception. Since the 1960s, the size of the federal bureaucracy has been very stable. By contrast, however, state and local bureaucracies have grown steadily since World War II, reflecting the increasing extent to which federal programs are administered by the states.
Most Americans also feel that the federal bureaucracy is very wasteful. Whistle-blowers and reports of abuses fuel this perception of waste, which does sometimes occur. The late Senator William Proxmire of Wisconsin was famous for his "Golden Fleece" awards given to departments and individuals for wasteful spending he found in the bureaucracy. Senator Proxmire's focus on spending abuses helped end many wasteful and unwise practices.
Writing in the first decades of the twentieth century, the German sociologist Max Weber theorized on governments, institutions, and bureaucracies. Weber believed that bureaucracies function to implement the policies of elected government in a rational, efficient, non-partisan manner. He felt that workers in bureaucracies develop specific expertise and technical knowledge that could not be acquired in the relatively short tenure of elected or appointed policy makers. He also felt that they possess critical knowledge about the history and practice of their agency within the larger framework of government and society and that they provide continuity from one administration to the next, which is essential for an orderly transfer of power under rule of law. Leadership may change, but the engine of government does not falter on account of having a new driver in a government that possesses a strong bureaucracy.
Weber identified the structure of a bureaucracy as a hierarchical pyramid with levels of rank and power and a single director at the top. He said bureaucratic jobs tend to require specialized knowledge, such as accounting, statistics, economics, or health care. Obtaining a position within a bureaucracy is ideally based on merit for performing the job rather than on other factors, such as being a friend or relative of someone with "pull" or being owed a political or financial favor.
Modern theorists feel that while Weber made some good observations about bureaucracies, he did not sufficiently address the manner in which bureaucracies function in government. Bureaucracies tend to resist change because change uses resources and introduces unknown elements into the system. For this reason, a bureaucracy is often at odds with elected officials and their appointees, who by contrast often get elected or appointed on a promise to implement change. To minimize the effects of leaders who come and go, a bureaucracy will tend to seek power of its own and uses its power, for the most part, to maintain the status quo. When asked to change, bureaucracies often respond with a request for more people and resources rather than with a plan to restructure or become more efficient. In this way, bureaucracies can become large, cumbersome, and complex if they are not required to account for their own practices.
Bureaucracies tend to be monopolistic because it makes little sense to have more than one government agency performing the same function. Complaints about bureaucratic monopolies are generally the same as for corporate monopolies—without competition or some strict means of regulation, a monopoly becomes inefficient at best and tyrannical at worst.
Government bureaucratic monopolies can have competition from private sources. The U.S. Post Office, Amtrak, and NASA are all government monopolies. Until recent decades, the U.S. Post Office was by law the only carrier of mail and parcels. Private companies that felt they could deliver packages at a profit lobbied for a change in the law to allow private carriers. Now there are several parcel delivery companies that are very successful and profitable.
Nearly all of the federal government's work was accomplished through Cabinet departments until the 1880s when Congress began establishing agencies that were positioned outside the Cabinet departments. Among these agencies are the independent regulatory commissions that were created to protect public interest by developing and enforcing rules. These agencies, which have powers similar to legislative and judicial bodies, regulate certain sectors of the nation's economy. While they operate outside the executive branch, regulatory agencies are headed by a board or commission whose members are appointed by the president and confirmed by the Senate. The Interstate Commerce Commission (ICC) was one of the first regulatory agencies designed to help protect the public interest. Established in 1887 by the Interstate Commerce Act, the agency became the regulatory body for railways, buses, trucks, pipelines and inland waterway traffic. At its inception, the ICC issued licenses and regulated transportation routes and rates. The agency's role was diminished during the deregulation movement of the 1980s and it was eliminated in 1996 by the ICC Termination Act. It was not the only agency to fall victim to deregulation—The Civil Aeronautics Board, created in 1938 to regulate commercial air traffic, was abolished by Congress in 1985. The Federal Communications Commission (FCC) was established in 1934. When it was established, the FCC oversaw the telegraph, telephone, and radio industries. Today, the commission regulates telephone, radio, and television, as well as microwave and satellite transmission. The five-member board licenses the public airwaves, sets broadcast standards, and hears cases on telephone rates.
Established in 1914, the Federal Trade Commission (FTC) regulates business activity by enforcing anti-trust laws and protecting consumers from unfair trade practices. The FTC monitors companies for price fixing and dishonest labeling of products. It also monitors financial agencies for compliance with truth-in-lending laws. The five commissioners divide their time between competitive practices, consumer protection, and economic issues. The FTC provides Congress and the executive branch with detailed reports on the nation's economic growth and business activity.
The Securities and Exchange Commission (SEC) was established in 1934 as part of President Roosevelt's New Deal policy initiatives. Its five-member board oversees the stock and commodities markets by establishing and enforcing strict trading rules. The SEC monitors the activities of holding companies, represents investors at bankruptcy hearings, monitors mutual funds, and regulates the sale of stock on margin.
The Wagner Act established the National Labor Relations Board (NLRB) in 1935, with the goal of resolving labor disputes. The five-member NLRB has the power to issue complaints, petition the courts for injunctions, obtain settlements, and ensure worker compliance with court orders. The board also conducts secret ballot elections when workers vote for or against unionizing a company, and it helps settle issues when more than one union tries to represent the same group of workers. Once despised by company leaders, the NLRB has become an important part of the American labor system.
The Consumer Product Safety Commission (CPSC), which was created in 1972, sets and enforces safety standards for consumer products. In performing its role, the commission issues recalls of unsafe products and conducts consumer research and education programs. The five-member board has jurisdiction over consumer products used in and around the home, in sports, recreation, and schools. However, it does not control products such as automobiles, tires, boats, alcohol, tobacco, firearms, cosmetics, and medical devices.
In addition to these regulatory bodies, there are other public agencies and commissions that serve the public, consumers, or the government. These agencies may also have regulatory and rule-making functions and may help resolve disputes over rules.
The Central Intelligence Agency (CIA) is an example of one public agency that serves the government. Its principle function is to gather information and intelligence about foreign powers to be used by the executive branch. The CIA Director is also a member of the National Security Council (NSC), an executive advisory group that has become increasingly important with respect to foreign affairs. Chaired by the president, the NSC includes the vice president, secretary of state, treasury secretary, defense secretary, and the president's national security advisor. The chairman of the Joint Chiefs of Staff serves as military advisor to the NSC.
The Environmental Protection Agency (EPA) is the government's largest independent regulatory agency. By monitoring the administration of all environmental legislation, the EPA helps to protect public health by ensuring a clean environment. The EPA was established in 1970 in response to interest group concerns about water, soil, and air pollution.
The Equal Employment Opportunity Commission (EEOC) was created as part of the Civil Rights Act of 1964. The law prohibited discrimination on the basis of race or gender in hiring, promoting, and firing employees. Title VII of the act established the EEOC to implement the new law. The role of the commission has expanded since its inception to include discrimination based on color, religion, national origin, age, and disability. Its jurisdiction today goes beyond hiring, promoting, and firing to include testing, training, wage-setting, apprenticeship, and other conditions of employment.
The Federal Reserve System (FED), which was established in 1913, regulates the nation's interest rates and money supply. The agency also supervises the U.S. Federal Reserve banks. Alan Greenspan became Chairman of the seven-member board in 1987 and is credited with helping the nation avoid excessive inflation and deep recession.
