4. us supreme court and civil rights

Question 1

the nature and role of the supreme court

Answer 1

• the US constitution states in article 3, section 1: ‘the judicial power of the united states shall be vested in one supreme court as the congress may from time to time ordain and establish’
• the nine justices of the supreme court are deemed to be independent in nature
• one of the main reasons for this is security of tenure
  unlike the president, justices will never face re election and have no limit on how long they can serve
  they also have the significant power in deeming that congress or state laws are unconstitutional
• the current chief justice in John Roberts, who has appointed to the bench in 2005

Question 2

article 3, section 2 of the constitution (enumerated powers of the supreme court)

Answer 2

• supreme court has original jurisdiction especially on cases at state v. state - the court is mostly commonly a court of appeals and appellate jurisdiction
• trial of all crimes, except in cases of impeachment
• the constitution does not mention judicial review

Question 3

the process of judicial review

Answer 3

• the most significant power of the supreme court is not directly mentioned in the constitution
• the power of judicial review is in fact an implied power of the supreme court, which is now respected and observed as an underpinning (and unwritten) convention
• judicial review - the power of the supreme court to declare acts of congress, actions of the executive, or acts or actions of state governments, unconstitutional

Question 4

supreme court procedures

Answer 4

• although the supreme court has original jurisdiction in some areas (e.g., when it heard the Bush v. Gore 2000 case), it is largely an appellate court: appeals are submitted to it by lower federal and state courts, and the supreme court decides which of these it will hear
• it makes this decision by using the ‘rule of four’, which says if at least four of the nine justices wish to hear a case, it will be heard
• a supreme court ruling is determined on a simple majority system: at least five justices must agree a ruling
• a majority opinion is issued explaining why a decision has been reached, and where appropriate, a minority opinion will explain why some of the justices were unable to agree

Question 5

appellate court and original court

Answer 5

• original jurisdiction - the supreme court is the first and only court to hear a case
• appellate jurisdiction - having the power or authority to review and decide appeals as a court

Question 6

‘rule of four’

Answer 6

supreme court practise of granting a petition for review, only if there are at least 4 votes to do so

Question 7

majority and minority opinion

Answer 7

• majority opinion - clarifies the court’s reasoning so that it can be applied in future decisions by lower courts
• minority opinion - the justices who disagree will write a dissenting opinion, saying that they disagree with the majority decision and the reasons for that decision

Question 8

how the court makes judgements (judicial philosophy)

Answer 8

in researching their decision on a particular case, justices are likely to take into account several factors:
1. wording of the constitution
2. precedent
3. amicus curiae briefs
4. public opinion (court rulings often seem to reflect the prevailing public opinion at the time)

Question 9

wording of the constitution

Answer 9

• the supreme court’s primary responsibility is to interpret and apply the constitution
• due to vagueness and a lack of clarity in the constitution, there will be conflicting interpretations by different people at different times
• strict constructionists tend towards a narrow interpretation of the constitution, and are keen to uphold states’ rights
• they tend to be more ‘conservative’ (more literal interpretation of the constitution)
• loose constructionists tend towards a willingness to reinterpret the constitution light of contemporary social and economic circumstances, in the belief that unconstitutional principles are evolving
• loose constructionists are more usually ‘liberal’

Question 10

precedence

Answer 10

• the principle of stare decisis suggests justices should make rulings that are in line with earlier rulings on the same point of contention
• acceptance of this precedent is usually a sign of judicial restraint: where the court is viewed as a neutral referee and very much the inferior branch of government
• in contrast, judicial activism implies that the court puts itself on a more even footing with the other branches of government, seeing itself as integral to shaping of public policy and less inclined to observe precedence
• Trump has 3 supreme court nominations - all middle aged, therefore Trump will continue to influence the court for a long term (e.g., the overturning of Roe v. Wade, which goes against precedence/judicial activism, more commonly associated with loose constructionists)
• landmark cases go against precedence, e.g., Brown v. board of education

Question 11

amicus curiae briefs

Answer 11

• these ‘friends of the court’ briefs come from interest groups and other interested parties, such as businesses and the executive
• they can be very influential and can provide expertise, which the justices cannot be expected to possess on all matters

Question 12

the appointment process

Answer 12

• appointments are infrequent (there were no vacancies between 1994 to 2005)
• appoints are for life/security of tenure
• only 9 justices
• very powerful, because of judicial review
• vacancy - a vacancy becomes available due to retirement, death or impeachment of a supreme court justice
• nomination process - the president instigates a search, WHO would begin the search, party members in congress many influence and may seek advice from the ABA (American bar association), state courts, department for justice for possible nominees and interviews short listed candidates (private, where it can become politicised)
• president announces nominee
• confirmation process (public) - ABA standing committee give the nominee a rating, ‘well qualified’ expected
• hearing by senate judiciary committee (senate committee have no timetable, therefore hearings can last as long as they want)
• senate judiciary committee votes
• full senate vote - ratification

Question 13

criticism of the system

Answer 13

• politicised by the president (process dominated by the president)
• politicised by the senate
• politicised by the media (justices get labelled by the media as ‘conservative’ and ‘liberal’, confirmation process is televised)
• appointment system is complex (they are infrequent, security of tenure, court has lots of power)

Question 14

supreme court

Answer 14

• supreme court justices are appointed by the president after a hearing in front of the senate judicial committee and confirmation by the senate
• the support of only a simple majority
• there is an expectation that nominees will have had extensive experience at either federal or senate level
• pressure groups are likely to campaign heavily in support of, or in opposition to a nomination
• gender, race, and geography are all important considerations, and a degree of balance is usually sought
• there is at present, one black supreme court justice and one female justice
• appointments are overly political, almost all being drawn from the party of the president
• attitude to abortion seems to have become the ‘litmus test’ for nominees

Question 15

swing justice

Answer 15

• a justice who is ideologically in the middle of the 9 justices
• e.g., Sandra O’Connor

Question 16

Merrick Garland nomination

Answer 16

• senate majority leader, Mitch McConnell declared any appointment by the sitting president to be null and void
• he said the next supreme court justice should be chosen by the next president
• politicised because it was backed by republicans as Obama’s nomination would change the make up of the court

Question 17

the supreme court and public policy

Answer 17

• as the supreme court is interpreting the constitution, which is sovereign, its rulings are effectively sovereign
• this gives it considerable power and influence over the policy that government creates, either by upholding it, striking it down, or in some cases, choosing not to hear a case at all
• the court can have a huge impact by upholding legislation, this allowed the continued enforcement of this legislation, but also lent a degree of sovereignty to the law

Question 18

citizens united v. FEC (2010)

Answer 18

• policy area - elections and election spending
• ruling - some provisions of the bipartisan campaign reform act violate the 1st amendment
• the ruling created a new policy, and allowed for the development of super PACs
• nine unelected justices had a substantial role in shaping the policy surrounding elections in the USA and overturning a law created by elected representatives
• it was heavily criticised by Obama at the 2010 state of the union

Question 19

California v Texas (2020)

Answer 19

• policy area - healthcare
• ruling - the individual mandate being reduced to $0 by the tax cuts and jobs act (2017) did not invalidate Obamacare
• by a ruling of 7 -2, the court again upheld Obamacare, but it did not rule on the constitutionality of the individual mandate (the requirement for individuals to have health insurance or face a fine)

Question 20

Dobbs v Jackson (2022)

Answer 20

• ruling - Mississippi 15 week abortion ban law
• overturned Roe v. Wade, and returned decisions on abortions to states
• trigger laws were ready to go in many states
• notably, in their confirmation hearing, Coney Barrett, Gorsuch, and Kavanaugh all said Roe was ‘settled’, but voted against it

Question 21

Obergefell v Hodges (2015)

Answer 21

• ruling - the right to marry is guaranteed to same sex couples by the 14th amendments
• the ruling furthered the 2013 ruling of US v. Windsor, before which same sex marriage was legal in only 12 states
• this ruling made same sex marriage legal in all 50 states, overturning the law in the 12 remaining states in which it was outlawed

Question 22

effectiveness of rights protection

Answer 22

• the role of an independent and neutral judiciary in protecting rights is crucial to a liberal democracy
• free of accountability to the public, a judiciary can rule to ensure the protection of rights for all
• the rights of one group may be protected, but this may be to the detriment of another - e.g., Obergefell v. Hodges (2015), the rights of the queer community were protected, while the religious rights of people were arguably infringed
• the court has no power to enforce its rulings - they can be circumvented or ignored, e.g., in the 4 cases regarding Guantanamo bay (2004 - 2008), the court found in favour of the detainees, yet nothing was done
• the court hears only about 1% of cases put it in any year
• all judicial action from the supreme court is bound by the supreme court
• the vagueness of the constitution allows a good deal of breadth in the court’s interpretation, so it can use the constitution to protect rights, even when they are not explicitly identified, e.g., the right to abortion, or same sex marriage

Question 23

factors influencing a president’s choice of nomination

Answer 23

• judicial experience
• the outgoing justice
• the demographics of the supreme court
• the ideology of the nominee

Question 24

judicial experience

Answer 24

• it is expected that the nominee should have past experience as a judge and qualified in law
• this was one of the reasons that the nomination of Harriet Miers faced criticism (2005), as she lacked experience as a judge
• the ABA rates candidates as ‘well qualified’, ‘qualified’ or ‘unqualified’ for the role

Question 25

the outgoing justice

Answer 25

• the president may be expected to replace a justice on a ‘like for like’ basis in terms of ideology as this is likely to face less opposition in the senate
• since 2005, the senate votes have become more partisan and the ‘like for like’ standard is less commonly applied
• Alito (2006), Kavanaugh (2018), and Barrett (2021) were not ‘like for like’ replacements, all more conservative than their predecessors

Question 26

demographics of the supreme court

Answer 26

• a president may wish to widen the representative nature of the supreme court through their appointments
• Obama appointed two women, and the first hispanic person (Sonia Sotomayor)
• Biden nominated the first african american woman to the supreme court, Ketanji Brown Jackson

Question 27

ideology of a nominee

Answer 27

• almost all nominees are qualified in law and have usually been a judge on a lower court
• from their previous rulings, it is possible to ascertain their ideology and whether it fits with the president’s
• this is not always successful, but it is rare for the president to be wrong
• Kavanaugh appeared on a list of the right wing think tank, the heritage foundation before Trump nominated him

Question 28

comparison of the ideologies on the supreme court

Answer 28

• living constitution (the constitution is a living, organic and evolutionary document that can be changed through reinterpretation, closely linked to loose constructionism) v. originalism (the meaning and interpretation of the constitution are set by the original principles of the document and should not be subject to broad interpretation)
• judicial restraint v. judicial activism
• loose constructionist v. strict constructionist
• conservative v. liberal

Question 29

the length of the process

Answer 29

• the process from nomination to senate ratification usually takes 2 to 3 months
• this is not a problem if the vacancy has been caused by a retiree who remains on the court during the process
• when the vacancy is caused by a death, the court would be left with only 8 justices
• when Obama’s executive order regarding DAPA was challenged in the supreme court, the death of Antonin Scalia meant there were 8 justices to hear the case - the 4-4 tie resulted in Obama’s executive order being stuck down as the decision of the lower court stood
• the length of the process does not help to ensure that candidates undergo vetting and that they are fully suitable for the post

Question 30

politicisation

Answer 30

• the constitution recognised the importance of an independent supreme court
• the appointments since 2006 have seen party line votes in the senate, with relatively few defection across the aisle
• during the hearings of Alito, Sotomayer, Kagan, and Gorsuch, the nominees only spoke for an average of 33% of the time over 4 days of hearings
• the rest of the time was taken up with senators talking, given that the aim of the nomination process is to determine

Question 31

Amy Coney Barrett

Answer 31

• replaced Justice Ruth Bader Ginsburg
• nominated by Trump and ratified by a Republican senate
• was controversial as the senate had help up Obama’s nominee of Garland for 8 months
• Mitch McConnell was accused of hypocrisy in 2020 for agreeing to the seat with only 7 weeks until the election
• Barrett was a conservative catholic, and her nomination gave the court a substantial conservative majority
• the democrats boycotted the vote of the senate judiciary committee, in their seats, they left pictures of people who had benefited from Obamacare (which they were concerned could be struck down under a more conservative court)
• Barrett was approved 12 - 0 by the committee, and was ratified 52 - 48 by the senate, 8 days before the 2020 election

Question 32

president and politicising the supreme court

Answer 32

• presidents invariable try to pick someone with an ideology that aligns with their own, however this is not always successful
• Kennedy was a Reagan nominee to the supreme court, Kennedy proved to be a moderate during his time on the court (voting with both conservative and liberal wings of the court), in defiance of Reagan’s own conservativism
• Eisenhower referred to his appointment of Chief Justice Earl Warren as ‘the biggest damned fool mistake I ever made’, as Warren had been far more liberal than Eisenhower has anticipated, being responsible for some notable liberal rulings, including the decision of Brown v. Board of Education
• in January 2022, a short unsigned note from the supreme court defied president Trump’s request to prevent congress from accessing white house documents from 6th January 2021; the only dissent was Thomas, not any of the three appointments Trump made to the court

Question 33

media and the supreme court

Answer 33

• the role of the media and pressure groups serve to politicise the process
• the ‘media circus’ surrounding the nomination process has grown in recent years
• e.g., protests against Kavanaugh’s nomination, and the coverage they garnered - shows how politicised it has become
• during the appointment of Gorsuch, donors to the judicial crisis network gave $10 million to support his appointment, having given $7 million to oppose Garland’s appointment, a year earlier
• demand justice launched a $1 million campaign to support Jackson’s nomination
• the role of the ABA can also be questioned: it has no constitutional standing, and its members are unaccountable, yet their rating of a candidate can have a huge effect on the candidate’s chances
• this politicisation can be defended, given the unelected and unaccountable nature of the supreme court: the only mandate these justices could claim is that they were appointed by the representatives in the two branches of government, that were elected (lending them legitimacy, meaning that even the more controversial court decisions have been enforced by the other branches of government)

Question 34

how the constitution safeguard the independence of the supreme court

Answer 34

• security of tenure, and protected salary
• consistent structure prevents the other branches of attempting to pack the supreme court with their allies
• separation of powers
• constitutional independence allows the court to check the president and congress

Question 35

protection of rights

Answer 35

• the rights that are protected in the constitution are known as constitutional rights
• the supreme court can only rule on rights for which it can find a constitutional basis
• given the vague nature of the constitution, the court has been able to rule on a range of rights over time

Question 36

the appointment process

Answer 36

1. vacancy - a vacancy becomes available due to retirement, death, or impeachment of a supreme court justice
2. nomination process
   - the president instigates a search, the WHO would begin the search, party members in congress may influence, may seek advice from the ABA (American bar association), state courts, department for justice for possible nominees, and interviews short listed candidates
   - president announces the nominee
3. confirmation process - ABA standing committee give the nominee a rating, ‘well qualified’ expected
   - hearing by senate judiciary committee (they have no timetable and therefore the hearings can go on for however long they want)
   - senate judiciary committee votes
   - full senate vote - ratification

Question 37

the supreme court

Answer 37

• supreme court justices are appointed by the president after a hearing in front of the senate judicial committee, and confirmation by the senate
• the support of only a simple majority
• there is an expectation that nominees will have had extensive judicial experience at either federal or state level
• pressure groups are likely to campaign heavily in support, or in opposition to a nomination
• gender, race, and geography are all important considerations, and a degree of balance is usually sought
• there is at present one black supreme court justice, and four females justices
• appointments are overtly political, almost all being drawn from the party of the president
• attitude to abortion seems to have become the ‘litmus test’ for nominees

Question 38

swing justice

Answer 38

• e.g., Sandra Day O’Connor
• a justice who is ideologically in the middle of the nine justices

Question 39

Merrick Garland

Answer 39

• senate majority leader Mitch McConnell declared any appointment by the sitting president to be null and void
• he claimed that the next supreme court justice should be chosen by the next president
• politicised because it was blocked by republicans as Obama’s nomination would change the make up of the court

Question 40

public policy

Answer 40

• evidence of politicisation
• the court has a quasi legislative power
• it can declare illegal what was previously thought to be legal, a similar effect to an act of congress
• the court’s decisions often have political implications, and can have a major impact upon public policy

Question 41

social policy - abortion

Question 42

affirmative action - social policy

Question 43

gun control - social policy

Question 44

the protection of civil liberty

Answer 44

• the high priority given to the enumerated rights in the bill of rights allows the supreme court to have the final say on the issue of rights
• this power is magnified due to the vagueness of these rights
• the bill of rights give protections, not only to the individual, but the state
• which rights should be protected and which are protected, are a source of contention

Question 45

the bill of rights

Answer 45

• amendment 1 - no established religion, freedom of religion, speech, assembly, right to petition
• amendment 2 - the right of the people to keep and bear arms
• amendment 5 - no deprivation of life, liberty, property, without the due process of law
• amendment 6 - the right to a speedy, and public trial, by an impartial jury
• amendment 8 - no excessive fines or cruel and unusual punishments
• amendment 9 - the enumeration of rights shall not be construed to dent…other retained by people
• amendment 10 - powers not delegated to the federal government are reserved to the state or the people

Question 46

interpretations of the 1st amendment post 1950

Question 47

interpretation of the 14th amendment

Question 48

race and rights

Question 49

civil rights groups

Question 50

NAACP

Question 51

BAMN

Question 52

BLM

Question 53

improvements to voting rights

Question 54

affirmative action

Question 55

representation

Question 56

powers due to judicial review

Answer 56

• the supreme court can strike down the legislation, policies, and actions of the other branches of government, if they go against the constitution
• e.g., US v. Lopez (1995) - held that the federal government’s gun free school zones act (1994) was unconstitutional because this went beyond congress; ‘commerce clause’ powers
• the supreme court can interpret the constitution and give other branches of government more power
• e.g., Gonzales v. Raich (2005) - held that congress can criminalise the production of cannabis under the commerce clause
• the supreme court can use the constitution to protect rights, e.g., Roe v Wade (1973)
• the court gave themselves these powers in Marbury v. Madison (1803), suggesting that the court can expand its own power when it wants
• helps to prevent the other branches from acting in a tyrannical manner, so promotes checks and balances, and limited government
• helps to prevent tyranny of the majority, and protects the rights of minorities

Question 57

powers due to being unelected and having security of tenure

Answer 57

• being unelected and having life tenure means that judges can make unpopular decisions as they do not have to please the electorate or wealthy donors:
• e.g., Obergefell v. Hodges (2015) - the court legalised same sex marriage, despite large numbers of mainly southern, religious who were strongly against same sex marriage
  -could give the court’s decisions a greater mandate as they are impartial
• could give the court’s decisions a lesser mandate because they are undemocratically ignoring the will of the people

Question 58

constrained by the appointments process

Answer 58

• supreme court justices must pass through the appointments process, which means that justices who lack sufficient support by elected representatives cannot be appointed
• e.g., Merrick Garland
• means that judges who lack qualifications or experience cannot be appointed
• also, means that judges who are too extreme cannot be appointed
• however, justices are nearly always confirmed by the senate - the last time that congress formally rejected a president’s supreme court appointment was in 1987 with Robert Bork

Question 59

constrained by congress

Answer 59

• the supreme court is constrained by congress’ power to initiate constitutional amendments, which can negate the court’s decisions:
• e.g., the 19th amendment (1920) - gave the right to vote to women, negating the supreme court’s decision in Minor v. Happersett (1874), which held that Missouri law that limited the right to vote to males was constitutional
• shows that ultimately the supreme court is not above the constitution
• helps to increase public confidence in the government as unpopular decisions of the court can be negated if there is enough support for this
• however, it is rare that constitutional amendments are passed to negate the supreme court’s decision: e.g., senator Bernie Sanders’ saving American democracy amendment (from 2011), which would have negated citizens united v. FEC (2010), failed to be passed

Question 60

constrained by lack of enforcement powers

Answer 60

• the supreme court must rely on the other branches to enforce its rulings, or just hope that citizens will obey them
• when the supreme court declared segregation to be unconstitutional in Brown v. Board of Education (1954), it had to wait for congress to pass the civil rights act (1964) to legitimise and provide funds for desegregation
• promotes branches working together and consensus politics
• however, the other branches will nearly always enforce the supreme court’s rulings, e.g., Bush still enforced Texas v. Johnson (1989), even though he openly criticised it

Question 61

constrained by having no power of initiation

Answer 61

• the supreme court must wait for cases to come before it, rather than actively seeking out cases
• the supreme court has been unable to rule on the constitutionality of the war powers act (1973), because it has not yet been brought to the court
• means that problems can continue for years without being solved
• prevents the court acting like a dictator
• however, the most significant cases are nearly always brought to the supreme court, therefore justices do not need initiation powers, e.g., Obamacare was brought to the supreme court in national federation of independent business v. Sebelius (2012)

Question 62

politicised because of judicial review

Answer 62

• the supreme could can act politically by striking down the legislation, policies, and actions of the other branches of government, potentially meaning that the supreme court has a quasi legislative role:
• e.g., US V. Lopez (1995) - held that the federal government’s gun free school zones act (1994) was unconstitutional because it went beyond congress’ commerce clause powers
• e.g., US v. Windsor (2013) - held that the defence of marriage act (1996), which restricted marriage to being between one man and one woman, was unconstitutional as it infringed on the due process of the 5th amendment
• the supreme court can also interpret the constitution differently to give other branches of government more powers, which can be seen as a political role: e.g., US v. Comstock (2010) - held that it is necessary and proper for the federal government to require the sectioning of mentally ill individuals in federal custody
• the supreme court can use the constitution to protect rights, which can be seen as a political role, e.g., Roe v. Wade (1973)
• goes against the idea of judicial restraint because the judiciary is not leaving key political decisions to the other branches
• could lead to the supreme court acting in a tyrannical manner
• could be seen as lacking a constitutional mandate, and lacking legitimacy because the supreme court gave themselves this power in Marbury v. Madison (1803)

Question 63

politicised because of appointments

Answer 63

• the president nominates supreme court justices, which politicises the appointments process because he will nominate a justice who is ideologically similar to him
• Bush nominated conservatives John Roberts, and Samuel Alito to the supreme court
• the senate confirms supreme court justices, which politicises the appointments process because the party in control of the senate will be able to appoint judges who are ideologically similar to them
• in 2016, republicans in the senate said that they would not consent to any of Obama’s nominees, including Merrick Garland
• pressure groups also have an influence over appointments - when Bush nominated John Roberts (2005), almost 70 pressure groups gave written/oral testimonies
• it reduces the mandate of sitting judges, which could reduce the legitimacy and authority of their decisions
• could reduce public confidence in the court, causing apathy
• however, security of tenure and judicial independence means that political alignment is not guaranteed, e.g. Eisenhower’s nomination of Earl Warren

Question 64

justices are unelected and have life tenure (judicial institution)

Answer 64

• the supreme court is a judicial institution due to being unelected, having life tenure, and being unlikely to be impeached
• this means that judges can act judicially by making independently minded decisions as they do not have to please the electorate or wealthy owners
• Obergefell v. Hodges (2015) - the court legalised same sex marriage, despite large numbers of mainly southern, religious voters who were strongly apposed to same sex marriage, therefore the court was independently minded
• reduces the influence of pressure groups on decisions, so helps prevent tyranny of the majority and elitism
• could increase the legitimacy and authority of decisions
• means that decisions are better for the overall long term prospects of the US

Question 65

judicial restraint (judicial institution)

Answer 65

• judicial restraint - the idea that judges should allow the other branches of government to make social changes rather than promoting desirable social ends themselves, judges should also follow the precedents set by previous court decisions
• e.g., Minnesota v. Carter (1998) - held that the 4th amendment, which protects against unreasonable searches and seizures, does not apply to short term guests in a residency
• leaves key decisions to elected bodies, which promotes representative democracy, and increases the mandate and legitimacy of these decisions
• however, judges also use judicial activism, which could make them political

Question 66

comparing the UK and US supreme court

Question 67

judges and public opinion

Answer 67

• most of the time judges tend to follow public opinion, meaning that they are not being independent minded and could be acting politically
• planned parenthood v. Casey (1992) - followed public opinion by deciding that the right to an abortion did exist nit it could be subjected to reasonable limitations by state legislatures

Question 68

influence of pressure groups

Answer 68

• pressure groups have the ability to influence the court, which reduces the chance of judges being independently minded
• in the 2019-2020 session, more than 900 amicus curiae briefs were filed
• in Grutter v. Bollinger (2003), amicus curiae briefs were directly referenced in the majority opinion

Question 69

Robert Bork (1987)

Answer 69

• was nominated by Reagan and was the last nominee to fail a vote in the Senate, 42-58
• Bork’s critics regarded him as being both too conservative and too closely associated with former president Richard Nixon
• Bork had played a role in the Watergate affair when, at the orders of President Nixon, he had fired the independent prosecutor, Archibald Cox, who was investigating the Watergate cover-up

Question 70

Brett Kavanaugh

Answer 70

• replaced justice Anthony Kennedy
• he is more conservative, resulting in the court becoming more conservative
• sworn in 2018
• all republicans voted for him, and one democrat
• during the appointment process, he was accused of sexual assault and as a result, the senate judiciary committee hearings are dogged by protests
• the nomination could not proceed until interviews were committed