Con Law Outline Spring 2012 Professor Catherine Ross
Friday, March 16, 2012
I. Standards of Review
a. 3 standards
§ Rational basis test (lowest level of scrutiny)
§ Means that the law will be upheld if the law is related to any rational legitimate governmental interest
§ Has to be a minimal rational relationship between the means chosen by the government and the state objective
§ Will fail if no legitimate purpose or it doesn't reasonable promote the interest
§ Burden is on the individual who is attacking the government action to persuade the court that the action is unconstitutional
§ Outcome-Almost always upheld
§ Intermediate scrutiny
§ Applies to only a few areas (gender discrimination and illegitimacy, and expressive conduct such as symbolic speech and commercial speech)
§ Goal has to be important
§ Means must be substantially related
§ Strict scrutiny (hardest)
§ Objective must be a compelling interest (heaviest kind of interest)
§ Means must be necessary to achieve that compelling end.
§ Has to be narrowly drawn
§ Burden is on the government to prove that the action is constitutional
§ Outcome-Almost always struck down
II. Judicial power Article III- Supreme Court's Authority and Federal Judicial Power
1. Who interprets?
a. Marbury v. Madison- It is emphatically “the province and duty of the judicial department to say what the law is”. The court must make the determination whether an act of Congress is in conflict with the Constitution.
1. The constitution imposes limits on government powers and that these limits are meaningless unless subject to judicial enforcement.
2. Inherent to the judicial role to decide the constitutionality of the laws that it applies
3. The courts authority to decide cases arising under the Constitution implied the power to declare unconstitutional laws conflicting with the basic legal charter
2. Review of state court decisions (state law and actions of state officials)
· Cooper v. Aaron
· Facts: a federal court ordered the desegregation of public schools in Little Rock, Arkansa
b. Two ways to avoid being an advisory opinion
i.Must be an actual dispute between 2 adverse litigants
ii.Must be a substantial likelihood that a judicial decision in favor of claimant will bring about some change or effect
· Cases that are non-judiciable (cases that courts should not issue decisions on) should be dismissed at the outset or as soon as the court learns of a judiciably issue
· Doctrine of judiciability has 3 prongs
· P must have a concrete personal injury and a legal right
· Must assert an injury that the court deems sufficient
· Summers v. Earth
· Must show a concrete injury by at least one corporation to bring the law suit
· Couldn't find standing, why?
· Didn't find concrete injury
· Weren't specific enough as to who suffered the injury in the group