Judicial Process Week 1 Assignment Intersection of Law and Politics Using the Internet locate the case Obergfell v. Hodges, 576 U.S. ___ (2015). (The full-length opinion from

Judicial Process – Week 1 Assignment

Intersection of Law and Politics

Using the Internet locate the case Obergfell v. Hodges, 576 U.S. ___ (2015).

(The full-length opinion from the U.S. Supreme Court is attached, you do NOT have to read the dissenting opinions). For your convenience I have also attached the Slip Opinion.

1. In one page, summarize the Court’s decision and reasoning for the decision.

2. How does the Court’s decision illustrate the intersection of law and politics?

3. What are the legal ramifications of the Court’s decision? What about the political ramifications?

Your submission should adhere to the following guidelines:

· The total length of your paper should be a minimum of 3 full pages in length.

· Use APA style for general formatting, including margins, font type and font size, spacing, and cover page.

· Include Bluebook formatted citations within the body of the paper and on the References page.

View your assignment rubric.

Chapter 1: Law, Courts and Politics

Judicial Process: Law, Courts and Politics in the United States

Chapter Topics

Courts and Government

Courts as Legal Institutions

Courts as Political Institutions

Courts and Controversy

Political Science

…is the systematic study of government and politics.

Courts are the third branch of government

Courts are different from and similar too the other branches of government

Judicial Process discusses the legal and political characteristics of law and courts

Courts and Government

Courts and Constitutions

Courts are charged with interpreting Constitutions

Judges on the US Supreme Court interpret the US Constitution (e.g., Roe v. Wade 1973)

Judges on state supreme courts interpret state constitutions

Courts and Federalism

Courts are divided along federal and state lines. The relationship between federal and state power is frequently controversial.

The US Supreme Court can declare any law unconstitutional — sometimes these are state/local laws

Brown v. Board of Education (1954) declared Topeka, KS actions unconstitutional

Controversial decisions continue today – e.g. Death penalty restrictions

Courts and the Executive Branch

Presidents view the courts as part of their political agenda. They appoint judges and their lawyers bring cases and defend the president in Court.

there is frequently disagreement about who should be the final judge

there is tension between the president and courts

Governors and mayors also use the courts to advance their policy objectives.

Courts and Legislatures

Courts and legislatures compete for institutional balance.

courts interpret and question the legality of legislation

legislatures control the jurisdiction of courts and influence their composition

Courts and Elections

Courts are frequently involved in election controversies.

deciding what candidates may say (Republican Party of Minnesota v. White 1992), how much they can spend and many other election laws

deciding how votes will be counted (Bush v. Gore 2000)

Elections affect the judiciary too, most judges are directly elected by voters.

Courts and Political Parties

Political parties are interested in having their partisans appointed to judgeships.

the federal judicial nominating and confirmation process has become very partisan

State judicial selection systems may be heavily influenced by partisan politics even though judicial selection is supposed to be nonpartisan.

Courts and Interest Groups

Interest groups are a powerful force in American politics—no less so in relation to law and courts. Interest groups:

file lawsuits

donate money to judicial election campaigns

issue statements about how they think the law should be interpreted and cases decided

Courts and Public Opinion

Courts depend greatly on their legitimacy. Possessing neither the “purse nor the sword” they need public support.

Does public opinion affect the judiciary or does the judiciary affect public opinion?

The jury is one link between courts and public opinion.

JP examines the makeup, procedures and the decision-making on juries

Courts and the Media

The media determines much of what we know about judges, juries, lawyers and litigants.

Should cameras be allowed in the courtroom?

Is a “fair” trial possible in high profile cases?

The popular media also affect what we know (or think we know) about the judiciary – Judge Judy, CSI, Law and Order

Courts as Legal Institutions

When you hear “law” you often think of “courts”—but courts involve more than law.

The legal system encompasses an array of governmental institutions, key actors, and other participants.

Three concentric circles can be used to describe the elements of the legal system.

Institutions of Law (Inner Ring)

The innermost ring is made up of the institutions of law: law and courts.

Law is a body of rules, enacted by public officials and backed by the force of the state.

Courts are places where judges work.

Courts decide disputes based on law.

Institutions of Law (Inner Ring)

All three branches of government are involved in deciding what the law is (legislative, executive, judicial)

Courts do not just decide law—they make it too. They are involved in fitting law to the needs of a dynamic society.

There are more than 17,000 courts in the United States

Interpreters of Law (Middle Ring)

The interpreters of law include primarily lawyers and judges.

Lawyers interpret the law to their clients and are the principal gatekeepers of the legal system

Judges are society’s authoritative interpreters of the law. How they are (and should be) selected is source of constant debate.

Consumers of Law (Outer Ring)

The consumers of law are the thousands of citizens that call the police, file a lawsuit, join interest groups, etc. They provide the raw material for courts.

some consumers are individuals filing lawsuits but they may also be groups or businesses.

Social, Economic, and Political Forces

The circles of the legal system are constantly interacting with the social, economic and political forces at work in the United States.

social attitudes about marriage are changing

September 11, 2001 changed views about terrorism

political and economic demands affect courts and their business

Courts as Political Institutions

Howard (1981) argues that courts are bifocal—both legal and political institutions

Courts are clearly legal institutions—interpreting and applying the law (law, precedent and evidence matter)

BUT the law is often imprecise

Courts are clearly political institutions—allocating values for society

How are they the same and different?

Courts and Politics: The Same?

Politics is “the authoritative allocation of values for a society.” (Easton 1965)

the judiciary is clearly political

Court decisions are determinations that settle controversies. They are:

authoritative

involve discretion, and

determine winners and losers.

Courts and Politics: Different?

The operations of courts differ from those of other governmental bodies.

Courts are passive and reactive, they must wait for controversies to be brought to them

Judges must make decisions in the cases before them

The judiciary is more insulated from elections and lobbying

Courts and Controversy

The courts have a major impact on the U.S. political and social landscape. Tocqueville (1835) said:

“There is almost no political question in the United States and that is not resolved sooner or later into a judicial question.”

Controversial issues are constantly before the courts. Differences of opinion on these issues is often linked to partisan politics.

Courts and Controversy

The Courts today are frequently involved in deciding:

social policies (same sex marriage, healthcare, religion, abortion)

criminal justice issues (death penalty, gun control, drug policy), and

civil justice issues (tort reform, product liability lawsuits)

Courts are legal and political institutions

Definitions of law and politics are very similar

Courts operate in a political environment

Judicial Process is about the intersection of law, courts, and politics in the United States

Conclusion

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Chapter 2: Law and Legal Systems

Judicial Process: Law, Courts and Politics in the United States

Chapter Topics

What is Law?

How Legal Systems Are Organized?

The Components of U.S. Law

Interpreting the Law

Law and Justice

Definitions of law do not necessarily include justice

Justice is fairness in treatment by the law.

The term justice is used many ways:

justice is winning

justice is achieving desired results “good v. bad” results

justice is equated with normative values “right to privacy v. rights of the unborn”

Civil Law

also called Roman law, Romano-Germanic law, or continental law

is the oldest family of law

starts with a code—the compilation of laws

the code expresses rules of law as general principles

the code provides answers for all disputes

Law pervades our lives

Law is a body of rules enacted by public officials in a legitimate manner and backed by the force of the state.

Law regulates the public and private institutions that are a central part of our lives

Law is a word of many meanings— it is difficult to define

Civil Law

judges not lawyers dominate court hearings (e.g., call witnesses)

judges are career bureaucrats who have not been practicing lawyers

juries are not generally used—mixed tribunals of judges and lay citizens are used in serious criminal cases

Socialist Law

originated in the former Soviet Union

partly based on the civil system (a code)

but is also revolutionary—law is to be used to create a radically different society

based on the philosophy of Karl Marx and Vladimir Lenin—the societal ownership of the major means of production is a guiding principle

Socialist Law

rejects law as the fundamental basis for society—law is the arbitrary work of an autocratic sovereign

the primary goal is the protection of the state—private property receives less protection

law has an educational role—it is an instrument of educating members about the new Socialist society

Islamic Law

most legal systems of the world are secular—but not all

Islamic law is termed the shari’a

based on the Qur’an, which sets out principles revealed by God

and the Sunna which contains the practices and decisions of Muhammad

Islam and Islamic clerics influence the law

Common Law

traces its roots to medieval England

after the Norman conquest (1066) the King’s courts began to apply the common customs of the entire realm rather than one village

common law came to be viewed as general law as opposed to special law—it was the law common to the entire land

Equity

the common law became technical and evolved into a hard and limited law

common law remedies were largely limited to monetary damages

the refusal of judges to adapt gave rise to equity law

equity meant fair dealing and equitable remedies were more flexible (e.g., injunctions)

English Heritage; American Adaptations

colonists brought principles of British common law to America

they brought procedures but did not always apply the substance

law was adapted to the frontier society

by the nineteenth century most states had merged their separate courts of law and equity

today the term common law refers to the case method

Key Characteristics of the Common Law

Judge-Made Law

Precedent

Uncodified Rules and Regulations

Judge-Made Law

until the late 19th century, there was no important body of statutory law in the U.S.

common-law courts developed rights in the area of property, torts, wills and contracts, and they defined such felonies as murder, manslaughter, arson, robbery, larceny and rape

common law’s most distinctive feature is the development of a system of law from judicial decisions

Precedent

court decision that serves as authority for deciding a similar question of law in a later case

also referred to as stare decisis “let the decision stand”

sometimes statements in a case are not interpreted as precedent—obiter dicta—(dictum or dicta) the part of the reasoning in a judicial opinion that is unnecessary to resolve the case—is not considered precedent

Precedent

reliance on precedent is central to the common law approach

provides stability, coherence, and predictability

“Stare decisis is usually wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.” Justice Louis Brandeis

Uncodified Rules and Regulations

there is no one place to look for a statement of “the law”

the law emerges through precedent found in court decisions

common-law judges and lawyers reason by analogy which allows leeway in formulating new legal rules or modifying old ones, because analogies are neither correct nor incorrect, only more or less persuasive

Uncodified Rules and Regulations

judges may distinguish a current case from previous ones

judges may find that a case differs from all previous cases or that a previous case was wrongly decided

The Adversary System

the common-law is adversarial, civil law is inquisitorial

the parties are responsible for calling witnesses and asking questions

a judge acts as a neutral decision maker presiding over a battle between the opposing parties

the best system for finding “the truth’?

The Adversary System

Party Prosecution

it is the responsibility of the parties, not the judge or jury, to define the legal issues

encourages each party to present its best case

Neutral and Passive Decision Maker

the judge is a neutral arbitrator and expected to be passive

must be free from pressure–independent

Federalism

federalism divides power between the national and state state governments

federal law refers to the law of the national government—applies across the nation

state law applies to citizens within its territory—it is extensive and diverse (e.g., business and marriage law)

local law applies to a limited geographic or functional area—states grant local jurisdictions legal powers

Multiple Sources of Law

federal, state and local laws are found in multiple sources Constitutions

constitutions are the top rung

a constitution is the document that establishes the underlying principles and general laws of a nation or state

define the powers of branches of government

limit the powers of government (e.g., Bill of Rights)

Multiple Sources of Law

Constitutions

specify how government officials will be selected

federal and state constitutions vary (e.g., selection of judges)

Statutes

statutes are laws enacted by federal, state or local jurisdictions

until late 19th century statutes were secondary to court decisions

today legislatively enacted law is extensive and common

Multiple Sources of Law

Administrative Regulations

rules and regulations adopted by administrative agencies that have the force of law

e.g., IRS decisions, nursing home standards, zoning regulations

newest and fastest growing source of law

administrative law concerns the duties and proper running of an administrative agency

Judicial Decisions

appellate court decisions are an important source of law

legislatures pass law wholesale courts make it retail (Friedman 1984)

U.S. law today is primarily statutory and administrative—but some areas (e.g., tort law and court procedures) are dominated by judge-made law

case law is important in determining the meaning of other sources of law

Public and Private Law

Public law directly involves government (e.g., constitutional, criminal, administrative and international law)

Private law governs the relationships between private citizens

Tort law involves the legal wrong done to another person

not really private—it relies heavily on the actions of public agencies

e.g., divorce law—governs private relationships but involves court decisions

Civil and Criminal Law

a civil suit involves a dispute between private parties

a criminal suit involves a violation of a government’s penal laws

difference between who has been harmed (individual v. state)

types of remedies differ (compensation v. prison, fines or probation)

Judicial Process Week 1 Assignment Intersection of Law and Politics Using the Internet locate the case Obergfell v. Hodges, 576 U.S. ___ (2015). (The full-length opinion from

Intersection of Law and Politics

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