American Government Name
Chapter 18 – Judiciary Branch
Judicial Philosophies
Judicial Activism
1. What is the approach to deciding cases taken by justices who embrace judicial activism?
2. What are its strengths?
3. What are its shortcomings?
4. To what extent do judicial activists concern themselves with precedent (stare decisis)?
5. How does judicial activism differ from judicial restraint?
American Government Name
Chapter 18 – Judiciary Branch
Judicial Philosophies
Judicial Restraint
1. What is the approach to deciding cases taken by justices who embrace judicial restraint?
2. What are its strengths?
3. What are its shortcomings?
4. To what extent is precedent (Stare Decisis) a concern?
5. How does judicial restraint differ from living activism?
Texas v. Johnson
Facts
While the Republican National Convention was taking place in Dallas in 1984, Gregory Lee Johnson participated in a political demonstration. Demonstrators marched through Dallas streets, stopping at several locations to stage “die-ins” intended to dramatize their opposition to nuclear weapons. One demonstrator took an American flag from a flagpole and gave it to Johnson.
The demonstration ended in front of the Dallas City Hall, where Johnson unfurled the American flag, doused it with kerosene, and set it on fire. While the flag burned, protestors chanted, “America, the red, white, and blue, we spit on you.” There were no injuries or threats of injury during the demonstration.
Of the hundred or so demonstrators, only Johnson was arrested. He was charged under a Texas criminal statute that prohibited desecration of a venerated object (including monuments, places of worship, or a state or national flag) “in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.”
At Johnson’s trial several witnesses testified that they had been seriously offended by the flag burning. He was convicted, sentenced to one year in jail, and fined $2,000. His conviction was reversed by the state’s court of criminal appeals. The state appealed to the Supreme Court.
Legal Question
Is desecration of the flag, by burning or otherwise, a form of speech protected under the First Amendment?
Constitutional Provision
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. – First Amendment
Activity
1. Use one of the judicial philosophies assigned by your teacher to decide this case.
2. How does that philosophy lead you to your outcome?
3. What would be a dissenting view among your justices? What reasoning would be given by the dissent?
Kyllo v. United States
Facts
A Department of Interior agent, suspicious that Danny Kyllo was growing marijuana, used a thermal imaging device to scan the triplex where Kyllo lived. The imaging was used to determine if the amount of heat emanating from the home was consistent with the high intensity lamps often used for indoor marijuana growth. The imaging revealed that relatively hot areas existed, compared to the rest of the home.
Based on the thermal imaging and some other information, a federal magistrate judge issued a warrant to search Kyllo’s home. The search showed that he had been growing marijuana. He was indicted on a federal drug charge. Before trial he unsuccessfully tried to have this evidence suppressed as the result of a search that violated his Fourth Amendment rights. He then entered a guilty plea.
The federal appeals court upheld his conviction, finding that Kyllo did not have a reasonable expectation of privacy because he had made no attempt to conceal the heat escaping from his home. The court also found that the imaging machine had not exposed any intimate details of Kyllo’s life, only the hot spots on the outside of his home. Kyllo appealed.
Legal Question
Does the warrantless use of a thermal-imaging device to detect relative amounts of heat emanating from a private home constitute an unconstitutional search in violation of the Fourth Amendment?
Constitutional Provision
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. –Fourth Amendment
Activity
1. Use one the judicial philosophies assigned by your teacher to decide this case.
2. How does that philosophy lead you to your outcome?
3. What would be a dissenting view among your justices? What reasoning would be given by the dissent?
Roper v. Simmons
Facts
Christopher Simmons broke into the home of Shirley Crook with the intention to rob and kill her. Simmons and a friend tied the victim up and drove her to a nearby state park where they pushed her off a bridge and into a river where she drowned. Simmons was 17 years old at the time of the murder. Before the crime, he had told several of his friends of the plan to burglarize a home and kill the occupants, noting that they could do it and not get charged for it because they were juveniles.
Simmons and his friend were arrested the following day, and Simmons confessed on videotape. At trial the jury easily found him guilty and sentenced him to death because of the brutal nature of the crime, refusing to acknowledge Simmons’ age as a mitigating factor.
Simmons' case was appealed, raising the issues of the mental capacity and impulsiveness of Simmons, a juvenile at the time of the crime, but the appeals court upheld the death sentence.
The Missouri Supreme Court originally upheld the conviction, but later agreed to reconsider Simmons’ case in light of the 2003 U.S. Supreme Court ruling in Atkins v. Virginia that overturned the death penalty for the mentally retarded. Concluding that "a national consensus has developed against the execution of juvenile offenders," the Missouri Supreme Court overturned Simmons’ death sentence, sentencing him instead to life imprisonment without parole.
The State of Missouri appealed the decision to the U.S. Supreme Court.
Legal Question
Does the Eighth Amendment prohibit the execution of those who commit capital crimes prior to turning 18 years of age?
Constitutional Provision
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. – Eighth Amendment
Activity
1. Use one the judicial philosophies assigned by your teacher to decide this case.
2. How does that philosophy lead you to your outcome?
3. What would be a dissenting view among your justices? What reasoning would be given by the dissent?