3.2.1.4 The judicial branch of government

Question 1

What does Article 3 Section 1 suggest about judicial power

Answer 1

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office

Question 2

what did the Judiciary act 1789 allow for

Answer 2

a system of lower federal courts to be set up and the role of the attorney general to be stablished. Officially titled “An act to establish the judicial courts of the United States”, signed into law by George Washington 1789.

Question 3

What types of cases can be heard in a federal court?

Answer 3

• cases where legisaltion is a federal law - obamacare
• cases involving treatises
  -cases involving the US Constitution
• cases where the US governemnt is a party to the litigation
• cases involving more than 1 state

Question 4

how many cases does the court hear?

Answer 4

less than 100 per year but can receive as many as 5000 writs/pleas

Question 5

Conclusions to be drawn from current judges

Answer 5

• most are from the east coast
• majority are religious
• all are well-educated
• currently more republican leaning

Question 6

Appointment processs

Answer 6

1) Vacancies can only occur by death, retirement, or impeachment.
2) Search is instigated – presidents get to choose nominee.
3) FBI background check
4) Senate hearings and conformation

Question 7

Importance of Judiciary committee vote

Answer 7

If the Committee votes unanimously in favour the nominee can be assured of success on the floor of the Senate, if the vote is lost or tied the nominee can expect the Senate to vote against. E.g. Robert Bork, 1987 defeated at Committee stage and in the Senate.

Question 8

where is advice got from on judicial appointments

Answer 8

• Advisors
• Congress
• Professional Bodies

Question 9

where can nominees come from

Answer 9

• US court of appeals
• Legislative branch
• Executive branch
• Academia
• State governors

Question 10

problems with the current appointment system

Answer 10

• Less separation of powers with senate getting involved.
• Could create gridlock id senate is different party to president.
• Long reigning justice may be out of touch

Question 11

what does article 3 section 1 suggest about appointments and conformation

Answer 11

members hold the office for life, ‘during good behaviour’ and leave because of death or voluntary retirement (or impeachment but this has rarely happened).

Question 12

why are appointments so important

Answer 12

• life-time appointment
• politically/ideologically important
• Can change the balance of the supreme Court.
• Supreme court is the most important court in land.
• ‘echo chamber’ – ideas of president can last decades.

Question 13

Judicial activism

Answer 13

• The exercise of the power of judicial review to set aside government acts.
• Loving v Virgina
• Brown v Board of education

Question 14

Judicial restraint

Answer 14

• The belief that justices should not seek to ‘legislate’ from the bench, this should be left to the legislature and executive.
• Planned Parenthood v Casey

Question 15

Judicial review

Answer 15

A type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body.

Question 16

Strict constructionsim

Answer 16

• A theory limiting interpretation of legal and constitutional language to the literal meaning of this language at the time of passage.
• Carhart v Gonzales, 2006

Question 17

Loose Constructionism

Answer 17

• The judicial philosophy whereby the Constitution is interpreted loosely, typically reading between the lines, to extract a meaning.
• Roe v Wade

Question 18

Originalist

Answer 18

• A theory of interpreting legal texts holding that a text in law, especially the U.S. Constitution, should be interpreted as it was understood at the time of its adoption.
• Judges believe in the right to bear arms – New York States Rifle and pistol association v Bruen 2022 – Antonin Scalia, Neil Goursuch

Question 19

living constitution

Answer 19

• The viewpoint that the U.S. constitution holds a dynamic meaning even if the document is not formally amended.
• Roe v Wade – when it was overturned – Ketanji Jackson Brown

Question 20

Civil rights

Answer 20

the rights of citizens to political and social freedom and equality.

Question 21

Civil liberties

Answer 21

• the state of being subject only to laws established for the good of the community, especially regarding freedom of action and speech.
• freedom of speech – Flag desecration – Texas v Johnson 1989

Question 22

current ideological split

Answer 22

3 – Liberals such as Ketanji Brown Jackson
6 – Conservatives such as Clarence Thomas.

Question 23

Due process

Answer 23

requires that legal matters be resolved according to established rules and principles and that individuals be treated fairly.

Question 24

Due process clause 14th Amendment

Answer 24

• important because it prevents states/authorities from denying persons ‘life, liberty, or property without due process of law’. It basically ensures that states must abide by federal law but this, of course, sits badly with states.

Question 25

Importnace of Section 1 of the 14th Amendment

Answer 25

Defines who is a citizen - every person born in the USA (including slaves and native Indians) has the same rights and responsibilities. Fair trials must take place, and all can enjoy the benefits of citizenship.

Question 26

Importance of section 2 of the 14th Amendment

Answer 26

Overrides Article 1, Section 2, Clause 3 where only parts of the slave population were counted. This section has been further modified to negate ant of the slave discrimination based on sex or race.

Question 27

Importance of section 3 of the 14th Amendment

Answer 27

This Section, especially its last clause, has been used to reinstate citizenship (albeit posthumously) and to prevent particular people from holding seats in the Government.

Question 28

How did the founding fathers intend the judiciary to fit in with the other branches?

Answer 28

• Each branch needed to be strong enough, relative to each other. This aimed to provide balance in the system and a recognition of the doctrine of the separation of powers.
• The power to interpret the constitution, it is argued be the strongest check available to any of the three branches.
• This is because the supreme court can declare any or all policies/action/laws to be contrary to the constitution.
• This can force the legislative and the executive divisions to implement/change certain types of policies.

Question 29

Formal checks the president has on the supreme court

Answer 29

• The president has the very great power of nominating the justices of the supreme court.
• The president can propose of legislation in his state of the union address in January

Question 30

informal checks the president has on the supreme court

Answer 30

The president can use his very high profile to choose to support/defend or oppose a supreme court ruling

Question 31

Formal checks congress has on the supreme court

Answer 31

• The Senate can confirm or deny appointments to the Court.
• The Constitution gives Congress the power to alter the number of judges on the Supreme Court
• Congress has the power of impeachment of justices
• Congress has the very great power of being able to amend the Constitution if the Supreme Court acts against the will of Congress

Question 32

informal checks congress has on the supreme court

Answer 32

• It is claimed that judges ‘follow the election returns’ - vote in the public mood
• Judges cannot initiate cases
• The Supreme Court only hears a small number of cases each year
• The Supreme Court only hears a small number of cases each year
• Judges cannot enforce the rulings that they make

Question 33

checks the court has on itself

Answer 33

• overturning previous decisions of earlier courts
• The constitution is the final but often forgotten check on the power of the Supreme Court

Question 34

Stare decisis

Answer 34

means that in most cases the Supreme Court does not overturn previous rulings.

Question 35

Has the supreme court become too powerful

Answer 35

• Increasingly allowing the supreme court to decide on controversial points of law rather than the legislature
• It’s not uncommon for justices to decide cases based on what the people want rather than acting judicially neutral
• Supreme courts are overturning democratically made decisions.
• The cases the supreme court are looking at are not what the founding fathers intended.

Question 36

increased polartisation of the court

Answer 36

• Roberts court held most one-majority votes at 22%
• One majority vote is increasing.
• Less legitimate and more likely to be overturned.
• More conservatively leaning – brings in more one vote majority results.
• Left leaning justices are only ideologically middle.
• Roberts court has relied on 5-4 to make their decisions.
• Liberals align with liberals vice versa.
• Lasting influence on conservative rulings
• Swing voter – Anthony Kennedy – is in the 10th most conservative judge of all time.
• Court has become more political since Bush v Gore decision.