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Chapter 14 Study Guide/WTP Lesson 25 Name______Adil Mughal______ Terms 1. Judicial review a.

Judicial review in the United States refers to the power of a court to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself. b. The United States Constitution does not explicitly establish the power of judicial review. Rather, the power of judicial review has been inferred from the structure, provisions, and history of the Constitution. c. As of 2010, the United States Supreme Court had held unconstitutional some 163 Acts of the U.S. Congress. 2. Strict constructionist a. In the United States, strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. The phrase is also commonly used more loosely as a generic term for conservatism among the judiciary. b. Strict construction requires a judge to apply the text only as it is spoken. Once the court has a clear meaning of the text, no further investigation is required. Judges should avoid drawing inferences from a statute or constitution and focus only on the text itself. Justice Hugo Black argued that the First Amendment's injunction, that Congress shall make no law (against certain civil rights), should be construed strictly: no law, thought Black, admits no exceptions. Ironically, Black's legacy is as a judicial activist. However, "strict construction" is not a synonym for textualism or originalism, and many adherents of the latter two philosophies are thus misidentified as "strict constructionists." 3. Judicial activist a. Judicial activism describes judicial rulings suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial political issue, particularly in the United States. This phrase is generally traced back to a comment by Thomas Jefferson, referring to the "despotic behavior" of Federalist federal judges, in particular, John Marshall. The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers. 4. Federalist No. 78 a. In Federalist No. 78, Hamilton says that the Judiciary branch of the proposed government would be the weakest of the three because it had "no influence over either the sword or the purse, ...It may truly be said to have neither FORCE nor WILL, but merely judgment." There was little concern that the judiciary would be

able to overpower the political branches; congress controls the money flow and the President controls the military. Courts, on the other hand, do not have the same clout from a constitutional design standpoint. The judiciary depends on the political branches to uphold its judgments. Legal academics often argue over Hamilton's description of the judiciary as the "least dangerous" branch. Hamilton also explains how federal judges should retain life terms as long as those judges exhibit good behavior. b. Federalist No. 78 discusses the power of judicial review. It argues that the federal courts have the duty to determine whether acts of Congress are constitutional, and to follow the Constitution when there is inconsistency. Hamilton viewed this as a protection against abuse of power by Congress. 5. Marbury v. Madison (1803) a. Marbury v. Madison, 5 U.S. 137 (1803), was a landmark United States Supreme Court case in which the Court formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. The landmark decision helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government. b. The Supreme Court's landmark decision on the issue of judicial review was Marbury v. Madison (1803),[2] in which the Supreme Court ruled that the federal courts have the duty to review the constitutionality of acts of Congress and to declare them void when they are contrary to the Constitution. Marbury, written by Chief Justice John Marshall, was the first Supreme Court case to strike down an act of Congress as unconstitutional, unless one counts Hollingsworth v. Virginia (1798) or U.S. v. Todd (1794). Since that time, the federal courts have exercised the power of judicial review many times. Judicial review is now a well settled doctrine. 6. John Marshall a. John Marshall (September 24, 1755 July 6, 1835) was the fourth Chief Justice of the United States (18011835) whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches. Previously, Marshall had been a leader of the Federalist Party in Virginia and served in the United States House of Representatives from 1799 to 1800. He was Secretary of State under President John Adams from 1800 to 1801. b. The longest-serving Chief Justice and the fourth longest-serving justice in US Supreme Court history, Marshall dominated the Court for over three decades and played a significant role in the development of the American legal system. Most notably, he reinforced the principle that federal courts are obligated to exercise judicial review, by disregarding purported laws if they violate the Constitution. Thus, Marshall cemented the position of the American judiciary as an independent and influential branch of government. Furthermore, Marshall's court

made several important decisions relating to federalism, affecting the balance of power between the federal government and the states during the early years of the republic. In particular, he repeatedly confirmed the supremacy of federal law over state law, and supported an expansive reading of the enumerated powers. 7. McCulloch v. Maryland (1819) a. McCulloch v. Maryland, 17 U.S. 316 (1819), was a landmark decision by the Supreme Court of the United States. The state of Maryland had attempted to impede operation of a branch of the Second Bank of the United States by imposing a tax on all notes of banks not chartered in Maryland. Though the law, by its language, was generally applicable to all banks not chartered in Maryland, the Second Bank of the United States was the only out-of-state bank then existing in Maryland, and the law was recognized in the court's opinion as having specifically targeted the U.S. Bank. The Court invoked the Necessary and Proper Clause of the Constitution, which allowed the Federal government to pass laws not expressly provided for in the Constitution's list of express powers, provided those laws are in useful furtherance of the express powers of Congress under the Constitution. b. This case established two important principles in constitutional law. First, the Constitution grants to Congress implied powers for implementing the Constitution's express powers, in order to create a functional national government. Second, state action may not impede valid constitutional exercises of power by the Federal government. 8. Gibbons v. Ogden (1824) a. Gibbons v. Ogden, 22 U.S. 1 (1824), was a landmark decision in which the Supreme Court of the United States held that the power to regulate interstate commerce was granted to Congress by the Commerce Clause of the United States Constitution. The case was argued by some of America's most admired and capable attorneys at the time. Exiled Irish patriot Thomas Addis Emmet and Thomas J. Oakley argued for Ogden, while William Wirt and Daniel Webster argued for Gibbons. 9. Dred Scott v. Sanford (1857) a. Dred Scott v. Sandford, 60 U.S. 393 (1857), also known as the Dred Scott Decision, was a landmark decision by the U.S. Supreme Court. It held that the federal government had no power to regulate slavery in the territories, and that people of African descent (both slave and free) were not protected by the Constitution and were not U.S. citizens. Since passage of the 14th Amendment to the U.S. Constitution, the decision has not been a precedent case, but retains historical significance as it is widely regarded as the worst decision ever made by the Supreme Court. b. The opinion of the court, written by Chief Justice Roger B. Taney, stirred debate. The decision was 72, and every Justice besides Taney wrote a separate

concurrence or dissent. For the first time since Marbury v. Madison, the Court held an Act of Congress to be unconstitutional. c. The decision began by concluding that Scott, as a person of African ancestry, was not a citizen of the United States and therefore had no right to sue in federal court. This holding was contrary to the practice of numerous states at the time, particularly Free states, where free blacks did in fact enjoy the rights of citizens, such as the right to vote and hold public office. In what is sometimes considered mere obiter dictum the Court went on to hold that Congress had no authority to prohibit slavery in federal territories because slaves are personal property and the Fifth Amendment to the Constitution protects property owners against deprivation of their property without due process of law. 10. Roger B. Taney a. Roger Brooke Taney (March 17, 1777 October 12, 1864) was the fifth Chief Justice of the United States, holding that office from 1836 until his death in 1864. He was the first Roman Catholic to hold that office or sit on the Supreme Court of the United States. He was also the eleventh United States Attorney General. He is most remembered for delivering the majority opinion in Dred Scott v. Sandford (1857) that ruled, among other things, that African Americans, having been considered inferior at the time the Constitution was drafted, were not part of the original community of citizens and could not be considered citizens of the United States. b. Taney was a Jacksonian Democrat when he became Chief Justice. Described by his and President Andrew Jackson's critics as " supple, cringing tool of Jacksonian power," Taney was a believer in states' rights but also the Union; a slaveholder who regretted the institution[citation needed] and manumitted his slaves. From Prince Frederick, Maryland, he had practiced law and politics simultaneously and succeeded in both. After abandoning Federalism as a losing cause, he rose to the top of the state's Jacksonian machine. As U.S. Attorney General (18311833) and then Secretary of the Treasury (18331834), Taney became one of Andrew Jackson's closest advisers. 11. Court packing plan a. The Judicial Procedures Reform Bill of 1937 (frequently called the "courtpacking plan") was a legislative initiative proposed by U.S. President Franklin D. Roosevelt to add more justices to the U.S. Supreme Court. Roosevelt's purpose was to obtain favorable rulings regarding New Deal legislation that had been previously ruled unconstitutional. The central and most controversial provision of the bill would have granted the President power to appoint an additional Justice to the U.S. Supreme Court, up to a maximum of six, for every sitting member over the age of 70 years and 6 months. During Roosevelt's first term, the Supreme Court had struck down several New Deal measures intended to bolster economic recovery during the Great Depression, leading to charges from New Deal

supporters that a narrow majority of the court was obstructionist and political. Since the U.S. Constitution does not mandate any specific size of the Supreme Court, Roosevelt sought to counter this entrenched opposition to his political agenda by expanding the number of justices in order to create a pro-New Deal majority on the bench. Opponents viewed the legislation as an attempt to stack the court, leading them to call it the "court-packing plan". b. The legislation was unveiled on February 5, 1937 and was the subject, on March 9, 1937, of one of Roosevelt's Fireside chats. Shortly after the radio address, on March 29, the Supreme Court published its opinion upholding a Washington state minimum wage law in West Coast Hotel Co. v. Parrish by a 54 ruling, after Associate Justice Owen Roberts had joined with the wing of the bench more sympathetic to the New Deal. Since Roberts had previously ruled against most New Deal legislation, his perceived about-face was widely interpreted by contemporaries as an effort to maintain the Court's judicial independence by alleviating the political pressure to create a court more friendly to the New Deal. His move came to be known as "the switch in time that saved nine." However, since Roberts's decision and vote in the Parrish case predated the introduction of the 1937 bill, this interpretation has been called into question. c. Roosevelt's initiative ultimately failed due to adverse public opinion, the retirement of one Supreme Court Justice, and the unexpected and sudden death of the legislation's U.S. Senate champion: Senate Majority Leader Joseph T. Robinson. It exposed the limits of Roosevelt's abilities to push forward legislation through direct public appeal and, in contrast to the tenor of his public presentations of his first-term, was seen as political maneuvering. Although circumstances ultimately allowed Roosevelt to prevail in establishing a majority on the court friendly to his New Deal agenda, some scholars have concluded that the President's victory was a pyrrhic one. 12. Constitutional court a. A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether or not laws that are challenged are in fact unconstitutional, i.e. whether or not they conflict with constitutionally established rights and freedoms. b. The list in this article is of countries that have a separate constitutional court. Many countries do not have separate constitutional courts, but instead delegate constitutional judicial authority to their supreme court. Nonetheless, such courts are sometimes also called "constitutional courts"; for example, some have called the Supreme Court of the United States "the world's oldest constitutional court" because it was the first court in the world to invalidate a law as unconstitutional (Marbury v. Madison), even though it is not a separate constitutional court. c. The Supreme Court of the United States is the highest court in the United States. It has ultimate (and largely discretionary) appellate jurisdiction over all federal

courts and over state court cases involving issues of federal law, and original jurisdiction over a small range of cases. The Court, which meets in the United States Supreme Court Building in Washington, D.C., consists of a chief justice and eight associate justices who are nominated by the President and confirmed by the United States Senate. Once appointed, justices have life tenure unless they resign, retire, or are removed after impeachment. 13. District court a. In the United States federal courts, the United States district courts are the general trial courts. The federal district courts have jurisdiction over federal questions (trials and cases interpreting federal law, or which involve federal statutes or crimes) and diversity (cases otherwise subject to jurisdiction in a state trial court but which are between litigants of different states and/or countries). There are 89 federal districts in the 50 states. United States district courts also exist in Puerto Rico, the Virgin Islands, the District of Columbia, Guam, and the Northern Mariana Islands. So, in total, there are 94 U.S. district courts. Decisions from these courts are subject to review by one of the 13 United States court of appeals, which are, in turn, subject to review by the Supreme Court of the United States. b. Some states maintain state courts called "district courts." In Florida, the Florida District Courts of Appeal are intermediate appellate courts. In Texas, the Texas District Courts are trial courts of general jurisdiction, hearing all felony and divorce cases, election controversies, and many civil matters. The Hawaii State District Courts, and those in Alaska, New York, and Kentucky, to name a few, are courts of limited jurisdiction. 14. Courts of Appeals a. United States courts of appeals (or circuit courts) are the intermediate appellate courts of the United States federal court system. A court of appeals decides appeals from the district courts within its federal judicial circuit, and in some instances from other designated federal courts and administrative agencies. b. The United States Courts of Appeals are considered among the most powerful and influential courts in the United States. Because of their ability to set legal precedent in regions that cover millions of people, the United States Courts of Appeals have strong policy influence on U.S. law; however, this political recognition is controversial. Moreover, because the U.S. Supreme Court chooses to hear fewer than 100 of the more than 10,000 cases filed with it annually, the United States Courts of Appeals serve as the final arbiter on most federal cases. c. There are currently 179 judges on the United States Courts of Appeals authorized by Congress and Article III of the U.S. Constitution. These judges are nominated by the President of the United States, and if confirmed by the United States Senate have lifetime tenure, earning an annual salary of $184,500. d. There currently are thirteen United States courts of appeals, although there are other tribunals (such as the Court of Appeals for the Armed Forces, which hears

appeals in court-martial cases, and the United States Court of Appeals for Veterans Claims, which reviews final decisions by the Board of Veterans' Appeals in the Department of Veterans Affairs) that have "Court of Appeals" in their titles. The eleven numbered circuits and the D.C. Circuit are geographically defined. The thirteenth court of appeals is the United States Court of Appeals for the Federal Circuit, which has nationwide jurisdiction over certain appeals based on their subject matter. All of the courts of appeals also hear appeals from some administrative agency decisions and rulemaking, with by far the largest share of these cases heard by the D.C. Circuit. The Federal Circuit hears appeals from specialized trial courts, primarily the United States Court of International Trade and the United States Court of Federal Claims, as well as appeals from the district courts in patent cases and certain other specialized matters. e. Decisions of the United States courts of appeals have been published by the private company West Publishing in the Federal Reporter series since the courts were established. Only decisions that the courts designate for publication are included. The "unpublished" opinions (of all but the Fifth and Eleventh Circuits) are published separately in West's Federal Appendix, and they are also available in on-line databases like LexisNexis or Westlaw. More recently, court decisions are also available electronically on the official Internet websites of the courts themselves. However, there are also a few federal court decisions that are classified for national security reasons. f. The circuit with the smallest number of appellate judges is the First Circuit, and the one with the largest number of appellate judges is the geographically-large and populous Ninth Circuit in the Far West. The number of judges that the U.S. Congress has authorized for each circuit is set forth by law in 28 U.S.C. 44. g. Although the courts of appeals are frequently referred to as "circuit courts", they should not be confused with the former United States circuit courts, which were active from 1789 to 1911, during the time when long-distance transportation was much less available, and which were primarily first-level federal trial courts that moved periodically from place to place in "circuits" in order to serve the dispersed population in towns and the smaller cities that existed then. 15. Legislative courts a. Legislative courts, so-called because they are created by Congress in pursuance of its general legislative powers, have comprised a significant part of the federal judiciary. The distinction between constitutional courts and legislative courts was first made in American Ins. Co. v. Canter, which involved the question of the admiralty jurisdiction of the territorial court of Florida, the judges of which were limited to a four-year term in office. Said Chief Justice Marshall for the Court: These courts, then, are not constitutional courts, in which the judicial power conferred by the Constitution on the general government, can be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of the

general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States. The jurisdiction with which they are invested, is not a part of that judicial power which is defined in the 3rd article of the Constitution, but is conferred by Congress, in the execution of those general powers which that body possesses over the territories of the United States. The Court went on to hold that admiralty jurisdiction can be exercised in the States only in those courts which are established in pursuance of Article III, but that the same limitation does not apply to the territorial courts, for in legislating for them Congress exercises the combined powers of the general, and of a state government. 16. Senatorial courtesy a. Senatorial courtesy is an unwritten political custom (or constitutional convention) in the United States whereby the president consults the senior U.S. Senator of his political party of a given state before nominating any person to a federal vacancy within that Senator's state. It is strictly observed in connection with the appointments of federal district court judges, U.S. attorneys, and federal marshals. Except in rare cases, the courtesy is typically not extended by the president to a state's senators when the president and senators of said state are of different political parties. b. This "courtesy" is less relied upon in the case of vacancies on the U.S. Court of Appeals. The geographic jurisdiction of these appellate courts spans three or more states, enlarging the number of senators to be consulted and making consensus or unanimity more difficult. At times, the home state senatorial role is so strong that one senator or both senators acting together make the appointment, and the White House and the entire Senate go along with the home state senator(s). c. Senatorial courtesy does not apply in the appointment of Supreme Court justices, though it did during the administration of Grover Cleveland, when political opposition of New York senator David B. Hill prevented Cleveland from gaining confirmation for a replacement to a seat traditionally held by a New Yorker. Cleveland eventually bypassed Hill by disregarding this courtesy, and leveraging another Senate custom through nominating a sitting senator from Louisiana (the Senate tradition is one of approving without debate the appointment of any sitting Senator). d. A secondary meaning of this term refers to the deference often shown to former U.S. senators who are nominated by the president. When a president nominates a former U.S. senator to an executive branch office, the Senate often is more supportive than they would normally be. This type of "courtesy" was dealt a serious blow in 1989, when the Senate failed to confirm former U.S. senator John Tower of Texas to be Secretary of Defense.

e. In the case of federal district court judgeships, the custom of senatorial courtesy is enforced within the Senate Judiciary Committee. Senators may summarily remove a person from further consideration simply by stating that they find the individual "personally obnoxious". The custom is easily applied by a single senator or both senators from the state where the district is located. This is because federal judicial districts do not straddle state lines, thereby limiting the senatorial involvement to only one or both senators from only the state wherein the district is located. 17. Blue Slips a. A blue slip or blue-slipping refers to two different legislative procedures in the United States Congress. i. In the House, it refers to the rejection slip given to Senate tax and spending bills that have not originated in the House in the first place, per the House's interpretation of the Origination clause. ii. In the Senate, it refers to slips on which Senators from the state of residence of a federal judicial nominee give an opinion on the nominee. 18. Litmus test a. A litmus test is a question asked of a potential candidate for high office, the answer to which would determine whether the nominating official would proceed with the appointment or nomination. (The expression is a metaphor based on the litmus test in chemistry.) Those who must approve a nominee, such as a justice of the Supreme Court of the United States, may also be said to apply a litmus test to determine whether the nominee will receive their vote. In these contexts, the phrase comes up most often with respect to nominations to the judiciary. 19. Gang of 14 a. The Gang of 14 was a term coined to describe the bipartisan group of Senators in the 109th United States Congress who successfully negotiated a compromise in the spring of 2005 to avoid the deployment of the so-called nuclear option over an organized use of the filibuster by Senate Democrats. b. As a result of these ten filibusters, Senate Republicans began to threaten to change the existing Senate rules by using what Senator Trent Lott termed the "nuclear option" and which Republicans tended to call the "constitutional option." This change in rules would eliminate the use of the filibuster to prevent judicial confirmation votes. c. The Gang of 14 signed an agreement, pertaining to the 109th Congress only, whereby the seven Senate Democrats would no longer vote along with their party on filibustering judicial nominees (except in "extraordinary circumstances," as defined by each individual senator), and in turn the seven Senate Republicans would break with Bill Frist and the Republican leadership on voting for the "nuclear option." As the Republicans held a five-vote Senate majority (55-45) in the 109th Congress, the agreement of these Senators in practical terms prevented

the Republicans from winning a simple majority to uphold a change in the interpretation of Senate rules, and prevented the Democrats from mustering the 41 votes necessary to sustain a filibuster. 20. William Rehnquist a. William Hubbs Rehnquist (October 1, 1924 September 3, 2005) was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States. Considered a conservative, Rehnquist favored a conception of federalism that emphasized the Tenth Amendment's reservation of powers to the states. Under this view of federalism, the Supreme Court of the United States, for the first time since the 1930s, struck down an Act of Congress as exceeding federal power under the Commerce Clause. b. Rehnquist presided as Chief Justice for nearly 19 years, making him the fourthlongest-serving Chief Justice after John Marshall, Roger Taney, and Melville Fuller, and the longest-serving Chief Justice who had previously served as an Associate Justice. The last 11 years of Rehnquist's term as Chief Justice (1994 2005) marked the second-longest tenure of a single unchanging roster of the Supreme Court, exceeded only between February 1812 and September 1823. He is the eighth longest-serving justice in Supreme Court history. 21. Section 1983 a. Section 1983 of Title 42 of the U.S. Code is part of the civil rights act of 1871. This provision was formerly enacted as part of the Ku Klux Klan Act of 1871 and was originally designed to combat post-Civil War racial violence in the Southern states. Reenacted as part of the Civil Rights Act, section 1983 is as of the early 2000s the primary means of enforcing all constitutional rights. b. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officers judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. 22. Antonin Scalia a. Antonin Gregory Scalia (Listeni/sklij/; born March 11, 1936) is an Associate Justice of the Supreme Court of the United States. As the longest-serving justice currently on the Court, Scalia is the Senior Associate Justice. Appointed to the

Court by President Ronald Reagan in 1986, Scalia has been described as the intellectual anchor of the Court's conservative wing. b. In 1986, Scalia was appointed by Reagan to the Supreme Court to fill the associate justice seat vacated when Justice William Rehnquist was elevated to Chief Justice. Whereas Rehnquist's confirmation was contentious, Scalia was asked few difficult questions by the Senate Judiciary Committee, and faced no opposition. Scalia was unanimously confirmed by the Senate, and took his seat on September 26, 1986. c. In his quarter-century on the Court, Scalia has staked out a conservative ideology in his opinions, advocating textualism in statutory interpretation and originalism in constitutional interpretation. He is a strong defender of the powers of the executive branch, believing presidential power should be paramount in many areas. He opposes affirmative action and other policies that treat minorities as groups. He files separate opinions in large numbers of cases, and, in his minority opinions, often castigates the Court's majority in scathing language. 23. Clarence Thomas a. Clarence Thomas (born June 23, 1948) is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court. On July 1, 1991, after 16 months of service as a judge, Thomas was nominated by Bush to fill Marshall's seat on the United States Supreme Court. Thomas's confirmation hearings were bitter and intensely fought, centering on an accusation that he had made unwelcome sexual comments to attorney Anita Hill, a subordinate at the Department of Education and subsequently at the EEOC. The U.S. Senate ultimately confirmed Thomas by a vote of 5248.Since joining the Court, Thomas has taken a textualist approach, seeking to uphold what he sees as the original meaning of the United States Constitution and statutes. He is generally viewed as the most conservative member of the Court. Thomas has often approached federalism issues in a way that limits the power of the federal government and expands power of state and local governments. At the same time, Thomas's opinions have generally supported a strong executive branch within the federal government. 24. David Souter a. David Hackett Souter (pron.: /sutr/; born September 17, 1939) is a former Associate Justice of the Supreme Court of the United States. He served from 1990 until his retirement on June 29, 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J. Brennan, Jr., Souter was the only Justice during his time on the Court with extensive prior court experience outside of a federal appeals court, having served as a prosecutor, a state attorney general, and a judge on state trial and appellate courts.[2] Souter sat on both the Rehnquist and Roberts courts,[3] and came to vote reliably with the court's liberal members.[2]

Following Souter's retirement announcement in 2009, President Barack Obama nominated Sonia Sotomayor as his successor. 25. Ruth Bader Ginsburg a. Ruth Joan Bader Ginsburg (born March 15, 1933) is an Associate Justice of the Supreme Court of the United States. Ginsburg was appointed by President Bill Clinton and took the oath of office on August 10, 1993. She is the second female justice (after Sandra Day O'Connor) and the first Jewish female justice. b. She is generally viewed as belonging to the liberal wing of the Court. Before becoming a judge, Ginsburg spent a considerable portion of her legal career as an advocate for the advancement of women's rights as a constitutional principle. She advocated as a volunteer lawyer for the American Civil Liberties Union and was a member of its board of directors and one of its general counsel in the 1970s. She was a professor at Rutgers School of LawNewark and Columbia Law School. In 1980, President Jimmy Carter appointed her to the U.S. Court of Appeals for the District of Columbia Circuit. 26. Warren Court a. The Warren Court refers to the Supreme Court of the United States between 1953 and 1969, when Earl Warren served as Chief Justice. Warren led a liberal majority that used judicial power in dramatic fashion, to the consternation of conservative opponents. The Warren Court expanded civil rights, civil liberties, judicial power, and the federal power in dramatic ways. b. The court was both applauded and criticized for bringing an end to racial segregation in the United States, incorporating the Bill of Rights (i.e. applying it to states), and ending officially sanctioned voluntary prayer in public schools. The period is recognized as a high point in judicial power that has receded ever since, but with a substantial continuing impact. c. Prominent members of the Court during the Warren era besides the Chief Justice included Justices William J. Brennan, Jr., William O. Douglas, Hugo Black, Felix Frankfurter, and John Marshall Harlan II 27. Burger Court a. Warren Earl Burger (September 17, 1907 June 25, 1995) was the 15th Chief Justice of the United States from 1969 to 1986. Although Burger had conservative leanings[1] and was considered an originalist, the U.S. Supreme Court delivered a variety of transformative decisions on abortion, capital punishment, religious establishment, and school desegregation during his tenure. 28. Rehnquist Court a. William Hubbs Rehnquist (October 1, 1924 September 3, 2005) was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States. Considered a conservative, Rehnquist favored a conception of federalism that emphasized the Tenth Amendment's reservation of powers to the

states. Under this view of federalism, the Supreme Court of the United States, for the first time since the 1930s, struck down an Act of Congress as exceeding federal power under the Commerce Clause. b. Rehnquist presided as Chief Justice for nearly 19 years, making him the fourthlongest-serving Chief Justice after John Marshall, Roger Taney, and Melville Fuller, and the longest-serving Chief Justice who had previously served as an Associate Justice. The last 11 years of Rehnquist's term as Chief Justice (1994 2005) marked the second-longest tenure of a single unchanging roster of the Supreme Court, exceeded only between February 1812 and September 1823. He is the eighth longest-serving justice in Supreme Court history. 29. Dual Court System a. The dual court system is the distinction of state and federal courts that make up the judicial branch of government. b. Dual court system refers to the separate Federal and State tracks under the umbrella of the Judicial branch of the United States government. Federal courts hear criminal and civil cases that involve constitutional and federal law, policies and special subject matter (such as Bankruptcy, or Federal Tax); while State courts reserve the power to hear civil and criminal cases related to state laws and state constitutional issues. 30. Federal-question cases a. Federal question jurisdiction is a term used in the United States law of civil procedure to refer to the situation in which a United States federal court has subject-matter jurisdiction to hear a civil case because the plaintiff has alleged a violation of the Constitution or law of the United States, or treaties to which the United States is a party. b. Article III of the United States Constitution permits federal courts to hear such cases, so long as the United States Congress passes a statute to that effect. However, when Congress passed the Judiciary Act of 1789, which authorized the newly created federal courts to hear such cases, it initially chose not to allow the lower federal courts to possess federal question jurisdiction for fear that it would make the courts too powerful. The Federalists briefly created such jurisdiction in the Judiciary Act of 1801, but it was repealed the following year, and not restored until 1875. The statute is now found at 28 U.S.C. 1331: "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." c. Unlike diversity jurisdiction, which is based on the parties coming from different states, federal question jurisdiction no longer has any amount in controversy requirement - Congress eliminated this requirement in actions against the United States in 1976, and in all federal question cases in 1980. Therefore, a federal court can hear a federal question case even if no money is sought by the plaintiff.

d. To meet the requirement of a case "arising under" federal law, the federal question must appear on the face of the plaintiff's complaint. There has been considerable dispute over what constitutes a "federal question" in these circumstances, but it is now settled law that the plaintiff cannot seek the jurisdiction of a federal court merely because it anticipates that the defendant is going to raise a defense based on the Constitution, or on a federal statute. This "well-pleaded complaint" rule has been criticized by legal scholars, but Congress has so far chosen not to change the law, although the Supreme Court has made clear it is free to do so. 31. Civil law a. Civil law is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim. For instance, if a car crash victim claims damages against the driver for loss or injury sustained in an accident, this will be a civil law case. Civil law differs from criminal law, which emphasizes more upon punishment than on dispute resolution. The law relating to civil wrongs and quasi-contracts is part of the civil law. b. In civil law cases, the "burden of proof" requires the plaintiff to convince the trier of fact (whether judge or jury) of the plaintiff's entitlement to the relief sought. This means that the plaintiff must prove each element of the claim, or cause of action, in order to recover. 32. Criminal law a. Criminal law is the body of law that relates to crime. It regulates social conduct and proscribes threatening, harming, or otherwise endangering the health, safety, and moral welfare of people. It includes the punishment of people who violate these laws. Criminal law differs from civil law, whose emphasis is more on dispute resolution and victim compensation than on punishment. b. In many countries such as the USA and UK, criminal law has to prove that a party is guilty beyond a reasonable doubt when a case verdict is reached in court. Civil law operates differently, as the UK standard is only to prove guilt on the basis of a balance of probability. 33. Dual sovereignty a. The "separate sovereigns" exception to double jeopardy arises from the dual nature of the American Federal-State system, one in which states are sovereigns with plenary power that have relinquished a number of enumerated powers to the Federal government. Double jeopardy attaches only to prosecutions for the same criminal act by the same sovereign, but as separate sovereigns, both the federal and state governments can bring separate prosecutions for the same act. b. As an example, a state might try a defendant for murder, after which the Federal government might try the same defendant for a Federal crime (perhaps a civil rights violation or a kidnapping) connected to the same act. For example, the officers of the Los Angeles Police Department who were charged with assaulting

Rodney King in 1991 were acquitted by a jury of the Superior Court, but some were later convicted and sentenced in Federal court for violating King's civil rights 34. Writ of certiorari a. Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law, meaning an order by a higher court directing a lower court, tribunal, or public authority to send the record in a given case for review. 35. In forma pauperis a. in forma pauperis is a Latin legal term meaning "in the character or manner of a pauper".[1] In the United States, the IFP designation is given by both state and federal courts to someone who is without the funds to pursue the normal costs of a lawsuit or a criminal defense.[1] The status is usually granted by a judge without a hearing, and it entitles the person to a waiver of normal costs, and sometimes in criminal cases the appointment of counsel. While court-imposed costs such as filing fees are waived, the litigant is still responsible for other costs incurred in bringing the action such as deposition[citation needed] and witness fees. However, in federal court, a pauper can obtain free service of process through the United States Marshal's Service.[2] b. Approximately two-thirds of writ of certiorari petitions to the Supreme Court are filed in forma pauperis.[3][4] Most of those petitioners are prisoners.[3] Petitions that appear on the Supreme Court's in forma pauperis docket are substantially less likely to be granted review than others on the docket 36. Fee shifting a. In many countries there are fee-shifting arrangements by which the loser must pay the winner's fees and costs; the United States is the major exception,[167] although in turn, its legislators have carved out many exceptions to the so-called "American Rule" of no fee shifting. 37. Plaintiff a. A plaintiff ( in legal shorthand), also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit (also known as an action) before a court. In other words, someone who tries to sue. By doing so, the plaintiff seeks a legal remedy, and if successful, the court will issue judgment in favor of the plaintiff and make the appropriate court order (e.g., an order for damages). 38. Defendant a. A defendant or defender ( in legal shorthand) is any party required to answer a plaintiff's complaint in a civil lawsuit, or any party that has been formally charged or accused of violating a criminal statute. (Respondent is the parallel term used in a proceeding which is commenced by petition.) b. In criminal law, a defendant is anyone tried as the accused.

39. Standing a. In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. In the United States, the current doctrine is that a person cannot bring a suit challenging the constitutionality of a law unless the plaintiff can demonstrate that the plaintiff is (or will imminently be) harmed by the law. Otherwise, the court will rule that the plaintiff "lacks standing" to bring the suit, and will dismiss the case without considering the merits of the claim of unconstitutionality. To have a court declare a law unconstitutional, there must be a valid reason for the lawsuit. The party suing must have something to lose in order to sue unless it has automatic standing by action of law. 40. Sovereign immunity a. Sovereign immunity in the United States is the legal privilege by which the American federal, state, and tribal governments cannot be sued. Local governments in most jurisdictions enjoy immunity from some forms of suit, particularly in tort. Foreign governments enjoy immunity from suit, as provided in the Foreign Sovereign Immunities Act. 41. Class action suit a. In law, a class action, a class suit, or a representative action is a form of lawsuit in which a large group of people collectively bring a claim to court and/or in which a class of defendants is being sued. Class actions are commonly referred to as class action suits; however, this phrase is redundant as the historical distinction between "actions" at law and "suits" in equity is no longer recognized. This form of collective lawsuit originated in the United States and is still predominantly a U.S. phenomenon. However, in several European countries with civil law, as opposed to the Anglo-American common law system, changes have been made in recent years that allow consumer organizations to bring claims on behalf of large groups of consumers. 42. Law clerks a. A law clerk or a judicial clerk is a person who provides assistance to a judge or a licensed attorney in researching issues before the court and in writing opinions. Unlike the court clerk and the courtroom deputy, both of whom are administrative staff for the court, a law clerk assists the judge in making legal determinations. Most law clerks are recent law school graduates who performed at or near the top of their class. Various studies have shown clerks to be influential in the formation of case law through their influence on judges' decisions. Working as a law clerk generally opens up career opportunities. 43. Briefs a. A brief is a written legal document used in various legal adversarial systems that is presented to a court arguing why the party to the case should prevail.

44. Amicus curiae a. An amicus curiae (also amicus curi; plural amici curiae, literally "friend of the court") is someone who is not a party to a case who offers information that bears on the case but that has not been solicited by any of the parties to assist a court. This may take of the form of legal opinion, testimony or learned treatise (the amicus brief) and is a way to introduce concerns ensuring that the possibly broad legal effects of a court decision will not depend solely on the parties directly involved in the case. The decision on whether to admit the information lies at the discretion of the court. The phrase amicus curiae is legal Latin. 45. Solicitor General a. The United States Solicitor General is the person appointed to represent the federal government of the United States before the Supreme Court of the United States. The current Solicitor General, Donald B. Verrilli, Jr. was confirmed by the United States Senate on June 6, 2011 and sworn in on June 9, 2011. Verrilli's predecessor on a permanent basis, Elena Kagan, was nominated to the Supreme Court and confirmed by the Senate in August 2010. Between Kagan and Verrilli's tenures, the Principal Deputy, Neal Katyal, had served as Acting Solicitor General. b. The Solicitor General determines the legal position that the United States will take in the Supreme Court. In addition to supervising and conducting cases in which the government is a party, the office of the Solicitor General also files amicus curiae briefs in cases in which the federal government has a significant interest in the legal issue. The office of the Solicitor General argues on behalf of the government in virtually every case in which the United States is a party, and also argues in most of the cases in which the government has filed an amicus brief. In the federal courts of appeal, the Office of the Solicitor General reviews cases decided against the United States and determines whether the government will seek review in the Supreme Court. The office of the Solicitor General also reviews cases decided against the United States in the federal district courts and approves every case in which the government files an appeal. 46. per curiam opinion a. In law, a per curiam decision (or opinion) is a ruling issued by an appellate court of multiple judges in which the decision rendered is made by the court (or at least, a majority of the court) acting collectively and anonymously. In contrast to regular opinions, a per curiam does not list the individual judge responsible for authoring the decision, but minority dissenting and concurring decisions are signed. b. Per curiams are not the only type of decision that can reflect the opinion of the court. Other types of decisions can also reflect the opinion of the entire court, such as unanimous decisions, in which the opinion of the court is expressed with an author listed. The Latin term per curiam literally means "by the court"

47. Opinion of the Court a. In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision. b. Not all cases have a majority opinion. At times, the justices voting for a majority decision (e.g., to affirm or reverse the lower court's decision) may have drastically different reasons for their votes, and cannot agree on the same set of reasons. In that situation, several concurring opinions may be written, none of which is actually the view of a majority of the members of the court. Therefore, the concurring opinion joined by the greatest number of judges is referred to as the plurality opinion. c. Normally, appellate courts (or panels) are staffed with an odd number of judges to avoid a tie. Sometimes when judicial positions are vacant or a judge has recused himself or herself from the case, the court may be stuck with a tie, in which case the lower court's decision will be affirmed without comment by an equally divided court. d. A majority opinion in countries which use the common law system becomes part of the body of case law. e. In some courts, such as the Supreme Court of the United States, the majority opinion may be broken down into numbered or lettered sections. This allows judges who write an opinion "concurring in part" or "dissenting in part" to easily identify which parts they join with the majority, and which sections they do not. 48. Concurring opinion a. In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision. When no absolute majority of the court can agree on the basis for deciding the case, the decision of the court may be contained in a number of concurring opinions, and the concurring opinion joined by the greatest number of judges is referred to as the plurality opinion. 49. Dissenting opinion a. A dissenting opinion (or dissent) is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment. When not necessarily referring to a legal decision, this can also be referred to as a minority report. b. A dissenting opinion does not create binding precedent nor does it become a part of case law. However, they are cited from time to time as a persuasive authority when arguing that the court's holding should be limited or overturned. In some cases, a previous dissent is used to spur a change in the law, and a later case will write a majority opinion for the same rule of law formerly cited by the dissent. 50. Stare decisis

a. Latin for "to stand by things decided." Stare decisis is essentially the doctrine of precedent. Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. Generally, courts will adhere to the previous ruling, though this is not universally true. 51. Political question a. In American Constitutional law, the political question doctrine is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. This is because the court system only has authority to hear and decide a legal question, not a political question. Legal questions are deemed to be justiciable, while political questions are nonjusticiable. b. A ruling of nonjusticiability will ultimately prohibit the issue that is bringing the case before the court from being able to be heard in a court of law. In the typical case where there is a finding of nonjusticiability due to the political question doctrine, the issue presented before the Court is usually so specific that the constitution gives all power to one of the coordinate political branches, or at the opposite end of the spectrum, the issue presented is so vague that the constitution does not even consider it. A court can only decide issues based on law. The constitution dictates the different legal responsibilities of each respective branch of government. If there is an issue where the court does not have the constitution as a guide, there are no legal criteria to use. When there are no specific constitutional duties involved, the issue is to be decided through the democratic process. The court will not engage in political disputes. c. A constitutional dispute that requires knowledge of a non-legal character or the use of techniques not suitable for a court or explicitly assigned by the Constitution to Congress or the President is a political question, which judges refuse to address d. The political question doctrine holds that some questions, in their nature, are fundamentally political, and not legal, and if a question is fundamentally political ... then the court will refuse to hear that case. It will claim that it doesn't have jurisdiction. And it will leave that question to some other aspect of the political process to settle out. 52. Remedy a. A legal remedy (also judicial relief) is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes some other court order to impose its will. b. In Commonwealth common law jurisdictions and related jurisdictions (e.g. the United States), the law of remedies distinguishes between a legal remedy (e.g. a specific amount of monetary damages) and an equitable remedy (e.g. injunctive relief or specific performance). Another type of remedy is declaratory relief, where a court determines the rights of the parties to an action without awarding damages or ordering equitable relief.

53. Court order a. A court order (a type of court ruling) is an official proclamation by a judge (or panel of judges) that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case. A court order must be signed by a judge; some jurisdiction may require it to be notarized. b. The content and provisions of a court order depend on the type of proceeding, the phase of the proceedings in which they are issued, and the procedural[1] and evidentiary[2] rules that govern the proceedings. c. An order can be as simple as setting a date for trial or as complex as restructuring contractual relationships by and between many corporations in a multijurisdictional dispute. It may be a final order (one that concludes the court action), or an interim order (one during the action). Most orders are written, and are signed by the judge. Some orders, however, are spoken orally by the judge in open court, and are only reduced to writing in the transcript of the proceedings. 54. Impeachment a. Similar to the British system, Article One of the United States Constitution gives the House of Representatives the sole power of impeachment and the Senate the sole power to try impeachments. Unlike the British system, impeachment is only the first of two stages, and conviction requires a two-thirds vote. Impeachment does not necessarily result in removal from office; it is only a legal statement of charges, parallel to an indictment in criminal law. An official who is impeached faces a second legislative vote (whether by the same body or another), which determines conviction, or failure to convict, on the charges embodied by the impeachment. Most constitutions require a supermajority to convict. Although the subject of the charge is criminal action, it does not constitute a criminal trial; the only question under consideration is the removal of the individual from office, and the possibility of a subsequent vote preventing the removed official from ever again holding political office in the jurisdiction where he was removed 55. Appellate jurisdiction a. Appellate jurisdiction is the power of the United States Supreme Court to review decisions and change outcomes of decisions of lower courts. Most appellate jurisdiction is legislatively created, and may consist of appeals by leave of the appellate court or by right. Depending on the type of case and the decision below, appellate review primarily consists of: an entirely new hearing (a non trial de novo); a hearing where the appellate court gives deference to factual findings of the lower court; or review of particular legal rulings made by the lower court (an appeal on the record). 56. Concurrent jurisdiction

a. Concurrent jurisdiction exists where two or more courts from different systems simultaneously have jurisdiction over a specific case. This situation leads to forum shopping, as parties will try to have their civil or criminal case heard in the court that they perceive will be most favorable to them. 57. Exclusive jurisdiction a. In civil procedure, exclusive jurisdiction exists where one court has the power to adjudicate a case to the exclusion of all other courts. It is the opposite situation from concurrent jurisdiction, in which more than one court may take jurisdiction over the case. 58. Original jurisdiction a. The original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a court has the power to review a lower court's decision. 59. Samuel Alito a. Samuel Anthony Alito, Jr. (born April 1, 1950) is an Associate Justice of the Supreme Court of the United States. He was nominated by President George W. Bush and has served on the court since January 31, 2006. b. Raised in Hamilton Township, New Jersey and educated at Princeton University and Yale Law School, Alito served as U.S. Attorney for the District of New Jersey and a judge on the United States Court of Appeals for the Third Circuit prior to joining the Supreme Court. He is the 110th justice, the second Italian American and the eleventh Roman Catholic to serve on the court. Alito has been described by the Cato Institute as a conservative jurist with a libertarian streak.[ 60. John Roberts a. John Glover Roberts, Jr. (born January 27, 1955) is the 17th and current Chief Justice of the United States. He has served since 2005, having been nominated by President George W. Bush after the death of Chief Justice William Rehnquist. He has been described as having a conservative judicial philosophy in his jurisprudence. b. In 2003, he was appointed as a judge of the D.C. Circuit by President George W. Bush, where he was serving when he was nominated to be an Associate Justice of the Supreme Court, initially to succeed retiring Justice Sandra Day O'Connor. When Chief Justice Rehnquist died before Roberts's confirmation hearings, Bush renominated Roberts to fill the newly vacant center seat.