20.4 - The Supreme Court and Protection of Rights

Question 1

What are constitutional rights?

Answer 1

The rights that are explicitly identified within the Constitution and other amendments.

Question 2

Where is the most notable protection of rights in the Constitution?

Answer 2

The Bill of Rights.

Question 3

What are the adverse effects of rights protection?

Answer 3

In protecting one group, you may do this to the detriment of another.

Obergefell v Hodges 2015 protected rights of the LGBTQ community, but arguably infringed upon the religious community. Kim Davis, a clerk in Kentucky, refused to issue marriage licenses to same-sex couples stating it violated her religious beliefs. She was briefly jailed for this.

Question 4

Why is the power of the Supreme Court to protect rights possibly weaker than initially thought?

Answer 4

They only hear 1% of the cases placed before them, referring those decisions back to the lower courts.
In 2018, they declined to hear an appeal from a florist who refused to make an arrangement for a same-sex couple, shying away from this controversial issue.

Alongside this, they are reliant upon state and federal governments to enforce their rulings.
The cases heard about Guantanamo Bay routinely fell in favour of the defendants, but these decisions were often ignored.

All judicial action from the Supreme Court must be rooted in the Constitution. The Court may find it difficult to protect rights as rulings must be found within Constitutional wording.
The Westboro Baptist Church was protected in the Synder v Phelps case despite being highly offensive and insensitive.

Question 5

How should the Constitution be interpreted?

Answer 5

Living Constitution
* It will become out of date if it is not interpreted in the light of modern developments
* Elected and accountable branches often favour the will of the majority, so interpretation of the Constitution can ensure minority rights are protected
* The Founding Fathers could not have envisaged the world which exists today
* The amendment process is too difficult to allow for the development to allow the development of the Constitution
* Principles of the Constitution can be upheld despite the wording of the doc

Originalist
* The Supreme Court is inherently political, which undermines its ability to check other branches of government
* Changes required should be left to the elected and accountable branches
* The amendment process exists and has been used

Question 6

What are the two terms for how justices act?

Answer 6

• Activist
• Restrained

Question 7

How did Obama describe activist judges?

Answer 7

‘somebody who ignored the will of Congress, ignored democratic processes and tried to impose judicial solutions on problems’

Question 8

What is an example of liberal activism?

Answer 8

Obergefell v Hodges.

Created a new policy where same-sex marriage was legalised nationally.

Question 9

What is an example of conservative activism?

Answer 9

Citizens United v FEC.

Allowed money to be seen as an extension of free speech, it embraced conservative ideals which embrace meritocracy and reduced gov. intervention in individuals’ lives.

Question 10

What is stare decisis?

Answer 10

A judicial principle meaning ‘let the decision stand’.

Where possible, justices should refer and adhere to previous Court rulings.

(Associated with judicial restraint)

Question 11

What is an example of liberal restraint?

Answer 11

Planned Parenthood v Casey

Upheld the right to an abortion which had been given by the previous court.

Question 12

What is an example of conservative restraint?

Answer 12

Plessy v Ferguson

Upholding the racial segregation of public facilities, allowing democratic institutions to make changes.

Question 13

What are the criticisms of judicial activism?

Answer 13

• The Supreme Court is unelected.
• The Supreme Court strikes down Acts of Congress with limited checks on its own power, breaching the separation of powers.
• The Supreme Court can strike down state laws, ignoring the constitutional principle of federalism.
• The Court can overrule its own decisions, even when the Constitution has not changed. Suggests the court is acting politically.
• Judicial review interprets the Constitution, meaning there are few effective checks on the Court’s power.

Question 14

What are the criticisms of judicial restraint?

Answer 14

• Elected branches often shy away from dealing with controversial topics due to the short election cycle, or focus only on the will of the majority
• The codified constitution would be highly outdated if it had not been interpreted in reference to modern issues
• The power of judicial review can be implied in the Constitution, so the court should act to limit the gov.

Question 15

What are the main checks and balances on the Court?

Answer 15

• The only power is judicial review, but it only hears around 80 cases a year.
• The President appoints justices
• Congress can in theory alter the number of justices or pass a constitutional amendment to overturn a Court decision

Question 16

How are the main checks and balances on the Court weakened?

Answer 16

• The President must wait for a vacancy to arise before he can appoint a justice
• Congress has not changed the number of justices since 1869 or overturned a Court decision since 1913

Question 17

What is an imperial judiciary?

Answer 17

A judiciary which is overly powerful due to a lack of checks and balances placed on its power.

Question 18

Is the Supreme Court an ‘imperial judiciary’? (Yes)

Answer 18

• Court is unelected and yet is almost entirely unaccountable.
• In theory, justices can be impeached but it almost never happens.
• The power of judicial review is almost impossible to overturn, only happening once in 1913.
• Decisions can overturn laws and actions from accountable branches who also have an electoral mandate.
• Decisions have gone far beyond the original text of the Constitution.
• 8000 cases are brought before the Court each year, giving it a vast choice on what to rule on.

Question 19

Is the Supreme Court an ‘imperial judiciary’? (No)

Answer 19

• The Court has no method to enforce its rulings.
• The Court cannot choose cases to investigate if they have not been brought before it.
• The Court’s rulings can be overturned by constitutional amendment.
• The Court has shied away from hearing cases where public opinion is divided.
• The Constitution is the biggest limit on the Supreme Court.

Question 20

Is the Supreme Court judicial or political? (Judicial)

Answer 20

• The Supreme Court can only take cases with a constitutional basis.
• Members of the Court have legal rather than political experience.
• The Court lacks powers to enforce their decisions.
• Upwards of 2/3s of cases are decided by a majority of more than five justices.
• The Court often adheres to legal principles such as stare decisis.

Question 21

Is the Supreme Court judicial or political? (Political)

Answer 21

• The impact of many rulings is inherently political.
• The appointment process to the Supreme Court is inherently political.
• Justices are identified and labelled as ‘liberal’ or ‘conservative’.
• The Court accepts amicus curiae briefs.
• The Court tends to shy away from more controversial cases (gerrymandering, gun control etc.)
• Decisions change without any constitutional change. (Roe v Wade passing then overturning)