4. US Supreme Court and civil rights

Question 1

What is the Supreme Court?

Answer 1

• Upholds the constitution
• Not a trial court e.g. the overturn of Roe v Wade
• Highest source of judicial power in the US.
• Established by Art.III.

Question 2

What are the three judicial branches and what they do?

Answer 2

• Highest Court and reviews all the cases of the courts below it (circuit courts - named this as the country is geographically divided into boundaries/circuits)
• The circuit courts hear case appeals for lower courts and reviews decisions of lower
• District courts (named district as the country is divided into small sections/districts). Every state has at least one district but some have more e.g. Washington, California, etc.

Question 3

Who are three examples of current members/ judges of the Supreme Court?

Answer 3

• Chief Justice John Roberts appointed by George W. Bush and their political philosophy is conservative
• Neil Gorsuch appointed by Donald Trump and their political philosophy is conservative
• Elena Kagan appointed by Barack Obama and their political philosophy is liberal

Question 4

What are the powers of the supreme court established by constitution?

Answer 4

• Art III established it
• Cannot initiate cases, must wait for constitutional disputes to arise
• Life tenure
• Appellate jurisdiction- final court of appeal
• Art II, sec.2 - appointment process

Question 5

What two cases support the idea of the supreme court’s power of judicial review?

Answer 5

• Marbury v Madison (1803) - First time the court overturned an Act of Congress
• Fletcher v Peck (1810) - Power was further defined. The court overturned state law for the first time

Question 6

What are the powers of the supreme court not established but implied by constitution?

Answer 6

• Power of judicial review. E.g. Marbury v Madison (1803), Fletcher v Peck (1810)
• Congress can establish inferior courts. 13 Circuit Courts
• Determine number of justices - (last time this was threatened was in 1935 under Roosevelt he wanted to increase the number from 9 to 14 because they were trying to block his new deal - the threat was enough for them to back down)

Question 7

What are the powers of the supreme court through acts of Congress (under constitutional authority)?

Answer 7

• Congress can establish inferior courts. 13 Circuit Courts
• Determine number of justices

Question 8

How is the supreme court independent?

Answer 8

• Separation of powers - there can be no pressure from either the executive or the legislature
• Appointment process - the president nominates and the senate confirms
• Life tenure - A justice can only be removed by impeachment if they acted illegally
• Salary - Art III protects the pay of judges

Question 9

What is the judicial review process?

Answer 9

• Process where the court must decide whether the constitution has been breached or not
• No duty to heat a case - they choose, 100 or so a year
• All nine justices will hear from lawyers for the plaintiff and the defendant
• Case is discussed in private afterwards and a majority decision reached
• Each justice will write their opinion which is then published

Question 10

What is the three step appointment process of someone in the supreme court?

Answer 10

• Step one - Vacancy arises
• Step two - president nominates a new justice
• Step three - Senate judiciary committee hold hearings and then recommend to the full chamber. The American Bar Association issues a rating and the senate votes. A simple majority is sufficient

Question 11

Who are some examples of nominees to the supreme court who were unsuccessful in the amendment process?

Answer 11

• Robert Bork, 1987, questions about his role in the Nixon administration Failed in the senate vote
  Harriet Myers, 2005, attacked by Republicans for not being sufficiently conservative and Democrats for lack of experience - withdrew
• Merrick Garland, 2016, Senate refused to hold a vote
  Merrick Garland

Question 12

What are the strengths of the appointment process of supreme court members?

Answer 12

• Ensures independence - The life appointment and the use of separation of powers and checks and balances, after careful scrutiny, prevent a justice feeling under obligation to any one political institution or public opinion
• Ensures judicial ability - Nominations are carefully scrutinised by the Senate Judiciary Committee and rely on a full Senate vote, they are vetted for their ability to operate as a justice on the highest` court in the United States
• Ensures personal suitability - The intensive nomination also ensures that there are no historical concerns or character flaws e.g. the nomination of Douglas Ginsburg by Reagan who was withdrawn after evidence emerged of previous marijuana use

Question 13

What are the weaknesses of the appointment process of supreme court members?

Answer 13

• Nomination process is politicised - The president’s own policy preferences infect the Court. This makes the Supreme Court a highly political body and threatens the neutrality of the court and its rulings. There’re constant criticisms that a justice has not based a decision on the Constitution. This threatens the Court’s authority - and the Constitution itself - with the risk that rulings are not respected. The decision of justices to retire can also be seen as a political decision. with a justice choosing to retire at a point where a like-minded president is in office
• Ratification process is politicised - Increasingly the Senate appears to be acting in a partisan manner, supporting or opposing the nomination according to which president made it. E.g. the nomination of Bork (1987) appears to be something of a turning point. The Bork nomination was rejected, by Democrats in particular, who tried to prevent a strong conservative influencing the outcome of Court decisions. Since them , hearings have become more politically charged. This affects the neutrality of the Court as justices become entangled in a political dispute between Democrats and Republicans. Of the last four justices eventually nominated, all were opposed by more than 30 senators
• Ineffective - Because of politicisation, nominees tend to avoid giving much detail of their views of the Constitution and recent constitutional issues, so the process fails to provide adequate scrutiny of the nominee. Nominees avoid what was arguably Bork’s mistake of being very open about their views e.g. Bork said that Roe v Wade had little or no legal basis

Question 13

What are the 4 factors influencing the president’s choice of nominee?

Answer 13

• Judicial ability - The most important quality. Elena Kagan’s lack of judicial experience (her background was in academia) was raised by Senator Jeff Sessions in her confirmation hearings.
• Ideology - A major factor explaining why some people voted for Trump in 2016.
  A president will usually appoint somebody that shares his political philosophy.
• Social characteristics - Gender, race and geographical diversity are now taken more seriously.
  Note that in 1991, George Bush Sr replaced the first black Supreme Court justice, Thurgood Marshall with Clarence Thomas, the second black person on the bench.
  (When George W. Bush was thinking about who to appoint in the vacancy before Harriet Myers and he said to his assistant that anyone but a white guy but in the end it turned out that way)
• Political motivations - A president facing a hostile senate may have to make a nomination that he knows will be acceptable to them, or somebody that will gain him votes with key groups.

Question 14

What is the composition and balance of the court?

Answer 14

The Warren Court 1953-69:
- Earl Warren
- No women at this point
- Quite a liberal court.
- Brown v Board of Education (1954) - Segregation in schools was unconstitutional and there had to be racial integration in schools
- Miranda v Arizona (1966) - If the police arrest you, they must read you your Miranda rights
- Plessy v Ferguson (1896) - Segregation is acceptable under the constitution as long as both facilities are of equal value/standard
- Described as an activist court.

The Burger Court 1969-86
- Also quite liberal
- Rove v Wade (1973)

The Rehnquist Court 1986-05
- More restrained. Halted decades of expanding federal power over the decades.
- Associated more with states’ rights.

The Roberts Court 2005 – present
- More conservative decisions
- Citizens United v FEC (2010) - allowed people to donate whatever amount they want to political parties and candidates on the groups of freedom of speech,
- McCutcheon v FEC (2014)
- Shelby County v Holder (2013) - Supreme Court removed a rule that required some states to get federal approval before changing voting laws. The decision raised concerns about potential discrimination in voting
- Occasional liberal decisions, Obergefell (2015) - Legalisation of gay marriage
- NFIB v Sebelius (2012) - Upheld Obamacare
- In both occasions, Roberts sided with Liberals - doesn’t matter because there’s a conservative majority of 6 to 3
- Overturn of Roe v Wade

Question 15

What are some examples of major public policy cases?

Answer 15

(All either removed, upheld or established new public policy)

• DC v Heller (2008) - Guns
• NFIB v Sebelius (2012) -
• 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 p, thus protecting states’ rights to decide election laws
• Riley v California (2014) - 4th amendment case that unanimously protected people from unwarranted police searches of their mobile phone
• 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
• Whole Woman’s Health v Hellerstedt 2016 - maybe about Reproductive issues?*

Question 15

What is judicial activism and its role?

Answer 15

• An approach to interpretation of the Constitution
• Judicial activists are judges who see their power as an opportunity to change or re-interpret laws and overturn previous court decisions. Activism involves the Court overturning other political institutions
• This activism reflect itself in the approach of an individual justice who is associated with a particular stance, which they use to challenge political institutions. However, it is most forceful when used by the majority on the Court, and is most easily seen over a series of cases where justices consistently appear to be attempting to challenge political institutions. However, it is most forceful when used by the majority on the Court, and is most easily seen over a series of cases where justices consistently appear to be attempting to challenge political institutions.
• A judicial active court is likely to have a major impact on public policy. Judicial activism is associated with the Warren Court 1953-69, which gave a series of rulings that promoted civil rights, typically at the expense of state law. This civil rights agenda can be seen in cases such as Brown v Board of Education 1954 and Miranda v Arizona 1966

Question 15

What is judicial restraint and its role?

Answer 15

• Its the opposite of judicial activism. Justices may or may not have a personal bias, but their approach to judicial interpretation is to limit the extent to which they overturn political bodies
• This could be based on a view that, as an unelected body, the Supreme Court should defer to institutions with greater democratic legitimacy.
• It is an approach to the interpretation of the Constitution in which courts show deference to wishes of political institutions
• It suggests political institutions such as Congress should only be overturned if there is clear evidence that the Constitution has been broken. This judicial philosophy limits the impact the Supreme Court has on public policy
• Judicially restrained judges put far greater stress on previous court rulings and usually adhere to precedence

Question 16

What is the view of the protection of rights and civil liberties?

Answer 16

• A major bone of political contention is how far the court should go on the issue of rights
• Owing to the vagueness of constitutional rights in the Bill of Rights, this can allow the court quite a wide scope on the interpretation of civil liberties within the Bill of Rights.

Question 17

What are examples of the court having a wide scope on the interpretation of civil liberties within the Bill of Rights?

Answer 17

• 1st amendment (Freedom of religion) – has been used to rule against school prayer. (Freedom of speech) – has been used in issues like flag burning and campaign finance
• 2nd amendment (Right to bear arms) – DC v Heller (2010), Washington D.C. law overturned banning handguns. Some argue the original intent was to promote the power of states to protect themselves from federal government or foreign invasion. This case sets a precedent applying the right to individuals
• 4th amendment (Freedom from unreasonable searches/seizures) – Riley v California (2014) prevented warrantless search of the mobile of an arrested person. The Patriot Act 2001 has been controversial here
• 8th Amendment (Freedom from cruel and unusual punishment) – position of the death penalty and its administration, Glossip v Gross (2015), the court refused the argument that the first drug in the three drug execution was insufficient to prevent pain of the other two
• 10th Amendment (Reserved rights of states) – used successfully in Printz v US (1997) protecting states from requirements to create gun restrictions under federal Brady Act 1993

Question 17

What’s the view on rights protected by supreme courts rulings?

Answer 17

• There is a dispute over individual states’ rights versus those of individuals.
• The implications of the Shelby County v Holder decision gave priority to the states to determine their own individual electoral laws.
• This has led to accusations that states in the deep south are now drawing up new electoral laws with the aim of disenfranchising African-Americans.
• 1973, Roe v Wade - The court effectively legalised abortion on a federal level by interpreting the right to privacy under the 14th amendment as including that to the right to an abortion (Was overturned because they said it was a state matter and not up to Federal Court)
• In Obergefell v Hodges (2015), the court legalised same-sex marriage under the interpretation of due process and equal protection of the 14th amendment. The majority verdict stated that individual state bans on gay marriage discriminated against LGBT citizens and their right to marry.

Question 18

What are the 3 perspectives of the Supreme Courts effectiveness in protecting rights?

Answer 18

• Power – how much of it does the court have to protect civil liberties? Although the court has the entrenched power of judicial review, constitutional amendments CAN overturn its rulings (rare) or they can simply be ignored. E.g. Brown v Board of Education (1954), not fully enforced until the Civil Rights Act 10 years later.
• (Can make a legal ruling but cannot enforce it)
• If the court makes a ruling and congress doesn’t like it and the president, the only way they can amend it is by a constitutional amendment
• Will – how much willingness is there to protect civil liberties? The vagueness of the constitution allows justices a huge amount of personal control in how far they wish to promote civil liberties. Plessy v Ferguson 1896 - Segregation was allowed as long as facilities were of equal value/standard (However, there was no will to enforce it), Shelby County 2010 - There was a will on the court to change voting rights legislation and the reason, John R. times have changed and the south has moved on. The split in laws comes down to ideologies on one side, they can’t choose cases to enforce, however the will needs to be there and the ideology …
• The will needs to be there to actually enforce the law
• Ideology – liberals and conservatives both claim the constitution supports their preferred rights. Conservatives for instance strongly claim that the 2nd amendment gives individuals a right to a gun whereas liberals who strongly support abortion and LGBT rights claim the constitution upholds these rights too

Question 19

What are the problems with race and rights within US politics?

Answer 19

• Race and rights are a thorny issue in US social and political history.
• From the abolition of slavery after the Civil War (1861-65) through the fight for civil rights in the 1950s and 60s to the election of Barack Obama in 2008, there is still racial inequality and injustice.
• Although minority representation is improving, there is still the question of voting rights and the tricky issue of affirmative action - Started by Kennedy in 1961. It was an acknowledgment that there was a difference in educational and employment opportunities for African Americans. He wanted to give more support to African Americans in employment and education opportunities to make the federal government more diverse etc.

Question 20

What are the methods used by racial rights campaigners?

Answer 20

• Demonstrations and civil resistance are frequently held such as over the Shelby decision, the policies of President Trump and the Ferguson riots. The NAACP held a series of ‘Moral Monday’ demos and peaceful sit-ins, particularly in North Carolina where the introduction of photo i.d. laws and felony voting restrictions (following the Shelby decision) were seen as attempts to restrict the number of black voters on roll.
• Legal methods such as challenging states in the courts over failures to register voters have been successful – National Council of La Raza, a Hispanic rights group, successfully challenged Nevada in 2016 over this.
• Voter registration drives have gathered pace since the 1960s also. In 2016 Native American social action groups founded nativevote.org to assist the Get-Out-The- Native-Vote voter registration drive (Started by Obama)

Question 20

How effective and influential have racial rights campaigns been through voting rights (with examples)?

Answer 20

• Voting rights – before the 1964 Civil Rights Act and the 1965 Voting Rights Act, blacks were effectively locked out of the political process in the south through a series of measures such as literacy tests and felony voting restrictions.
• Illiterate whites could get around the literacy test by the ‘Grandfather Clause’. This stated that anybody who had had the right to vote before the Civil War or was related to somebody who was allowed to vote, could vote.
• The Civil Rights Movement finally led to the Civil Rights Act 1964 and the Voting Rights Act 1965 which abolished these restrictions.
• Despite this, blacks have usually been less likely to turn out to vote over the years.
• However in 2008 and 2012, it was a combination of an above average turnout amongst blacks and Hispanics that helped carry Obama through two election victories.
• This dropped back in 2016 and probably played a part in Hillary Clinton’s failure to win.
• Since Shelby, states in the deep south have been free to re-draft their voting laws without having to first get preclearance from US Attorney General. Since then, states like North Carolina have gerrymandered their districts to favour Republicans.
• The NAACP continues to challenge these practises in the courts with no support from the Trump administration.

Question 21

How effective and influential have racial rights campaigns been through representation (with examples)?

Answer 21

• Policy and parties – as southern whites have gradually been abandoning the Democrats since Presidents Kennedy and Johnson’s embrace of civil rights in the 1960s, support for the parties has become more racially distinct.
• New Deal Coalition (1930s - 1980)
• Liberal whites in the north (e.g. JFK)
• African Americans (living in the cities of the north)
• Ethnic writing class white Americans (Italian/ Polish etc.)
• Southern Democrats (‘Dixiecrats’) - pro-segregation southern whites who doe economic reasons supported the new deal (‘Sold South’)
• Lyndon Johnson - 1964. Southern whites turned to the republican candidate Barry Goldwater
• 1968 - George Wallace
• 1972 - Richard Nixon ‘Southern strategy’
• This is even more stark in the Deep South
• **Positions of power **- The 115th Congress (2017-19) was the most diverse ever, but the 116th Congress, elected in the 2018 midterms has surpassed it.
• Whilst the position of minority groups in the House of Representatives looks encouraging, it is not as good in the Senate.
• Some takeaways from the 2018 midterms:
• Alexandria Ocasio-Cortez, a Latina woman, 29, is the youngest woman elected to Congress in US history.
• Rashida Tlaib is among the first two Muslim women elected to Congress is US history.
• Ilhan Omar joins Tlaib as one of the first two Muslim women in modern US history to be elected to Congress. She’s also the first Somali-American woman to achieve the same.
• Sharice Davids is the first Native American woman elected to Congress in US history.
• Ayanna Pressley has become Massachusetts’ 1st black congresswoman.

Question 21

How effective and influential have racial rights campaigns been through affirmative action (with examples)?

Answer 21

• Affirmative action is a process in which additional benefits are provided to groups that have been historically discriminated against.
  -Quota - a set percentage of spaces specially allocated to a particular ethnic group
• Begun on President Kennedy’s instruction to the executive branch to take care to employ minorities, it was developed to include racial quotas for university places, the awarding of federal contracts and employment by government.
• Affirmative action has been banned in a number of states but the federal government said you can’t use affirmative action in a mechanistic way, however it can be used in a more subtle way
• Whereas the long term impact of AA has led to a rise in education standards and the black middle class, it has started to be scaled back in recent years with states like California, Texas and Michigan ending it.
• Affirmative action has lead to a growth in the black middle class which is more very established
• Also, there’s an increase in the number of African American undergraduates and since it’s been banned the number of African American graduates has significantly dropped
• Fisher v University of Texas (2013) - Claimed that although they had the points to get in that they were declined as someone was chosen over her on the basis of the other person being from an ethnic minority taking her place due to the use affirmative action
• Asian Americans claim that they’ve missed out on a lot of Ivy League spots because the schools favour African American students with the same or even slightly lower scores and they feel like they’ve been discriminated against

Question 22

What are the main powers of the Supreme Court?

Answer 22

Judicial review - Can overturn any other institution if it views actions as unconstitutional, based on idea of constitutional sovereignty, can overturn elected bodies, such as president or Congress, especially powerful if the Supreme Court applies judicial activism

Interpretation - Constiution is vague and its giving justices great latitude in applying personal views, a more detailed constitution would undermine their power, vagueness magnifies power of judicial review

Independence - Court 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 amendment process

Question 22

What are the main limits of the Supreme Court?

Answer 22

Wording of Constitution - Court is limited to this wording, limits extent to which justices can interpret even ambiguous parts - limits the elasticity of the Constitution, weaker if it applies judicial restraint

Limited jurisdiction - Can only deal with constitutional issues, weaker than other branches in controlling policy and influencing people’s daily lives, does not deal with annual budget e.g. foreign policy decisions

External pressure - Subject to exetrnal influence or restraint, justices influenced by public opionion or pressure groups, presidents authority may undermine court, can ultimately be overturned by constiutional amendment

Question 23

What is the ideologically motivated or neutral decision-making diferences between political and judicial bodies?

Answer 23

SC is judicial - Justices’ decisions have to be based in the Constitution. Majority opinions must explain how the Court has applied the Constitution to a specific case to specific articles or amendments. 9-0 decisions suggest that justices are not ‘applying personal values but enforcing constitutional rules. Justice Kennedy indicated that he did not support flag burning but nonetheless interpreted the Constitution to overturn the Flag Protection Act saying ‘sometimes we must make decisions we do not like… because they are right, right in the sense that the law and the Constitution… compel the result’.

SC is political - Justices apply their own values when applying the constitution. The vagueness of the Constitution exacerbates judicial bias. This can be seen when an individual justice consistently gives rulings that please one ideological group. While 9-0 rulings are common, the Roberts Court has typically split 5-4 on the most significant cases. Chief Justice Roberts accused the Court of political bias in the Obergefell case. Justice Marshall, the first black justice on the Court, even appeared to declare a lack of neutrality, making his civil rights agenda clear: ‘You do what you think is right and let the law catch up’

Question 24

What are the politically influenced and active or independent from external pressure and political processes diferences between political and judicial bodies?

Answer 24

SC is judicial - Justices can avoid being political because the Constitution protects them from political influence. This allows them to maintain their neutrality, free from political interference. This can be seen in the US v Nixon case in which three Nixon appointees ruled against him. Justices are also careful not to stray into the world of politics. When liberal Justice Sotomayor was asked if she was ‘apprehensive’ about President Trump, she was careful not to show her own views, saying that she would answer the question in a different way adding that ‘we can’t afford a presidet to fail’

SC is political - Politicians try to put pressure on justices. For example, presidents may attack a ruling or even give speeches appealing to public opinion before a ruling is given. In his State of the Union address in 2010 President Obama attacked the Citizens United ruling with justices of the Court in front of him, prompting Justice Alito to mouth the words ‘not true’. It is difficult to determine whether justices are swayed from their constitutional opinion by strongly held public views. Court rulings do often reflect changes in societal values: Brown v Board of Education 1954, Roe v Wade 1973 and Obergefell v Hodges 2015 are all very much of their time

Question 25

What are the unlimited juridistiction in policy-making or restricted to enforcing politician’s rules diferences between political and judicial bodies?

Answer 25

SC is judicial - The Supreme Court is judicial because it can only apply the law and the Constitution, unlike political institutions, which can create policy in any area they wish. Justices are not free to initiate cases but must wait for a constitutional claim to be presented. There are many policies in which the Court has no role: these are left to political bodies to decide. It is inconceivable that the Supreme Court would review the whole annual federal budget or the president’s military stratergy. In areas such as foreign and security policy, the Court seems reluctant to get involved. During his confirmation hearings, Gorsuch said that there are no such things as Democrat or Republican judges, there are only judges

SC is political - Justices have a big political impact, affecting the power of political institutions, the rights of the individual and the fate of a great deal of public policy. Like political bodies, the Court can deal with any issue it chooses due to the ambiguity of the Constitution. The Supreme Court has been likened to a policy-maker because it appears to use personal values to achieve its own public policy goals. With the Supreme Court ruling on health, education, defence, the enviornment, immigration reform and economic policies, it is hard to see that it has a limited remit kept within the judicial sphere. The Bush v Gore 2000 ruling was criticised as politically motivated, with the justices appointed by Republican Presidents Reagan and George H.W. Bush giving an interpretation that prevented Al Gore from becoming president. This ruling paved the way for George W. Bush to become president, having a huge impact on the policy direction of the US.

Question 26

What is originalism?

Answer 26

The idea that the meaning of the US Constiution is fixed and should not be subject to interpretation

Question 27

What is the ‘Living Constiution’?

Answer 27

The idea that the Constiution is an evoluntionary document that can change over time through reinterpretation by the Supreme Court (linked to loose constructionism)

Question 28

How is originalism a distinct approach to judicial interpretation?

Answer 28

• Justices may interpret the Constitution based on the intended meaning of the authors of the Constitution, or on what the average person would understnad as the meaning at the time of writing
• Justices who practice this approach will verse themselves in the history of the writing of the Constitution, in particular the arguments presented at the Philadelphia convention, as well as the writings of some of the authors of the Constitution
• e.g. this approach is associated mostly with Justice Thomas, in 2011, he dissented in a 1st amendment case that struck down a California law regulating violent video games for minors, because minors were not seen by 18th-century society as having 1st amendment rights. He argued: ‘The practices and beliefs of the founding generation establish that “the freedom of speech”, as orignally understood, does not include… a right of minors to access speech without going through the minors’ parents’

Question 29

How is ‘the living constitution’ a distinct approach to judicial interpretation?

Answer 29

• Based on the idea that the Constitution has to be applied to modern circumstances. The Living Constitution approach, or loose constructionism recognises the practical difficulty of applying an originalist position. It can also be based on the idea that originalism may yield unacceptable rulings in modern society.
• e.g. It may have been acceptable in the past for the president to consult Congress before military action. The advent of nuclear missiles and jet engines may make such requirements less palatable.
• One majority opinion of the Court has asserted the necessity of the Court to ‘draw its meaning from evolving standards of decency’ in applying the vague 8th amendment. The Living Constitution approach tends to ignore the practice of stare decisis in which court rulings are based on precedent. The use of stare decisis would restrict the living constitution approach

Question 30

What is ‘loose constructionism’?

Answer 30

A legal philosophy that favours a broad interpretation of a document’s language

Question 31

What is ‘strict constructionism’?

Answer 31

A philosophy that favours looking solely at the written text of the law

Question 32

What is ‘stare decisis’?

Answer 32

Doctrine built on the idea of standing by decided cases, upholding precedents and maintaining former adjudications - it tends to favour status quo

Question 33

Arguments in favour of originalism over ‘the living constitution’ as the approach to judicial interpretation?

Answer 33

• It restricts the extent to which justices can force their own personal values on the Constitution and important constitutional disputes
• It gives greater authority to the constitution, which can be seen as a more objective document
• If new principles or values are to be placed in the Constitution, this should be done through the democratic process, not enforced on society by unelected justices

Question 34

Arguments in favour of ‘the living constitution’ over originalism as the approach to judicial interpretation?

Answer 34

• It stops the Constitution becoming an outdated irrelevance, and lets it reflect the values and practical needs of modern society
• It is virtually impossible to discern the exact views and values of the Founding Fathers and how this applies to modern society. Originalists are no more objective than Living Constitutionalists
• The Founding Fathers may have been deliberately vague, allowing judicial discretion. Is originalism, basing a ruling in the intent or meaning of the Founding Fathers, something that the Founding Fathers intended the Supreme Court to apply

Question 35

What are the 3 measures to promote equality which are the protection of rights

Answer 35

• Legal and constitutional - measures created by the Constitution or acts of Congress that try to enforce racial equality e.g. 14th and 15th amendment, civil rights act, voting rights act, DREAM act
• Political - Actions by politicians, parties and pressure groups aimed at overcoming inequality. This could include voter mobilisation, publicity campaigns and demonstrations, as well as initiatives by the president e.g. NAACP and Nativevote.org voter participation, NAACP Moral Mondays, Obama creation of annual White House Tribal Nation summit
• Socio-economic - This can involve policies that are targeted at helping racial minorities specifically in social or economic areas, such as affirmative action or funding. There are also many policies that are beneficial to low-income groups regardless of race, but have a disproportionately positive effect on racial minority groups e.g. Affirmative action, affordable Care Act, Race to the Top$4.3bn education plan, My Brother’s Keeper Initiative