3.4: US Supreme Court and Civil Rights

Question 1

Where can the powers of the US Supreme Court be found?

Answer 1

POWER ORIGINS

1. Found in Article III of the Constitution.
   a) Section 1 establishes a Supreme Court.
   - The main role is to uphold the Constitution as the highest source of judicial power in the US.
   - Has just 369 words written about it.
   - Whereas the President has 1,000 and Congress has 2,000.
   - Historical debate over the significance that the Supreme Court was a mere afterthought of the Founding Fathers.
   - Or that it is the least important branch of Government.
   b) Section 2 demonstrates the extent of judicial power.
   - The court cannot initiate cases and must, therefore, wait for a constitutional dispute to arise.
   c) Provides life tenure for judges during ‘good behaviour’.
   d) It provides original jurisdiction.
   - Meaning that the Supreme Court has the right to be the first court to hear a case in certain circumstances, rather than a case needing to be appealed from lower courts
   - Involves public ministers, 2 or more states, citizens of different states or constitutional disputes between states and the federal government.
   - These are very rare with fewer than 200 since the Courts creation.
   e) Appellate jurisdiction
   - Most cases must go through another court before being presented to the Supreme Court.
   f) The appointment process.
   - All justices are nominated by the President and ratified in the Senate.
2. Implied by the Constitution.
   a) The Power of Judicial Review.
   - Allows it to overturn any other institution if the Court declares its actions to be unconstitutional.
   - Received this power in Marbury v Madison 1803 when it overturned an act of Congress
   - Further defined in Fletcher v Peck 1810 in which the court overturned state law for the first time.
   - Some argue that this power is apparent in the Constitution with their role to uphold the document.
3. Federalist Paper 78 (Hamilton, Madison and Jay in essays encouraging the citizens of New York to ratify the new Constitution in 1787).
   a) Written by Alexander Hamilton
   - Courts of justice are to preserve the rights of individuals.
4. Established by Acts of Congress under Constitutional authority.
   a) Congress has the power to:
   - Establish ‘inferior’ courts by determining a series of federal courts with Constitutional power (13 circuit courts below the Supreme Court, the final court of appeal).
   - Determine the number of justices on the court (set at 9 from post-civil-war legislation since the Judiciary Act 1869).
   - The Federal Judiciary Act 1789 allowed for the creation o the Supreme Court as called for by the Constitution, consisting of 1 chief justice and 5 associate justices.

Question 2

What are appellate courts and the structure of the US judiciary system?

Answer 2

APPELLATE COURT
- A court of appeals accepting cases for review from the courts beneath it.

1. There are 13 circuit courts (appellate courts/courts of appeal).
   a) These 13 appellate courts are above the 94 district courts and 3 territorial courts.
   - The Judiciary Act 1891 established 9 circuit courts.
   - There are currently 11 district courts with the 12th circuit (District of Washington DC) and the 13th circuit (‘Federal Circuit’ with non-geographical matters such as Veteran affairs and trade).
   - These district courts are trial courts which deal with federal matters such as trials involving federal laws/crimes or constitutional issues.

Question 3

How has the number of Supreme Court cases declined in recent years?

Answer 3

DECLINING SUPREME COURT CASES

1. Decline to between 7,000 to 8,000 cases a year.
   a) Only around 1% of cases are heard as the court can decide which cases it wishes to hear with the majority of cases being ‘disposed of’.
   b) The year with cases sent to the SC (amount argued in front of the SC):
   - 2012 = 8,806 (76)
   - 2013 = 8,850 (77)
   - 2014 = 8,066 (75)
   - 2015 = 7,535 (70)
   - 2016 = 7,334 (68)
   - 2017 = 7,390 (83)

Question 4

How does the Supreme Court remain independent from other political institutions?

Answer 4

INDEPENDENCE OF THE SUPREME COURT

1. Separation of Powers
   a) Separation of Personnel means that no one in the executive or legislature works closely with judges.
   - Meaning little chance of close connections or pressure.
   b) Judicial review allows the SC to check the power of the President and Congress.
   - But holds no power to enforce its decisions, therefore being reliant on the other branches to carry out its decisions (independent yet codependent).
2. The Appointment Process
   a) The justices are nominated by the President, yet the Constitution requires Senate approval to prevent one branch from dominating the SC and filling it with similar ideologies.
   - Provides an air of legitimacy being appointed by elected representatives, but protected from the whim of public opinion.
   b) The American Bar Association rates the suitability of nominated justices.
   - Industry experts rather than politically motivated.
   - Members of ABA help ensure the SC is composed of people who understand and carry out the letter of law rather than the will of their party.
3. Life Tenure
   a) Justices are appointed for life, preventing any threat of removal if they rule on decisions which dissatisfy other branches of government.
   - EXAMPLE. Truman said “whenever you put a man on the SC, he ceases to be your friend” following his appointees voting against him in a ruling.
   b) Justices, however, can be removed if acting illegally by a supermajority in Congress.
4. Salary
   a) Constitution prevents the salary of the justices being lowered during their time in office as it is fixed (Judicial Compensation Clause of Article III), protecting from any repercussions from Congress and the President.
   - EXAMPLE. In 2018 SC associate justices = $255,300 whereas SC Chief Justices = $267,000.
5. Vacancies
   a) Vacancies are only available upon the death, retirement or impeachment of current justices.
   - While technically the Constitution allows Congress to change the number of Justices, it has been 9 since the Judiciary Act 1869 (preventing other branches packing the Courts with allies).

Question 5

What is judicial review and how did it develop?

Answer 5

JUDICIAL REVIEW
- Power of the SC to judge the actions of the Presidential branch or Acts of Congress against the Constitution. They can declare these acts/actions ‘unconstitutional’ and therefore make them ‘null and void’.

1. Origins
   a) Article III in the Constitution makes no mention of the power of judicial review yet they are found in 2 court cases:
   b) Marbury v Madison (1803)
   - President Adams prepared to leave office in 1801, allowing Thomas Jefferson to take over, Adams appointed a number of men to positions to the court.
   - Once Jefferson took office, he found that some of the commissions for the men had not been delivered and told James Madison (secretary of state) not to allow their delivery.
   - William Marbury challenged Madison over this action in the SC, who were favourable to Marbury, yet ruled that the Federal Judiciary Act 1789 was unconstitutional - effectively reviewing federal law.
   c) Fletcher v Peck (1810)
   - A dispute over a law passed by the Georgia state legislature in 1795, which allowed the sale of 35 million acres of land to 4 companies for a bargain price.
   - Obvious that the law had been bribed and with public outcry, the legislature repealed this law in 1796.
   - Yet whether the land that had been acquired under the 1795 act could be legally sold on, with Fletcher purchasing 13,000 acres from Peck in 1803 (which had come from the 1795 act that had been repealed).
   - SC decided that the 1795 law by Georgia was unconstitutional.
   - Extended SC power over state law as well as federal law.
2. Significance today
   a) Justices are responsible for interpreting the meaning of the Constitution with their opinions effectively final.
   - The only way to overturn the SC would be to change the sovereign document
   - Only happened once with the 16th amendment.
   b) Can determine if an officeholder was ‘ultra-vires’ or acting beyond one’s legal power or authority.
3. Process
   a) Justices will listen from lawyers for the plaintiff and the defendant.
   - Amicus Curiae - Friends of the court, when in session they can hear witnesses.
   - The case is discussed in private afterwards with a majority decision reached.
   - The majority and minority opinion report is written.

Question 6

What are the stages in the appointment process?

Answer 6

APPOINTMENT PROCESS

1. Vacancy Arises
   a) A vacancy can arise through death, retirement or impeachment of a current Supreme Court justice.
   b) EXAMPLE.
   - (Death) Justice Scalia died in April 2016 and Chief Justice Rehnquist died in 2005, both holding seats in the SC.
   - (Retirement) Justice Kennedy retired in June 2018.
   - (Impeachment) The only SC justice to face impeachment was Samuel Chase in 1805, being found not guilty.
2. Presidential Nomination
   a) The president can choose whomever he likes to fill a vacancy, yet it is expected that they will have judicial experience and will be able to pass the Senate vote. They will most likely share the President’s ideology and he may consider the Court’s demographic too.
   b) EXAMPLE.
   - Bush and Trump nominated justices who were likely to be Conservative in their rulings (Roberts, Alito, Gorsuch and Kavanaugh), while Obama appointed likely Liberals (Sotomayor and Kagan).
   - Bush also nominated Harriet Miers, who had previously worked with him but had no experience as a judge and therefore withdrew in 2005.
   - Douglas Ginsburg withdrew his nomination in 1987 after allegations surfaced of smoking marijuana as a student.
3. ABA Rating
   a) Not a constitutional requirement, but the American Bar Association (ABA) offers a rating of ‘unqualified’, ‘qualified’ or ‘well qualified’ for judicial nominees, in its professional opinion.
   b) EXAMPLE.
   - All but one of the current justices on the Court hold a ‘well qualified’ rating.
   - Justice Clarence Thomas was only deemed ‘qualified’. This, alongside allegations of sexual harassment, made it difficult for Thomas to be confirmed by the Senate.
4. Senate Judiciary Committee Hearings
   a) Also not a constitutional requirement, the Senate Judiciary Committee holds hearings in which it can question the nominee. At the end of hearings, the Committee holds a vote. As it is not constitutional the vote serves only as a recommendation to inform the whole Senate.
   b) EXAMPLE.
   - During the hearings of both Brett Kavanaugh in 2018 and Clarence Thomas in 1991, allegations of sexual misconduct were levelled at nominees. The committee was evenly split 7-7 on whether to recommend Thomas.
   - Robert Bork was rejected by the committee by 9-5, and subsequently faced defeat in the full Senate vote in 1987.
   - Kagan’s hearing included humorous exchanged regarding where she spent her Christmas in 2010.
5. Senate Floor Vote
   a) Following the recommendatory vote from the Committee, the whole Senate must vote to confirm an appointment. Following the 2017 reforms, this vote can no longer be filibustered and requires just a simple majority.
   b) EXAMPLE.
   - Robert Bork was rejected in 1987 by a 42-58 vote.
   - Clarence Thomas was narrowly approved to the Supreme Court by a 52-48 vote in 1991.
   - Merrick Garland was nominated by Obama in 2016, yet the Senate refused to hold a vote with Mitch McConnell not considering any nominees until the President-elect was chosen (Garland’s nomination lasted 293 days and expired on January 3, 2017, at the end of the 114th Congress).
   - The votes of all nominees since 2006 have been dominated by party politics, compared to the votes confirming justices, such as Ruth Bader Ginsburg in 1993, who was confirmed 96-3.

Question 7

What happened with the appointment of Brett Kavanaugh?

Answer 7

BRETT KAVANAUGH

1. Justice Anthony Kennedy announced his retirement in June 2018.
   a) 2nd opportunity for Trump to nominate after Neil Gorsuch replacing Antonin Scalia in 2017 over Obama’s nomination of Garland.
   b) Kennedy was a swing justice (sitting ideologically in the centre of the 9 justices).
   - Kavanaugh was one of the most Conservative justices to be nominated to the court.
2. Kavanaugh faced allegations from Professor Christine Blassey Ford that she had been sexually assaulted by Kavanaugh while in College.
   a) More significant given the #metoo campaign.
   - Protests took places in Washington and in the constituency offices of members of Congress.
   - Interest groups such as pro-choice NARAL lobbied against Kavanaugh and organised protests.
3. List of events
   - 10 Jul 2018 = Kavanaugh is nominated by Trump.
   - 31 Aug 2018 = ABA issue a rating of ‘well qualified’.
   - 4/7 Sep 2018 = Senate Judiciary Committee hearings are held, dogged by protests of sexual assault by Kavanaugh.
   - 17 Sep 2018 = Senate judiciary committee announces that the nomination will not proceed until interviews of both Ford and Kavanaugh have been conducted.
   - 20 Sep 2018 = Date is planned for the vote in the Senate Judiciary Committee.
   - 24 Sep 2018 = Kavanaugh appears alongside his wife in a Fox News interview denying the allegations.
   - 27 Sep 2018 = Both Ford and Kavanaugh appear to give evidence before the Senate Judiciary Committee.
   - 28 Sep 2018 = Committee member Senator Flake is caught off-camera being confronted by survivors of sexual assault. Kavanaugh is approved by the Committee 11-10 and Trump orders an FBI investigation into the allegation.
   - 4 Oct 2018 = FBI delivers its findings to the Senate committee.
   - 6 Oct 2018 = Senat approves Kavanaugh appointment 50-48, with Joe Manchin (DINO) being the only Democrat to confirm him. Republican Lisa Murkowski opposes the appointment but abstains as a Republican colleague would have voted for the appointment is absent attending his daughter’s wedding.
   - 8 Oct 2018 = Kavanaugh is sworn as the 114th justice of the US Supreme Court.

Question 8

What are the strengths and weaknesses of the Appointment Process?

Answer 8

APPOINTMENT PROCESS

1. Strengths
   a) The length of the process ensures judicial ability
   - The length of process helps to ensure that candidates undergo vetting and that they are suitable for the post on the SC.
   - Given the power of judicial review gives to the court, it is vital that the justices selected are deemed to be appropriate, this process allows a rigorous critique of candidates.
   - EXAMPLE. Harriet Miers’ withdrawal from the process was in part due to the critical reception given her lack of experience as a judge.
   b) It ensures independence
   - Life appointments and the use of the separation of powers with checks and balances often protect justices feeling an obligation to anyone political institution or public opinion.
   - Mandates are upon the fact that they are appointed by the representatives in 2 branches of gov. = lending them legitimacy in their role, meaning that controversial rulings were enforced by other branches.
   c) Ensures personal suitability
   - The intensive nomination also ensures that there are no historical concerns or character flaws.
   - EXAMPLE. Sonia Sotomayor was questioned who were concerned about apparent racial and gender bias, expressing her views in a 2001 lecture that a ‘wise Latina’ might be a better judge than a white male. Similar case with Kavanaugh and Douglas Ginsburg with his marijuana use.
2. Weaknesses
   a) The length of the process
   - Takes between 2/3 months which can be challenging if the justice has died as the court would only produce 8 justices.
   - In the event of a tie, the ruling of the court from which the case was appealed would stand.
   - EXAMPLE. Obama’s executive order regarding DAPA was challenged by the SC, with a 4-4 result following the death of Antonin Scalia resulting in the order being struck down. Same with Anthony Kennedy retiring in the summer of 2018, Kavanaugh was not confirmed until October.
   b) The politicisation of the nomination process
   - Presidents invariably try to pick someone with an ideology that aligns with their own.
   - EXAMPLE. Anthony Kennedy was Reagan’s nominee (with the failure of his other 2 nominees with Robert Bork and David Ginsburg withdrawing, he needed success). Yet Kennedy has proved to be moderate, often proving to be the courts swing justice.
   - EXAMPLE. Eisenhower referred to his appointment of Chief Justice Earl Warren as a ‘mistake’ as he was far more liberal and responsible for the ‘Brown v Board of Education of Topeka 1954’ case.
   - EXAMPLE. Bush Snr appointment of David Souter (1990-2009) was believed to be Conservative, yet was consistently liberal.
   c) The politicisation of the ratification process
   - Despite the court claiming independence the nomination and Senate confirmation has predictably become politicised.
   - Appointments since 2006 have seen party-line votes in the Senate (Alito 2006 had 54R+4D against 1R+41D, Gorsuch had 51R+3D against 0R+43D).
   - Beyond votes, the Senate Judiciary Committee can be questioned.
   - During the hearings of Alito, Sotomayor, Kagan and Gorsuch the nominees only spoke for 33% of the time over 4 days of hearings, the rest of the time was spent by Senators talking)
   d) It is ineffective
   - Due to the politicisation, nominees tend to avoid giving much detail of their views of the Constitution and issues.
   - EXAMPLE. Problem with Bork was his mistake of being open about views such as ‘Roe v Wade having no legal basis’.
   - EXAMPLE. Gorsuch cited the need to maintain public neutrality before hearing cases and said that he could not even say which precedents of the court he supported.
   e) The media and pressure groups play an increasing role to politicise the process
   - The volume of protests around Kavanaugh and the extent of media coverage underlined just how political appointments had become.
   - ABA’s role can be questioned as it has no constitutional standing and its members are unaccountable, yet their rating can make or break candidates.
   - EXAMPLE. During the appointment of Neil Gorsuch, donors to the Judicial Crisis Network gave $10 million to support his appointment, having given $7 million to oppose the appointment of Merrick Garland.

Question 9

What is the Supreme Court packing plan?

Answer 9

PACKING PLAN

1. Franklin D Roosevelt
   a) Introduced the New Deal plan between 1933 - 1936 to deal with the economic depression that followed the Wall Street Crash.
   - The SC struck down various aspects of the deal as being unconstitutional.
   b) Roosevelt introduced the Judicial Procedure Reform Bill in 1937.
   - Would allow the President to appoint an additional justice for each sitting justices over the age of 70.
   - As there were 6 justices over 70, this would’ve allowed the President 6 new justices and ‘pack’ the court with those favourable to his New Deal legislation.
   c) The bill did not pass, yet in another case, 1 justice switched to favour the President, yet the legislation ultimately failed.
   - Associate Justice Owen Roberts switched in the ‘West Coast Hotel v Parish’ 1937 case upholding the constitutionality of state minimum wage legislation in the case that ‘saved the 9’ and the independence of the court.

Question 10

What factors influence the President’s judicial nominee?

Answer 10

PRESIDENTIAL CONSIDERATIONS FOR JUDICIAL NOMINEE

1. Judicial Experience
   a) Expected that the nominee should have experience as a judge and be qualified in law.
   - This was the key reason why Harriet Miers was criticised in 2005.
   b) ABA lends the President support with the degree of suitability.
   c) Many serve on the circuit courts before their appointment to the SC.
   - Elena Kagan is the only current member who has not served these courts but was a solicitor general for Obama (Senator Jeff Sessions questioned this at her hearing).
2. The outgoing justice
   a) Often President might be expected to replace justices ‘like for like’ in terms of ideology.
   - Often less likely to face extreme opposition in the Senate.
   - Neither Alito nor Kavanaugh can be claimed as like for like replacements with both being considerably more conservative than their predecessor.
3. The demographics of the Supreme Court
   a) President may wish to widen the representative nature of the SC.
   - EXAMPLE. Obama appointed 2 women, doubling the number that has ever served on the court and the first-ever Hispanic = Sonia Sotomayor.
   - Politically motivated? Obama was able to increase his support amongst Hispanic voters after Sotomayor’s appointment.
4. The ideology of the nominee
   a) Almost all nominees are qualified in law and usually have been a judge on a lower court.
   - From their rulings, it is possible to try and ascertain what their ideology is and whether it is compatible with the Presidents.
   - Not always successful, with Anthony Kennedy being a moderate conservative.
   - Kavanaugh appeared on a list of a right-wing think tank ‘The Heritage Foundation’ before Trump nominated him.

Question 11

What is the current composition and ideological balance of the Supreme Court 2020?

Answer 11

IDEOLOGICAL COMPOSITION OF THE SUPREME COURT

1. Chief Justice John Roberts (2005)
   a) Bush II
   b) Conservative
   c) Nomination
   - ABA ‘Well Qualified’
   - 13-5 Senate Judiciary Committee vote
   - 78-22 Senate floor vote
   - 62 days
2. Associate Justice Clarence Thomas (1991)
   a) Bush I
   b) Conservative
   c) Nomination
   - ABA ‘Qualified’
   - 7-7 Senate Judiciary Committee vote
   - 52-48 Senate floor vote
   - 99 days
3. Associate Justice Ruth Bader Ginsburg (1993)
   a) Clinton
   b) Liberal
   c) Nomination
   - ABA ‘Well Qualified’
   - 18-0 Senate Judiciary Committee vote
   - 96-3 Senate floor vote
   - 42 days
4. Associate Justice Stephen Breyer (1994)
   a) Clinton
   b) Liberal
   c) Nomination
   - ABA ‘Well Qualified’
   - 18-0 Senate Judiciary Committee vote
   - 87-9 Senate floor vote
   - 73 days
5. Associate Justice Samuel Alito (2006)
   a) Bush II
   b) Conservative
   c) Nomination
   - ABA ‘Well Qualified’
   - 10-8 Senate Judiciary Committee vote
   - 58-42 Senate floor vote
   - 82 days
6. Associate Justice Sonia Sotomayor (2009)
   a) Obama
   b) Liberal
   c) Nomination
   - ABA ‘Well Qualified’
   - 13-6 Senate Judiciary Committee vote
   - 68-31 Senate floor vote
   - 66 days
7. Associate Justice Elena Kagan (2010)
   a) Obama
   b) Liberal
   c) Nomination
   - ABA ‘Well Qualified’
   - 13-6 Senate Judiciary Committee vote
   - 63-37 Senate floor vote
   - 87 days
8. Associate Justice Neil Gorsuch (2017)
   a) Trump
   b) Conservative
   c) Nomination
   - ABA ‘Well Qualified’
   - 11-9 Senate Judiciary Committee vote
   - 54-45 Senate floor vote
   - 65 days
9. Associate Justice Brett Kavanaugh (2018)
   a) Trump
   b) Conservative
   c) Nomination
   - ABA ‘Well Qualified’
   - 11-10 Senate Judiciary Committee vote
   - 50-48 Senate floor vote
   - 91 days

Question 12

What are the different ideologies and their significance in the Supreme Court?

Answer 12

IDEOLOGY

1. Conservative vs Liberal
   a) Conservative = A justice who is more likely to achieve rulings which produce a more limited federal government and uphold conservative ideals such as pro-gun and anti-abortion. Likely to interpret the Constitution literally.
   b) Liberal = A justice who is more likely to try and achieve rulings which produce greater equality for all, even if that means a larger federal government, and uphold liberal ideals such as LGBT rights and gun control. Likely to interpret the Constitution more broadly.
2. Loose Constructionists vs Strict Constructionists
   a) Loose Constructionists = A justice who is more willing to interpret the wording of the Constitution broadly, which might include giving more power to the federal government.
   b) Strict Constructionists = A justice who will stick to the wording of the Constitution as the text is written, without interpretation. This, therefore, includes protecting state power.
3. Judicial Restraint vs Judicial Activism
   a) Judicial Restraint = A justice who believes in a limited role for the SC, ruling only for the people in front of them in a case and deferring to the elected, and therefore accountable, branches where possible.
   b) Judicial Activism = A justice who is likely to use their position on the Court to achieve rulings that give desirable social ends as far as their ideology is concerned. This may include overturning previous Court rulings.
4. Living Constitution vs Originalism
   a) Living Constitution = A belief that the Constitution is living, organic and evolutionary document that can be changed through reinterpretation over time. Closely linked to loose constructionism.
   b) Originalism = A belief that the meaning and interpretation of the US Constitution is set by the original principles of the document. It should not be subjected to broad interpretation in light of modern advances.

Question 13

What is the swing justice and to what extent is the court divided?

Answer 13

SWING JUSTICE

• The justice who is placed ideologically in the middle of the 9 justices on the US Supreme Court.
• Roberts is the current swing justice, Kennedy was once before then Sandra O’Connor with a shifting ideological nature of the SC.

DIVIDED COURT

• Only 20% of cases are decided with a 5-4 vote.
• 60% of cases in 2016-17 were issued by a 9-0 unanimous vote.

Question 14

What are the different names and characteristics of named courts through recent history?

Answer 14

NAMED COURTS

1. The Warren Court (1953 - 1969)
   - Civil Rights cases such as Brown v Topeka 1954 and Miranda v Arizona 1966 are seen as landmark liberal rulings.
2. The Burger Court (1969 - 1986)
   - Fairly liberal with Roe v Wade 1973 legalising abortions with a mother from Texas who could not afford her children, yet NOW (National Organisation for Women) campaigned that abortion was under the right to privacy and family life under the due process clause of the 14th amedment.
3. The Rehnquist Court (1986 - 2005)
   - Seen as more restrained rather than active, hearing fewer than 100 cases per year and reducing its political impact.
   - Associated with a states’ rights agenda that protected states power and halting the expansion of federal power.
4. The Roberts Court (2005 - today)
   - Arguably more Conservative than the Rehnquist Court yet it has produced landmark rulings undermining finance regulations such as Citizens United v FEC 2010 and McCutcheon v FEC 2014 alongside County v Holder 2013 which undid major aspects of the civil rights movements under the Voting Rights Act meaning that states cannot be checked by the federal government to ensure that their voting practices are not discriminatory, NAACP said that this lead to restrictive practices in 2016.
   - Has disappointed Conservatives with NFIB v Sebelius 2011 which upheld Obamacare, Obergefell v Hodges 2015 (gay rights protected under the 14th amendment), Whole Woman’s Health v Hellerstedt 2016, Snyder v Phelps 2011.

Question 15

What is public policy?

Answer 15

PUBLIC POLICY

• Policy and law created by the branches of government that have an effect on the US population.
• As the Constitution is sovereign, the SC is interpreting the SC with its rulings effectively sovereign.

Question 16

What impact has the Supreme Court had on public policy since 2005?

Answer 16

SUPREME COURT ON PUBLIC POLICY

1. Removing existing policy
   a) Citizens United v FEC 2010
   - Some provisions of the Bipartisan Campaign Reform Act 2002 violate the 1st amendment.
   - The ruling, however, created a new policy allowing for the development of Super-PACs, which could raise unlimited amounts for campaigning, this was heavily criticised by Obama at the 2010 State of the Union address.
   - Effectively had 9 unelected justices a substantial role not only in shaping election policy, but overturning a law by elected representatives, deeming that it conflicted with the Constitution.
   b) McCutcheon v FEC 2014
   - Caps on individual spending violates the 1st amendment.
   - The ruling lifted the ‘aggregate cap’ which limited the total amount an individual could spend in an election. It left a limit on how much can be contributed to an individuals campaign but removed the limit on the number of campaigns contributed to.
   c) Shelby County v Holder 2013
   - Overturned longstanding public policy of Voting Rights Act 1965, arguing that there was no case for it under the 14th amendment, equal treatment, thus protecting states’ rights to declare election laws.
   d) DC v Heller 2008
   - Overturned the Firearms Control Regulations Act of 1975, as it violated the 2nd amendment by banning handguns in the home in Washington DC.
   e) Whole Woman’s Health v Hellerstedt 2016
   - Overturned Texas state regulations on abortions (required health compliance leading to the closure of most Texas clinics) on the grounds of 14th amendment restrictions on equal protection, placing an undue burden on women.
2. Upholding existing policy
   a) NFIB v Sebelius 2011
   - The individual mandate functions as a tax and therefore is within Congress’ power to levy.
   - The ruling upheld Obamacare, allowing it to continue. The law was already in place by this point, however, so the court merely upheld a law already in existence. This decision only narrowly passed, with the 4 liberal justices joined by the Chief Justice.
   b) King v Burwell 2015
   - Subsidies for healthcare can be given to those enrolled in state healthcare exchanges or federal healthcare exchanges.
   - The argument in the case was whether subsidies were available for those in the federal healthcare exchange. If the court had decided ‘no’, it would have reduced federal subsidies by $29 billion and made healthcare unaffordable for many. By ruling ‘yes’ they upheld Obamacare.
3. Establishes new policy
   a) Obergefell v Hodges 2015
   - Created a constitutional guarantee of the right to gay marriage under the 14th amendment, covering both the due process and equal treatment clauses, forcing many states to change their public policy.
   b) Michigan v Environmental Protection Agency (EPA) 2015
   - EPA must consider the cost implications of enforcing the Clean Air Act 1963, rather than simply the need to regulate.
   - This ruling by the SC limited the interpretation allowed by the executive branch when enforcing legislation. Rather than simply regulating the Clean Air, EPA now had to consider whether the costs could be justified, undermining Obama’s environmental policy.
   c) Riley v California 2014
   - Unwarranted police searches of the mobile phone violated the 4th amendment and were unconstitutional.
4. Choosing not to hear cases
   a) Planned Parenthood of Arkansas v Jegley 2018
   - Challenged Arkansas’ strict regulation of medically-induced abortion which made it difficult to obtain the ‘abortion pill’ and would have left the state with 1 abortion provider.
   - In refusing to hear this case, the SC allowed this law to come into force in Arkansas, thereby shaping public policy and supporting the standings of lower courts.

Question 17

What is the difference in ideologies between judicial activism and judicial restraint?

Answer 17

JUDICIAL RESTRAINT AND JUDICIAL ACTIVISM

1. Judicial Restraint
   a) Upholding the policy of other institutions and ‘stare decisis’ (a judicial principle meaning ‘let the decision stand’. Justices refer to, and adhere to, previous Court rulings when making decisions).
   - Base on the view that a neutral and independent court, interpreting the constitution, should reach the same decision.
   b) Liberal Restraint
   - Whole Woman’s Health v Hellerstedt 2016 demonstrated a continuing defence of Roe v Wade 1973 and the right to an abortion.
   - Cases on abortion have been heard since then, with some states placing limitations on it, yet the unwillingness of the court to overturn this remains.
   c) Conservative Restraint
   - Glossip v Gross 2015 builds on previous cases to allow the continued use of lethal injection.
   - The case suggested that prisoners could only challenge the method by providing an alternative method of execution.
   - Responsibility of the prisoner to demonstrate that it caused severe pain, not the responsibility of the state.
2. Judicial Activism
   a) Obama’s frustration of activist judges ignoring the will of Congress and the democratic process and precedent by ruling in a judicial solution rather than letting other branches solve it.
   b) Liberal Activism
   - Obergefell v Hodges 2015 created a new policy under which same-sex marriage was legal nationally.
   - The ruling ignored the laws of 13 states in which same-sex marriage was not allowed and congressional law known as DOMA (Defence of Marriage Act 1996). The court, therefore, ruled against both state and federal elected officials by protecting the rights of the LGBTQ+ community.
   c) Conservative Activism
   - Citizens United v FEC 2010 overturned part of a congressional law (McCain-Feingold 2002 reforms) allowing money to be seen as a form of free speech.
   - Activism as it directly contradicts McConnell v. FEC 2003.

Question 18

What are the criticisms of judicial activism and judicial restraint?

Answer 18

CRITICISMS OF JUDICIAL RESTRAINT AND JUDICIAL ACTIVISM

1. Criticisms of Judicial Restraint
   a) If the SC defers to elected branches of government, this might allow laws and policies which directly contravene the Constitution to stand.
   b) Given the frequent election cycle, elected branches often shy away from dealing with controversial policy issues or focus only on the will of the majority. The Court is, therefore, the only branch to deal with controversial issues or minority rights without fear of public reprisals.
   c) The codified Constitution would be outdated if the SC were not willing to interpret it with reference to modern issues.
   d) The power of judicial review, while not explicit in the Constitution, could be implied. The court should, therefore, act to limit the government as the founding fathers intended.
2. Criticisms of Judicial Activism
   a) The SC is unelected and is therefore unaccountable for the decisions it makes.
   b) Allowing the SC to strike down Acts of Congress and actions of the executive branch, with only limited checks on its power, breaches the separation of powers.
   c) Allowing the SC to strike down state laws ignores the constitutional principle of federalism and the differences that exist across the USA.
   d) The Court can overrule its own decisions, even when the Constitution has not changed, suggesting that the Court is acting politically rather than neutrally.
   e) Judicial review interprets the Constitution, meaning there are few effective checks on the Court’s power as constitutional amendments are so difficult.

Question 19

How have Constitutional rights been protected by recent Supreme Court case rulings?

Answer 19

CONSTITUTIONAL RIGHTS
- The rights that are explicitly identified within the Constitution and its amendments.

1. 1st Amendment
   a) Free Speech (Snyder v Phelps 2011)
   - Declared that free speech in public, even if considered offensive or causing emotional distress, is not limited.
   - 8-1 ruling protected free speech, even though the ‘free speech of Westboro Baptists Church’ was highly controversial.
   - Alito, in dissent, disagreed with the ruling.
   b) Free Speech (US v Eichman 1990)
   - Ruled that a federal law against flag desecration was unconstitutional.
   c) Freedom of Religion (Burwell v Hobby Lobby Stores 2014)
   - The government (Obamacare) cannot require employers to provide insurance coverage for birth control if it conflicts with the religious belief of the employers.
   - All 3 female justices dissented in this ruling, claiming that it limited women’s rights.
   - The ruling only applied this to a specific type of company called ‘closely held’ which makes up 90% of American businesses.
   d) Freedom of Religion (Engel v. Vitale 1962)
   - School prayer was unconstitutional in high schools.
2. 2nd Amendment
   a) Gun Control (D.C v Heller 2008)
   - There is a right to individual gun ownership without a connection to a militia, and for use in the home for self-defence.
   - Strikes down Firearms Control Regulations Act of 1975.
   b) Gun Control (Chicago v McDonald 2010)
   - The right to keep arms for self-defence is also applicable to the states, as well as federal government law.
   - Clarified the D.C v Heller 2008 ruling, which applied to Washington D.C, which is not a state, using the 14th amendment to justify their decision.
   c) Gun Control (Caetano v Massachusetts 2016)
   - The court ruled that the amendment extends to ‘all instruments that constitute bearable arms, even those that were not in existence at the time at the founding’.
   - After being arrested for possession of a stun gun, Caetano’s case ended up in the SC, showing a considerable interpretation of what is meant by arms.
3. 4th Amendment
   a) Searches (Carpenter v U.S 2018)
   - To acquire cell phone location data amounts to a 4th amendment search and therefore a warrant is required to access it.
   - In a digital age, it was a landmark case with a 5-4 decision in which the liberal justices sided with the chief justice.
4. 5th Amendment
   a) Right to silence (Berghuis v Thompkins 2010)
   - A suspect simply remaining silent in an interrogation does not invoke their 5th amendment right to silence.
   - The ruling said that staying silent was not the same as invoking the right o stay silent. Seen as a direct challenge to the Miranda v Arizona 1966 ruling from which the ‘Miranda rights’ come.
   b) Miranda Rights (Salinas v Texas 2013)
   - Remaining silent before your Miranda rights can be used as evidence in a court of law.
   - Having willingly answered Police questions, a suspect of murder fell silent when being asked about his shotgun, he had not been read his Miranda rights, so the police used this silence as evidence of guilt - SC agreed and eroded Miranda rights.
5. 8th Amendment
   a) Capital Punishment (Glossip v Gross 2015)
   - Lethal injection using midazolam does not violate the ‘cruel and unusual punishments’ outlawed in the 8th amendment.
   - Following the botched lethal injection of Clayton Lockett 1 year earlier, Glossip argued that this method was against the 8th amendment.
   - Lethal injections had already been upheld in Baze v Rees 2008 but many SC cases placed limitations on the use of capital punishment.
6. 10th Amendment
   a) Reserved rights of states (Printz v US 1997)
   - Protected states from requirements to create gun restrictions under the federal Brady act 1993 (mandated federal background checks on firearm purchasers in the United States).
7. 14th Amendment
   a) Women’s rights (Whole Woman’s Health v Hellerstedt 2016)
   - The requirements placed on abortion centres by Texas law were an ‘undue burden’ and therefore unconstitutional.
   - The ruling was notable by upholding the 1973 decision in Roe v Wade and overturning a law of a state.
   b) LGBTQ+ Rights (Obergefell v Hodges 2015)
   - The right to marry is guaranteed to same-sex couples.
   - Furthered the US v Windsor 2013 ruling, before which same-sex marriage was legal in only 12 states. The ruling made same-sex marriage legal in 50 states, overturning the law in 12 remaining states in which it was outlawed.

Question 20

How effective is the Supreme Court in protecting rights?

Answer 20

EFFECTIVENESS IN PROTECTING RIGHTS

1. May prioritise one group over another
   a) In Obergefell v Hodges 2015 the rights of the LGBTQ+ community were protected.
   b) Whereas the religious rights of people like Kim Davis (Kentucky Clerk) were infringed.
   - Davis refused to issue marriage licences to same-sex marriage saying it violated her religious beliefs but was briefly jailed by a district court.
   c) However, in Burwell v Hobby Lobby 2014 the religious rights of employees were placed above women and the provision of contraception.
   d) Plessy v Ferguson 1896 ruled that separate facilities did not break the Constitution (separate but equal), with a failure for minority rights
2. The debate over how much power the SC has
   a) The court hears 1% of the cases.
   - Meaning that many infringed rights are ignored.
   b) In June 2018, the Court declined to hear an appeal from a florist who had refused to make an arrangement for a same-sex couple, referring it back to a lower court.
3. Court has no power in enforcing its rulings
   a) It relies on the power of the President and Congress or the states to enforce decisions.
   - Controversial decisions such as Citizens United and FEC have been publicly criticised by the President.
   b) Cases have been circumvented and ignored.
   - Four cases concerning Guantanamo bay between 2004 to 2008 were ignored despite the court favouring the detainees.
   - Repetition in cases shows the courts weakness of ruling.
   - Congress passed the Military Commission Act 2006 to work around a ruling, the act was then struck down.
   c) Despite ruling in Brown v Board of Education Topeka 1954 to desegregate schools, it was ignored until Congress passed the Civil Rights Act 1964.
4. Judicial action from the SC is bound by the Constitution
   a) May find it difficult to protect rights as its rulings are rooted in the document.
   - In Snyder v Phelps 2011, the actions of the Westboro’ Baptist Church appeared insensitive to the rights of a grieving family and their army officer son.
   - The Constitution protected free speech, with the SC awkwardly only being capable of upholding the Constitution.

Question 21

What is the history of racial rights in US politics?

Answer 21

RACIAL RIGHTS and RACIAL EQUALITY

• 1787 = The 3/5th compromise allows for slaves to be counted as 3/5th of a person when determining state populations.
• 1857 = The Supreme Court case of Dred Scott v Sandford rules that Congress does not have the power to ban slavery in the USA.
• 1861 = US Civil War leads to the abolition of slavery.
• 1865 = The 13th Amendment constitutionally abolishes slavery.
• 1868 = The 14th Amendment revokes the 3/5th compromise, guaranteeing equal rights if US citizens and includes the due process clause and equal protection clause.
• 1870 = The 15th Amendment prohibits the right to vote being denied on the basis of colour or race.
• 1896 = Plessy v Ferguson allows for separation of white and African American facilities provided they are ‘separate but equal’.
• 1948 = President Truman signs an executive order desegregating the US army.
• 1954 = Brown v Topeka overturns the 1896 ruling of ‘separate but equal’, desegregating schools.
• 1963 = Martin Luther King Jr March on Washington became the largest protest with 250,000.
• 1964 = Civil Rights Act is passed prohibiting discrimination on the basis of race or colour.
• 1978 = University of California v Bakke is upheld with the use of affirmative action.

Question 22

What are the different methods used to achieve minority rights?

Answer 22

METHODS TO ACHIEVE MINORITY RIGHTS

1. Legal Action
   a) Groups can bring cases to be heard before the Supreme Court.
   - In Schuette v Coalition to Defend Affirmative Action 2014, a case in challenging a ban on affirmative action in Michigan.
   b) Individuals can bring such cases, with rulings having wide-ranging impacts.
   - Cases on affirmative action in education and university admissions have been heard in Fisher v University of Texas 2013 and 2016.
   c) Change can be attempted through the use of amicus curiae briefs.
   - Minority groups can submit their opinions to the Supreme Court for consideration in their cases.
   - More than 60 amicus briefs (from NAACP and individuals such as Khizr Khan, the father of a Muslim US army captain who had been killed in Iraq) were filed in the case of Trump v Hawaii 2018 regarding the ‘travel ban’.
2. Mass Demonstrations and Civil Resistance
   a) In a representative democracy, elected officials are dependent on the public vote and will listen to gain votes.
   - The March on Washington 1963 where Martin Luther King Jr delivered his “I have a dream” speech.
   b) Mass movements are still relevant today
   - The Black Lives Matter movement held a number of protests after the deaths of young African American men at the hands of the police.
   - Hispanic Community-led protests against Trump’s executive order separating families.
   - 2018 Woman’s March drew more than 500,000 people to Washington to protest against Trump and fight for women’s rights.
   - (Pressure groups) The National Council of La Raza (UnidosUS) dubbed Obama the ‘deporter-in-chief’ at its annual conference in 2014 after his administration deported 2 million people since 2009.
   c) Civil resistance such as Rosa Parks protesting with the Montgomery Bus Boycott in 1955.
   - Greensboro sit-in 1960s.
3. Media and Social Media
   a) In the modern age, the development of technology has allowed pressure to be placed on those in power.
   - Twitter with #Blacklivesmatter and the #metoo campaign have gained attention using this medium.
   - Helped the organisation and advertising for campaigns - ‘March for our lives 2018’.
4. Voter registration drives
   a) Groups such as the NAACP campaigned by educating the public on their voting rights in the 1960s despite violent resistant.
   b) Native American groups were involved in organising and maximising voting under the banner of nativevote.org and Get-Out-The-Native-Vote (GOTNV) in 2016.
5. Affirmative Action
   a) Kennedy’s 1961 executive order required contractors to take ‘affirmative action’ by allowing for disadvantaged groups to be provided with additional advantages to create a fairer society (employing racial minorities in the executive branch) and correct historic disadvantages.
   b) Has been scrutinised in the 21st century
   - Chief Justice Roberts commented in 2007 the ‘way to stop discrimination on the basis of race is to stop discriminating on the basis of race’ suggesting that it is discriminatory.
   - It has been banned in 9 states, including California.
   c) The American Civil Rights Institute
   - Pressure group created in 1996 by Ward Connerly, a black opponent of affirmative action.

Question 23

What are some Supreme Court cases relating to Affirmative Action?

Answer 23

AFFIRMATIVE ACTION

1. University of California v Bakke 1978
   a) Effectively ended the use of quotas.
2. Schuette v Coalition to Defend Affirmative Action 2014
   a) The ban on affirmative action in the Michigan state constitution was unconstitutional.
   b) Reversed a lower courts decision with limited impact.
   - Yet it was one of an increasing number of cases challenging the legitimacy of affirmative action as a policy.
3. Fisher v University of Texas 2013 and 2016
   a) Fisher 2013 - the court ruled that while race could be a consideration in university admissions, a court would need to confirm this was ‘necessary’.
   - It did not strike down affirmative action but instead adhered to the principle of stare decisis, upholding Grutter v Bollinger 2003 which allowed the use of race as one factor in university admissions.
   b) Fisher 2016 - the court found that the University of Texas admissions policy met the requirements of ‘strict scrutiny’.
   - Once again upheld affirmative action for University Admissions.
   - Justice Kennedy cited amicus curiae brief in his decision, showing their importance.

Question 24

What are the arguments for and against Affirmative Action?

Answer 24

AFFIRMATIVE ACTION

1. For
   a) It was needed to improve the socio-economic status of minorities. It has helped close the gaps in education and income between racial groups.
   b) Helps reduce racist attitudes by helping overcome de facto segregation. Greater interaction between racial groups can overcome prejudice.
   c) It works, where AA has been ended, there have been a decline in racial minority enrolment in top colleges.
2. Against
   a) A form of racial discrimination, a cause of racism, not a solution to it. You could argue its unconstitutional by breaking the 14th amendment.
   b) Has the wrong focus, on college education and jobs, not in the early years. By the time they grow up their life chances have already been damaged.
   c) AA has not worked, racial inequality still persists today. There is still a major gap between racial groups in the top selective colleges.

Question 25

What are some recent Supreme Court cases relating to Voting Rights?

Answer 25

VOTING RIGHTS

1. Shelby County v Holder 2014
   a) Struck down aspects of the Voting Rights Act 1965, which required areas with historic records of making it difficult for minorities to vote to gain federal clearance before changing their electoral practices.
   b) Some states used this ruling to make changes to their voting regulations.
   - North Carolina made it a requirement that photo ID was presented when voting; low income and minority groups disproportionately lack this ID.
2. Hasted v Randolph Institute 2018
   a) The ruling allowed Ohio to continue its practice of ‘voter caging’.
   - If someone has not voted for a while, they are sent a notice through the mail.
   - If this is returned undelivered and the voter does not vote in the next 2 federal elections, they are struck from the voting register.
   b) Could have a huge effect in the 2018 midterms, with people turning up to vote only to find out they had been struck from the register.
   - Hit minority voters far more than white voters according to the NAACP.

Question 26

What is Amicus Curiae?

Answer 26

AMICU CURIAE
- ‘Friends of the Court’, with an Amicus Curiae brief is a brief submitted by a party with a vested interest in the case to try and advance their view on the case decision.

Question 27

How is the Supreme Court judicial and political in nature?

Answer 27

NATURE OF THE COURT

1. Judicial
   a) The SC can only take cases with a constitutional basis and make decisions on the wording of the Constitution. The justices’ personal political opinions are therefore irrelevant to the process.
   - Justice Kennedy ruled against the ‘Flag Protection Act’ in Texas v. Johnson 1989 despite personally disagreeing with flag burning.
   b) Members of the court have legal rather than political expertise. Almost all of them have come from circuit courts and even Elena Kagan’s political experience was within the Justice Department.
   c) The court lacks any power to enforce the decisions it makes. Only Congress and the President, the directly elected branches of Government, can enforce the decisions. The Court decisions must, therefore, be seen to be legitimate for them to be enforced.
   - Independence saw 3 Nixon justices ruling against him in ‘US v Nixon 1974’.
   d) Usually upwards of 2/3rd of cases are decided by a majority of 9 justices. As the court is broadly divided into ‘liberals’ and ‘conservatives’, this suggests that justices must be basing their decision on something other than their personal opinion. There have been numerous cases wherein controversial and landmark decisions, a justice has seemingly voted against their known personal ideology in a case.
   e) The court adheres to legal principles such as Stare Decisis which helps to lend legitimacy to the decisions it makes.
2. Political
   a) The impact of many rulings is inherently political, striking down actions or acts if the elected branches of government or even, in the rare case of Bush v Gore 2000, effectively deciding who will be the next president.
   b) The appointment process to the SC is inherently political and seems to be getting more so. Since 2006, appointments have been more obviously divided on party lines, and the nominations of Garland and Kavanaugh were particularly contentious.
   c) Justices can be identified, and subsequently labelled, as ‘liberal’ or ‘conservative’, depending on which side of major decisions they align with. That it is possible to do this suggests the actions of justices are politically rather than judicially motivated, given that they are all interpreting the same evidence and the same Constitution yet reaching different conclusions.
   d) The court accepts Amicus Curiae briefs, with documents written to the Court from pressure groups trying to influence the outcome. That groups do this suggests they must believe it has some impact, but it also politicises the role of the court.
   e) The court appears to shy away from hearing some of the more controversial cases, such as lack of gun control cases or unwillingness to hear cases about gerrymandering, suggesting its recognition of the importance of public opinion.

Question 28

In what 2 ways should the Constitution be interpreted?

Answer 28

CONSTITUTIONAL INTERPRETATIONS

1. Living Constitution - The document is living and evolutionary by interpreting the words written within it more widely in the context of modern society and expectations (loose constructionism).
   a) The Constitution will quickly become out of date if it is not interpreted in the light of modern developments, such as changing views on slavery or LGBTQ rights.
   b) Elected and accountable branches often favour the will of the majority and therefore interpretation of the Constitution can ensure minority rights are also protected.
   c) The Founding Fathers could not have envisaged the World which exists today and some of the words in the Constitution are meaningless without interpretation; the founding fathers were not talking about semi-automatic rifles in the 2nd amendment but instead talking of a time with no police force but militias (yeomen) at a time of muskets.
   d) The amendment process is too difficult to allow the development of the Constitution through elected branches of government.
   e) The principles of the Constitution can be upheld despite the wording of the document.
2. Originalism - The Constitution is fixed at the time of its writing, at least for judicial interpretation. The belief that it does not evolve and interpreting it as such undermines the principles codified within it by the Founding Fathers (strict constructionism).
   a) Interpreting the Constitution makes the SC an inherently political institution, undermining its independence and ability to check other branches of government.
   b) Changes required can be left to the elected and therefore accountable branches rather than risking the misinterpretation of the original principles of the Constitution.
   c) People are accountable for their actions according to the law. If this law is constantly evolving and changing, it is not possible for them to know what the law is until after the judge has decided.
   d) The amendment process exists and has been used successfully; this is the method through which amendments should come about.
   e) The principles of the Constitution are not relevant. The Founding Fathers wrote the Constitution, using words and text to demonstrate meaning, and it is this meaning which should be adhered to.

Question 29

How is the extent of the Supreme Court powers limited by checks and balances?

Answer 29

CHECKS AND BALANCES

1. Judicial Review
   a) Can overturn other institution’s actions it views as unconstitutional.
   - Based on the idea of constitutional sovereignty.
   - Can overturn elected bodies.
   - Especially powerful if the SC applies judicial activism.
   - EXAMPLE. In 2018, the SC struck down aspects of the Voting Rights Act 1965 saying that the ‘country had changed in the last 50 years’.
   b) However, the wording of the Constitution limits this power.
   - Limits the extent to which justices can interpret ambiguous parts, limiting the elasticity of the Constitution.
   c) The lack of cases (80 a year) means that this power is limited.
   d) Congress could, in theory, override a court decision by passing a Constitutional amendment.
   - This was done with the 16th amendment in 1913 which allows Congress to levy an income tax without apportioning it among the states on the basis of population.
   - This counteracted Pollock v. Farmers’ Loan & Trust Co. 1895.
   e) Illegitimacy of the Court
   - As the Court is unelected, it could create questions.
   - Obama expressed anger after Citizens United 2010 and his DAPA 2014 executive order on immigration.
2. Interpretation
   a) The constitution is vague, giving justices power to interpret and apply their personal philosophies.
   - A more detailed Constitution would undermine their power.
   - Ambiguity emphasises the power of judicial review.
   b) Limited jurisdiction limits this power.
   - They can only deal with Constitutional issues.
   - Weaker than other branches in controlling policy and influencing peoples daily lives.
   - It does not deal with the annual budget or foreign policy decisions.
3. Independence
   a) The Court is protected from external pressure.
   - Protects judicial review and interpretation powers, allowing justices to make judgements based on Constitution (or own values).
   - Hard to overturn decisions due to the amendment process.
   b) Subject to external influence or pressure.
   - Justices influenced by public opinion or pressure groups.
   - President’s authority may undermine the Court.
   - It can ultimately be overturned by Constitutional amendment.

Question 30

How did the Supreme Court influence the policy of Guantanamo Bay?

Answer 30

GUANTANAMO BAY
- George Bush Jr set up Guantanamo Bay in 2002 in the wake of the 9/11 attacks, with torture and military trials featured at this camp.

1. Rasul v Bush 2004
   a) Foreign detainees in Guantanamo can petition the federal government for Habeas Corpus.
   - Reviewing the legality for their detention.
   b) The British men involved in this case were transported to the UK before the decision was handed down.
2. Hamdi v Rumsfeld 2004
   a) Detainees held in Guantanamo Bay have a right to due process.
   b) Hamdi was released without charge following the ruling. He was then deported to Saudi Arabia on the condition of giving up his US citizenship.
3. Hamden v Rumsfeld 2006
   a) Using military commissions to try detainees in Guantanamo Bay was unconstitutional, as were congressional Acts or Presidential actions authorising them.
   b) The detainees could still be tried but must be tried by the court.
   - It led to the passing of the Military Commissions Act 2006 as a reaction by the president and Congress to authorise the use of military commissions in Guantanamo Bay.
   - Thus overcoming the Supreme Court ruling.
   - This became the focus of the next case.
4. Boumediene v Bush 2008
   a) Detainees in Guantanamo Bay have a right to try their cases in the US courts, and the Military Commissions Act 2006 was unconstitutional.
   b) This not only struck down a Congressional Act, but also asserted the Courts right to rule over Presidential actions in this policy area.

Question 31

To what extent is the Supreme Court an ‘imperial judiciary’?

Answer 31

SUPREME COURT IMPERIAL JUDICIARY
- A judiciary which is overly powerful due to the lack of effective checks and balances on its power.

1. The Court IS imperial
   a) The Court is unelectable, able to make decisions with a huge impact on the US government and citizens, and yet is almost entirely unaccountable.
   b) While justices can, in theory, be impeached, this process has been used to remove a justice only once in 1805. This further advances the unaccountable nature of the Court.
   c) The Court’s power of judicial review often amounts to the final say on any issue as it is so difficult to overturn a decision. The use of a Constitutional amendment to achieve this was done once in 1913.
   d) These decisions can also overturn the laws and actions from branches which are accountable and have a mandate from the people to carry out these actions.
   e) These decisions have gone far beyond the original text of the Constitution and created entirely new rights, with the Court having broad powers to interpret the Constitution.
   f) Despite only being able to hear a limited number of cases each year, the fact that 8,000 cases are annually brought to the Court allows it a vast choice on what it wishes to rule upon.
2. The Court ISN’T imperial
   a) The Court has no way to enforce its own rulings and is entirely dependent on the other branches of the federal government or states to enforce its rulings, or in some cases, ignore its rulings.
   b) The Court cannot choose cases to investigate which have not been brought before it. Even if there are acts of actions which it considers unconstitutional, it must await a case before being able to rule on it.
   c) The Court’s rulings can be overturned if necessary and the 16th amendment shows that it is possible to achieve this.
   d) The Court has often shied away from hearing cases in which public opinion is closely divided, such as gun control cases.
   e) The Constitution provides the single biggest limit on the Supreme Court. Regardless of the justices’ personal or political opinion, cases and decisions must be rooted in the Constitution. Even with the power to interpret this, they can only interpret what is there.
   f) Justices are subject to the threat of removal as they only hold their offices during times of ‘good behaviour’. This should prevent justices from acting in a reckless manner.

Question 32

What influence has the Supreme Court had on Immigrant Reform?

Answer 32

IMMIGRATION REFORM

1. Arizona v US 2012
   a) The Court struck down key aspects of Arizona SB 1070 law, striking down the provision that immigrants must carry registration documents because it conflicted with federal law.
   b) The law was notable for the clash of state power versus federal power, adn in which Arizona was on the losing side.
   - It sent a precedent that opportunities for state action over the issue of immigration were limited.
2. Texas v US 2016
   a) The Court split 4-4 which meant the ruling of the lower court stood, which struck down Obama’s DAPA executive order.
   - Deferred Action for Parents of Americans (DAPA) 2014 expanded the Deferred Action for Children Arrivals (DACA) 2012 which allowed illegal immigrants who met certain conditions to remain in the USA.
   - Together this offered protection from deportation for 11 million undocumented immigrants in the USA, yet not a path to citizenship.
   b) President Obama had little success achieving immigration reform through Congress during his time in office, and this ruling struck down what he had achieved.

Question 33

What are successes and failures has the Supreme Court had on Equality and Representation?

Answer 33

EQUALITY

1. Successes
   a) Obama’s Deferred Action for Childhood Arrivals (DACA) and Deferred Action for the Parents of Americans (DAPA) executive orders allowed millions of undocumented immigrants to be free from the threat of deportation.
   b) Numerous Supreme Court cases have upheld the policy of Affirmative Action, such as Fisher v Texas 2013.
   c) The election of Obama, as well as increasing numbers of ethnic minorities represented in the Supreme Court and in Congress, shows increasing diversity in government in the USA.
   d) Focus on the growing Hispanic population, including projections that it will make around 25% if the US population by 2045, has meant increased attention on minority issues.
   e) Generally, ethnic minority voter turnout has increased over the past two decades, despite a slight drop more recently.
   f) In 2008 and 2016, female candidates were on the Presidential ballot (Sarah Palin and Hillary Clinton).
   - Obama was also the first African-American president of the USA.
2. Failures
   a) Obama failed to get any meaningful immigration reform legislation passed, despite bipartisan support in the Senate.
   b) Segregation still remains an issue in the USA due to housing patterns. George Bush was accused of racism in 2005 when the federal government responded only slowly to the disaster left by Hurricane Katrina, which overwhelmingly affected the ethnic minority population of New Orleans.
   c) Black Lives Matter movement demonstrates the depth of inequality still felt in the USA.
   d) The state ban on affirmative action in Michigan was upheld in Schuette v Coalition to Defend Affirmative Action 2014. In states where affirmative action has been banned the number of ethnic minorities attending colleges has fallen, despite an increase in the population.
   e) The wealth gap in the USA continues to widen between white households and minority households.
   f) Difficulties in representation for regions with the deep south underrepresented and a typical North/South divide.