4.4 The protection of civil liberties and rights in the US today.

Question 1

the controversy of abortion rights

Dobbs v. Jackson Women’s Health Organisation

what did it concern? what was leaked?

Answer 1

• concerned hte constitutionality of a Mississippi law that banned abortion after 15 weeks of pregnancy
• the courts decision was leaked: 6-3 in favour of Mississippi, but also 5-4 stating the court did not believe abortion was constitutionally protected.

Question 2

the controversy of abortion rights

June 2022 what was the decision?

this was 3 months after the leak

Answer 2

• 6 conservative justices - Alito, Roberts, Thomas, Coney Barrett, Gorsuch, and Kavanaugh, voted in favour of mississippi
• all of these except Roberts voted against the constitutionality of abortion, returning the decision to the states

Question 3

the controversy of abortion rights

trigger laws? what were they?

Answer 3

• many US states had laws which meant if Roe v. Wade was ever overturned, abortion bans would immediately come into effect in those states
• December 2022 abortions were almost entirely banned in 13 states and legal in 15 with relatively few limits. the remaining states have varying restrictions

Question 4

the controversy of abortion rights

outside justice Coney Barretts house: activism?

Answer 4

• activists dressed in Handmaid’s Tale costumes to protest.
• The passage led to legislation to increase security for justices and their families

Question 5

the controversy of abortion rights

what did this ruling demonstrate? which act did it lead to?

justices, rights in the court

Answer 5

• unreliable justices: roberts voted not to overturn roe despite being a conservative justice
• it also suggested other rights in the court could be reviewed
• led to Biden passing the Respect for Marriage Act 2022 which protected same-sex marriage federally

Question 6

the effectiveness of rights protection

what is vital to liberal democracy?

Answer 6

protection of rights and accountability

Question 7

the effectiveness of rights protection

debates over how well rights are protected in the US

4 main points

Answer 7

1. when rights of one group may be protected, this may be deterimnetal to another
2. debate over how much power the court really has to protect rights
3. the court has no power to enforce its rulings
4. judicial action is bound by the constitution

Question 8

the effectiveness of rights protection

1. when rights of one group are protected, this may be detrimental to another: Obergefell v. Hodges 2015

Answer 8

rights of religous people were arguably infringed… Kim Davis refused to issue marriage licenses to same-sex couples. She as briefly jailed for this by a district court in Kentucky. Prior to this, same-sex marriage had been illegal.

Question 9

the effectiveness of rights protection

(above point) but how does it apply to Burwell v Hobby Lobby 2014

Answer 9

• the religous rights of employers were placed above the rights of women

Question 10

the effectiveness of rights protection

how much power does the court really even have: what % of cases does the court hear every year? 2018 court declined…?

Answer 10

• 1% of cases that are put to it are heard
• 2018: court declined to hear an appeal from a florist who refused to make an arrangement for a same-sex couple, referring it back to the lower court
• the court has left some people unrpotected

Question 11

the effectiveness of rights protection

the court has no power to enforce its rulings: who does it rely on? Eg. Guantanamo Bay detainees cases? which act did congress pass to get around a ruling?

Answer 11

• court relies on congress or the states to enforce its rulings
• Eg. Guantanamo Bay detainee cases (2004-2008) each time were ruled in favour of the detainees, yet the cases kept coming back.
• Congress passed the Military Commissions Act 2006 to get around a ruling, which had to be struck down by the court

Question 12

the effectiveness of rights protection

Judicial action is bound by the constitution: Synder v. Phelps

Answer 12

• it may be difficult to protect rights as its rulings must be rooted in the words of the constitution.
• Eg. Snyder v Phelps, the actions of Westboro Baptist Church were protected by the 1st amendmnet, despite being offensive.

Question 13

the effectiveness of rights protection

the Supreme Court IS effective: why?

Answer 13

• its unlikely a ruling of the court would be ignored or unenforced given the importance of the constitution
• vagueness means court can protect rights that aren’t explicitly identified (abortion, same-sex marriage)

Question 14

living constitution and originalism

living constitution vs originalism definitions

Answer 14

• living constitution: the constitution is living and evolves. These justices believe in interpreting the text more widely in the context of modern society
• originalism: the meaning of the constitution is fixed at the time of writing. It does not evolve and interpreting it this way undermines its principles

Question 15

living constitution and originalism

however, both groups agree the constitution should evolve in some way. How do both groups believe this?

Answer 15

1. living constitutionalists: evolution can be done through the judiciary
2. originalists: evolution can be done through politically accountable elected branches

Question 16

the judicial philosophy of Kentanji Brown Jackson

During Kentanji Brown Jacksons senate judiciary commitee hearings, what did she say?

republicans reaction?

Answer 16

‘i believe the constitution is frixed in its meaning. I believe its appropriate to look at the original itnent, original public meaning of the words’

many republicans were not happy with her answers and unwillingness to identify with a specific judicial philosophy

Question 17

how should the constitution be interpreted?

as a ‘living constitution’ arguments

Answer 17

1. the constitution will quickly become outdated if its not interpreted in the light of modern developments
2. elected and accountable branches favour the will of the majority. Therefore, interpretation of the constitution can ensure minority rights are also protected.
3. founding fathers could not have predicted the world that exists today
4. the amendmnet process is too difficult to allow the development of the constitution through the government
5. the principles of the constitution can be upheld despite the wording of the document

Question 18

how should the constitution be interpreted?

in an originalist manner

Answer 18

1. interpreting the constitution politicises the supreme court
2. changes required can be left to the elected branches rather than misinterpreting the constitution by 9 unelected judges
3. it isnt possible for people to know what hte law is until a judge has decided it through a living constutition, which is confusing for citizens
4. amendment process has been used successfully
5. principles of the constitution are not as significant as the words and text when determining meaning

Question 19

judicial activism

what does judical activism mean?

Answer 19

• ruling in a way that gives a judicial solution to a problem, rather than letting congress or the president solve it

Question 20

judicial activism

liberal activism example

2015

Answer 20

Obergefell v Hodges overturned laws in 13 states in which same-sex marriage was illegal
- it also struck down the Defence of Marriage Act (congressional law)
- the court therefore overruled the state and federally elected officials to protect LGBTQ+ rights

Question 21

judicial activism

conservative activism example

campaign finance

Answer 21

• citizens united v FEC overturned part of BICRA in alloiwng money to be seen as a form of free speech
• this fits with conservative ideals to embrace meritocracy and a reduction in government intervention
• it directly contradicts (also) a case from 7 years earlier which ruled the opposite

Question 22

judical restraint

what does judicial restraint mean?

Answer 22

• a justice sees their role in the court as far more limited
• wehre possible, they should allow congresional and presidential policy to stand
• this is known as stare decisis or ‘let the decision stand’

Question 23

judical restraint

liberal restraint example

2016

Answer 23

Whole woman’s health v Hellerstedt which defended roe v. wade

Question 24

judical restraint

conservative judicial restraint

G v G, lethal injection2015

Answer 24

• glossip v. gross 2015: allows the continued use of lethal injection
• suggests prisoners could only challenge this method of execution by providing an alternative
• the court argued it was the responsibility of the prisoner to demonstrate the execution method caused severe pain, not the responsibility of the state.

Question 25

# judicial restraint and judicial activism criticsims of judicial activism

Answer 25

- supreme court is unelected and unaccountable for the decisions it makes - allowing the court to strike down acts of congress and the executives actions with only limited checks breaches seperations of power - allowign the court to strike down state laws ignores the constitutional principle of federalism and the differences that exists acorss teh USA - the court can overrule its own decisions, even when the constitution has not changed, suggesting the court is acting politically rather than neutrally - judicial review interprets the constitution, meaning there are few effective checks on teh courts power as constitutional amendments are so difficult to pass

Question 26

# judicial restraint and judicial activism criticisms of judical restraint

Answer 26

- if the court defers to elected branches, this might allow laws and policies that directly contravene the constitution to stand - given the frequent election cycle, elected branches often shy awya from dealing with controversial policy issus. The court is the oly branch that can deal with controversial issues or rirghts without fear of public reprisals - the codifed constitution is outdated if the court will not interpret it - the power of judicial review could be implied. The court therefore shuld act to limit the government as the founding fathers intended - the constitution is meaningless without interpretation

Question 27

# checks and balances can the number of justices be compromised?

Answer 27

th epresident can only appoint, and this is dependent on a vacancy occuring - congress could alter the number of justices, or pass an amendment to overturn a decision, but these are unlikely. This hasn't changed since **1869**

Question 28

# checks and balances - tension Obama and DAPA | tension between congress and the court

Answer 28

- Obama expressed anger at the court numerosu times after the rulings concernng Campaign finance and DAPA

Question 29

# checks and balances - tension **2018**: what did it strike down?

Answer 29

- parts of the voting rights act **1965** - allowed for the possibility of congress passing legislation to recognise the changing political circumstances, though this is incredibly unlikely.

Question 30

# checks and balances - tension **2020** Senator Schumer and the abortion case in the supreme court

Answer 30

- the court heard an abortion case. Senator Schumer held a pro-choice rally outside the court saying, *'i want to tell you Gorsuch. I want to tell you Kavanaugh. You have released the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions'*

Question 31

# checks and balances - tension **2021**: what did Biden accuse the court of?

Answer 31

*'an unprecedented assault on womens constitutional rights'* following its unwillingness to strike down a texas abortion law

Question 32

# checks and balances - tension However, how has the court extended the powers of these branches? **Eg...** ## Footnote 2011

Answer 32

*NFIB v. Sebelius* - the court defvined the individaul mandate as within congress' power to levy tax

Question 33

# the supreme court and guantanamo bay established by who? why has it been controversial? tension between the executive and the court?

Answer 33

- established by Bush **2002** - to hold suspected terrorists - been controversial because suspects have been subject to indefinite detention, and even torture - the supreme court has ruled against the president and in favour of the detainees, but congress or the president has found a way aaround these anyway

Question 34

# the supreme court and guantanamo bay *Rasul v. Bush* **2004** | ruling?

Answer 34

- foreign detainees in Guantanamo can petition the federal government for habeas corpus, reviewing the legality of their detention

Question 35

# the supreme court and guantanamo bay *Rasul v Bush* **2004** | impact

Answer 35

- british men involved in this case were transported to the UK before the decision was handed down

Question 36

# the supreme court and guantanamo bay *Hamdi v Rumsfeld* **2004** | ruling?

Answer 36

- detainees held in Gauntanamo Bay have a right to due process

Question 37

# the supreme court and guantanamo bay *Hamdi v Rumsfeld* **2006** ## Footnote impact?

Answer 37

- hamdi released without charge following the ruling - he was then deported to Saudi Arabia on the condition of giving up his US citizenship

Question 38

# the supreme court and guantanamo bay *Hamden v Rumsfeld* **2006** | ruling?

Answer 38

- using military commissions to try detainees in Guantanamo Bay was unconstitutional - as were congressional acts or presidential actions authorising them

Question 39

# the supreme court and guantanamo bay *Hamden v Rumsfeld* **2006** | impact?

Answer 39

- detainees could still be tried but must be tried by a court - led to the passing of the **Military Commissions Act 2006** to authorise the use of military comissions in Guantanamo Bay and overcome the Supreme Court ruling

Question 40

# the supreme court and guantanamo bay *Boumediene v Bush* **2009** | ruling?

Answer 40

- detainees in Guantanamo Bay have the right to try their cases in US courts - the **Military Commissions Act 2006** was unconstitutional

Question 41

# the supreme court and guantanamo bay *Boumediene v Bush* **2008** | impact

Answer 41

struck down a congressional act but also asserted the courts right to rule over presidential actions in this policy area

Question 42

# imperial judiciary difference between political vs imperial

Answer 42

- political concerned about its role - imperial concerned about its power

Question 43

# imperial judiciary **Eg.** president appointing justices: political or imperial

Answer 43

- **political**: president appointing justices has no impact on the power of the court but is hugely important for debates on the politicisation of the court

Question 44

# the role of the supreme court how should the supreme court perform?

Answer 44

should be neutrally judicial and independent. - should act as an arbiter of the constitution - but: the courts decisions have political consequences, so the decisions seem to be politically motivated.

Question 45

# the supreme court - judicial or political supreme court judicial?

Answer 45

1. can only take cases with a **constitutional basis** and make decisions based on the wording of the constitution. Political opinions are irrelevant 2. members of the court have **legal** expertise 3. the court **cannot enforce** their decisions. The decisions must therefore be seen as legitimate to be enforced. 4. lots of decisions are **9-0**. This suggests the justices can't be basing their decisions on personal opinion, as they are divided into 'liberals' or 'justices.' Lots of cases where justices have seemingly voted against their labelled ideology. 5. court **adheres to legal principles** such as stare decisis, ultra vires

Question 46

# the supreme court - judicial or political supreme court as political

Answer 46

1. **impact of rulings are political**: Eg. *Bush v Gore* **2000** effectively decided who will be the next president 2. **appointment process** is political and increasingly so (**Eg.** since **2006**, appointment votes have been more obviously divided on party lines) 3. **justices are labelled** as *'liberal'* or *'conservative'* this suggests political rather than judicial motivations. They are all interpreting the same evidence yet reach different conclusions 4. court **accepts amicus curiae** briefs, where pressure groups try to influence the outcome. This politicses the role of the court. 5. court **shys away from controversial cases** such as gun control and gerrymandering, suggesting its significant in public opinion