3.Judiciary

Question 1

Marbury v Madison

Answer 1

-1803
-The Supreme Court power of Judicial Review over Acts of Congress established, can declare Acts unconstitutional

Question 2

Fletcher v Peck

Answer 2

1810
- The Supreme Court first ruled a state law unconstitutional.

Question 3

Presidential considerations for a judicial nominee - demographic of the court

Answer 3

3/9 are from ethnic minority backgroud & 4/9 are women as of 2023 meaning they are descriptively representative of society

Obama appointed the first Hispanic person to the court, Sonia Sotomayor in 2009

Question 4

Presidential considerations for a judicial nominee - judicial experience

Answer 4

Judicial experience - 8/9 current justices were rated by the American Bar Association as ‘well-qualified’.

However, Claerence Thomas was only rated ‘qualfiied’ but was still appointed in 1991

Question 5

Presidential considerations for a judicial nominee - the ideology of the justicies

Answer 5

6 Conservative - 3 Liberal currently. e.g. Trump’s appointment of Amy Conet Baret who replaced Ruth Gingsburg.

Sometimes they don’t go as predicted - President George H. W. Bush nominated David Souter in 1990, believing he was conservative and a strict constructionist, but, turned out to vote reliably loose constructionist and liberal

Question 6

Presidential considerations for a judicial nominee - increasing partianship in Congress

Answer 6

The President has to consider a candidate with bipartisan support in order to pass Congress. E.g. Brett Kavanaugh was appointed 50-48 in 2018. Rated ‘well qualified’

However, this is only caused by the recently increased partsanship in Congress. E.g. Antonin Scalia was appointed 98-0 in 1986 Rated ‘well qualified’

Question 7

The judges views on the constitution - loose constructionist

Answer 7

Interprets the constitution less literally and tends to stress the broad grants of power to the federal government

E.g. Schuette v BAMN (2014) wrote a dissent on this case involving a ban on affirmatve action policies, arguing against the conservative judges on how the court should treat race-based laws, saying “race matters”

Question 8

The judges views on the constitution - strict constructionist

Answer 8

Interprets the constitution literally/strictly and tends to stress the retention of power by individual states

E.g. Amy Coney Baret in 2021 joined the majority in rejecting a petition to temporarily block a Texas law banning abortion after 6 weeks of pregnancy

Question 9

The judges views on the constitution - originalist

Answer 9

Interprets the constitution in line with the meaning or intent of the framers at the time of enactment

E.g. Samuel Alito in Harris v Quinn (2014) wrote for the majority in which the court ruled labor unions could not collect fees from workers who were not part of the union due to the 1st Amendement

Question 10

The Presidents strong infleunce on appointments

Answer 10

2017 Reagan’s appointment Anthony Kennedy was on the court 30 years after Reagan left office

82% of presidential nominations are confirmed

Trump appointed Neil Gorsuh, Bret Kavanaugh and Amy Coney Baret 2017-2021

Question 11

The limitations of the President’s influences on appointments

Answer 11

Carter served a full 4 year term but made no appointments the Sup C. Clinton, George W. Bush and Obama put only 2 justices forward in their 2 terms

The Republican majority Senate took no action on Democratic Obama’s nominee Merrick Garland, in 2016, to replace Antonin Scalia.

President George H. W. Bush nominated David Souter in 1990, believing he was conservative and a strict constructionist, but, turned out to vote reliably loose constructionist and liberal

Limited when replacing a justice of same idoelogical leaning e.g. Ketanji Brown Jackson 2022 is liberal and replaced Steven Breyer who was also liberal

Question 12

Strengths of the appointment process

Answer 12

The length of the process - It helps to ensure that candidates undergo proper level of scrutiny to ensure they are suitable e.g. In 2005 Harriet Miers withdrew from the process which was in part due to her lack of experience as a judge

Politicisaiton of the process - The Senate confirms the appointment of the President of the Supreme Court, preventing the president from choosing a judge with an over bias towards a particular constitutional amendment e.g. In 1987 Reagan’s nomination of Robet Borke was rejected in the Senate due to concerns of him being too conservative

The intense media focus - increases the public awareness and engagment with the nomination process. E.g. In 2022 Ketanji Brown Jackson in her nomination gained popular attention in media reporting after the use of the phrase “Presidents are not Kings”

Question 13

Weaknesses of the appointment process

Answer 13

The length of the process - Process takes 2 to 3 months which results in long periods of 8 justices leading to 4-4 decisions which then upholds the previous judges decision e.g. United States v Texas 2016 on Obama executive order regarding Deffered Action for Parents of Americans (DAPA) where a 4-4 meant it was struck down

Politicisaiton of the process - Can result in situation in the Senate where Senators largely only vote from a nomination from a President of their party, as seen by the number of party line votes e.g. In 2018 Brett Kavanaugh was confirmed 50-48 with only 1 Democrat crossing the party line

The intense media focus - the media can have a hyperfocus on any allegations made against nominees rather than having an informed debate over their judicial competence. E.g. Thomas Clarence described the media attention on his sexual assult allegations during his nomination in 1991 as “lynching”

Question 14

National Federation of Independent Business v Sebelius

Answer 14

-2012
-Congress’s power under ‘the commerce clause’ came under President Obama’s healthcare reform called Affordable Care Act (2010)
-Judgement gave more power to Congress under ‘the commerce clause’

Question 15

Rasul v Bush

Judicial review on presidential power

Answer 15

-2004
-struck down the Bush administration’s view that the detainees in Guantanamo Bay were outside the jurisdiction of federal courts
-Acting as a check on the President’s power

Question 16

Citizens United v Federal Election Commission

Judicial review of a constitutional matter

Answer 16

-2010
-1st Amendment – Freedom of speech
-Supreme Court ruled that when it comes to rights of political speech, business corporations and labour unions have the same rights as individuals

Question 17

Ring v Arizona

Judicial review of a constitutional matter

Answer 17

-2002
-8th Amendment – Freedom from cruel punishment (Death penalty)
-death sentences imposed by judges, rather than juries, were unconstitutional as they infringed the Sixth Amendment Right to trial by jury

Question 18

Gonzales v Raich

Judicial review of a constitutional matter

Answer 18

-2005
Supreme Court held that the regulation of marijuana was within Congress’ commerce power because production of marijuana meant for home consumption had a substantial effect on the national market. Due to the enforcement difficulties

Question 19

Roe v Wade

Judicial review of a constitutional matter

Answer 19

-1973
-The Fourteenth Amendment right of ‘Liberty’ included ‘freedom of personal choice in matters of marriage and family life’ and that this right ‘necessarily includes the right of a woman to decide whether or not to terminate her pregnancy’

Question 20

District of Columbia v Heller

Judicial review of a constitutional matter

Answer 20

-2008
-2nd Amendment – Right to bear arms
-First time in history that the Supreme Court ruled in a case relating to the meaning of the 2nd Amendment. The Court ruled against the control laws and the majority of the Court took the view that ‘the right to keep and bear arms’ in the 2nd Amendment is a right of the individual

Question 21

Amount of split decisions bad/Amount of unanimous decisions good?

Answer 21

Since 2000
-19% of rulings were 5-4
-36% of rulings were 9-0

Question 22

Undermined by changing precedent

Answer 22

-McConnel v FEC 2003 upheld the Bi-Partisan Campaign Reform Act 2002
-Citizens united v FEC 2010 struck most of the Bi-Partisan Campaign Reform Act down
-Main difference was the appointment of the more conservative Samuel Alito

Question 23

Supreme court shaping areas of policy - Elections and Elections spending

Answer 23

-Citizens United v Federal Electoral Commission 2010 created a new policy allowing the development of Super PACs which could raise unlimited amounts of funding by striking down the Bipartisan Campaign Reform Act 2002

-McCutcheon v FEC 2014 which removed the cap on the total amount which an individual could spend in an election, but left intact on how much can be contributed to a particular campaign

Question 24

Supreme court shaping areas of policy - punishment

Answer 24

In Ring v Arizona 2002 the Supreme Court ruled that death sentences imposed by judges, rather than juries, were unconstitutional as they infringed the Sixth Amendment Right to trial by jury

Question 25

Supreme court shaping areas of policy - healthcare

Answer 25

In National Federation of Independent Business v Sebellius 2012 the Supreme Court struck down the section of the 2010 Affordable Care Act which forced states to participate in an expansion of the federal-state Medicaid programme or lose all federal funding for Medicaid
(limiting congrssional power)

Counter - The Supreme Court does not have to grant a hearing of a case e.g. In Planned Parenthood of Arkansas v Jegley 2018, which would have resulted in all but 1 abortion clinic closing down, this came into force as the Supreme Court chose not to hear the case

Question 26

Supreme court shaping areas of policy - environment

Answer 26

In Michigan v Environmental Protection Agency 2018 the supreme court made the EPA consider whether the costs are justified rather than just regulating the Clear Air Act undermining Obama’s environmental policy

Question 27

Supreme court shaping areas of policy - immigration

Answer 27

In National Federation of Independent Business v Sebellius 2012 the Supreme Court struck down the section of the 2010 Affordable Care Act which forced states to participate in an expansion of the federal-state Medicaid programme or lose all federal funding for Medicaid
(limiting congressional power)

United States v Arizona 2012
The court struck down 3 provisions of an Arizona immigration law as they encroached on areas of congressional authority to regulate immigration
The Sup C can both protect and limit Congress keeping the balance of powers of the fed gov and those of the individual states
(protecting Congressional power)

Question 28

Supreme court rulings on presidential power

Answer 28

National Labor Relations Board v Noel Canning 2014 - ruled in a 9-0 vote that Obama lacked the constitutional authority to make high-level executive branch appointments (recess appointments) when the Senate was technically available to give its advice and consent
(limiting presidential power)

In Trump v. Hawaii 2018, The Court upheld President Donald Trump’s executive order banning travel from several predominantly Muslim countries, ruling that it fell within his authority to protect national security.
(protecting presidential power)

Question 29

The Supreme Court checks and balances on Bush and Guantanamo Bay detainees

Answer 29

Rasul v Bush 2004- struck down the Bush administration’s view that the detainees in Guantanamo Bay were outside the jurisdiction of fed courts. Instead, the foreign detainees held at the US base in Guantanamo Bay did have access to the US fed courts to challenge their detention. While agreeing that it was within Bush’s powers to order the detention of members of al Qaeda/ Taliban as ‘enemy combatants’.

Hamdan v Rumsfeld 2004- declared the military commissions set up by Bush to try people at Guantanamo Bay was unconstitutional. 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 ruling which became the focus of the 2008 case

Boumediene v Bush 2008- ruled that the procedures set up by the Bush administration and Congress, following the Hamdan v Rumsfeld decision, were inadequate to ensure that the detainees received their day in court. This in turn struck down the congressional act and asserted the Court’s right ti rule over presidential actions in this policy area

Question 30

The US Constitution should be interpretted as a living constitution

Answer 30

The Constitution will quickly become out of date if it is not interpreted in the light of modem developments E.g. LGBTQ rights in Obergefell v Hodges (2015) where the Supreme Court effectively legalised gay marriage across all US states, including 13 states in which it had been illegal before this ruling.

Elected and accountable branches often favour the will of the majority and therefore interpretation of the Constitution can ensure minority rights are also protected. E.g. In the case of Snyder v Phelps (2011) the right to free speech of the controversial Westboro Baptist Church in protesting at soldiers funerals was upheld by the Supreme Court

The Founding Fathers could not have envisaged the world which exists today and some of the words in the Constitution are meaningless without interpretation. E.g. the Founding Fathers were not writing about semi-automatic rifles in the 2nd Amendment.

Question 31

The US Constitution should be interpretted in an ‘originalist’ manner

Answer 31

Interpreting the Constitution makes the Supreme Court an inherently political institution, undermining its neutrality e.g. the changing judicial policy on abortion rights from Roe v Wade 1973 to Dobbs v Jackson Womens Health Organization 2022

Changes required can be left to the elected and therefore accountable branches rather than risking the misinterpretation of the original principles of the Constitution. e.g. In Planned Parenthood of Arkansas v Jegley 2018, which would have resulted in all but 1 abortion clinic closing down, this came into force as the Supreme Court chose not to hear the case

The principles of the Constitution are not relevant. The Founding Fathers wrote the Constitution, using words and text to demonstrate meaning, and it is the meaning in the context of when it was written which should be adhered to. e.g. DC v Heller 2008 the Court ruled against the control laws and the majority of the Court took the view that ‘the right to keep and bear arms’ in the 2nd Amendment is a right of the individual

Question 32

Judicial activism

Answer 32

Liberal activism - Obergefell v Hodges (2015) the Supreme Court effectively legalised gay marriage across all US states, including 13 states in which it had been illegal before this ruling. It also overruled the congressional law Defense of Marriage Act 1996. Therefore, the court overruled the state and the federal government

Conservative activism - Citizens United v FEC (2010) the Supreme Court overturned part of a congressional law, the McCain-Feingold reforms. In allowing money to be seen as a form of free-speech, this fits in with more conservative ideals that embrace meritocracy and a reduction in government interference in individual’s lives. Having earned the money, the individual should be free to spend it as they see fit. Also, activism as it directly contradicted a Supreme Court case from 7 years earlier

Question 33

Judicial restraint

Answer 33

Liberal restraint - Whole Woman’s Health v Hellerstedt (2016) demonstrated a continuing defence of the 1973 decision of Roe v Wade, which initially established a woman’s right to abortion. Cases on abortion have been heard since then, and while some have placed limitations, the unwillingness of the Court to overturn this remained until 2022.

Conservative restraint - Glossip v Gross (2015) upheld the use of the lethal injections to kill prisoners convicted of capital crimes as it did not constitute cruel and unusual punishment under the 8th Amendment. The case suggested that prisoners could only challenge the method of execution by providing an alternative method of execution. The Court argued it was the responsibility of the prisoner to demonstrate that the execution method caused severe pain, not the responsibility of the state

Question 34

Criticisms judicial activism

Answer 34

The Supreme Court is unelected so is unaccountable for the decisions that it makes

The Court can overrule its own decisions, even when the Constitution has not changed, suggesting that the Court is acting politically rather than neutrally

Judicial review interprets the Constitution, meaning there are few effective checks on the Court’s power as constitutional amendments are so difficult to pass

Question 35

Criticisms on judicial restraint

Answer 35

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 Supreme Court is therefore the only branch that can deal with controversial issues or minority rights without fear of public reprisals

If the Supreme Court defers to elected branches of government, this might allow laws and policies which directly contravene the Constitution to stand

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

Question 36

The Supreme Court is imperial (overly powerful due too a lack of effective checks and balances on its power)

Answer 36

While justices can in be impeached, this process has never been used to remove a justice and only ever been once, in 1805. This further advances the unaccountable nature of the Court.

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 constitutional amendments to achieve this has only occurred once, in 1913.

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

Question 37

The Supreme Court is not imperial

Answer 37

The Court has often shy away from hearing cases in which public opinion is closely divided, such as gun control cases.

The Constitution provides the single biggest limit on the Supreme Court. Regardless of the justices’ personal or political opinions, cases and decisions must be rooted in the Constitution. Even with the power to interpret this, they can only interpret what is there.

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 38

The Supreme Court is not political

Answer 38

The Supreme Court 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 decision-making process.

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.

Usually upwards of two-thirds of cases are decided by more than five justices. As the Court is broadly divided into ‘liberals’ and ‘conservatives’, this suggests the justices must be basing their decisions on something other than their personal opinion. There have been numerous cases where, even in controversial and landmark decisions, a justice has seemingly voted against their known personal ideology in a case decision.

Question 39

The Supreme Court is political

Answer 39

The impact of many rulings is inherently political, striking down actions or acts of the elected branches of government or even, in the rare case of Bush v Gore (2000), effectively deciding who will be the next president.

The appointment process is inherently political and seems to be getting more so. Since 2006, appointment votes have been more obviously divided on party lines, and the nominations of Garland and Kavanaugh were particularly contentious.

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.