6 The Judiciary

Question 1

basic principles of judges

Answer 1

• well-paid
• hard to remove
• appointed or elected
• no retirement
• apolitical in theory

Question 2

well-paid

Answer 2

• judges are held in high esteem and are a prestigious but lucrative position
• high pay makes them less likely to be corrupted

Question 3

hard to remove

Answer 3

• judges shouldn’t have to focus on popular opinion and should focus on applying the law (which would be difficult if they were easy to remove)
• however, a bad judge is just as difficult to remove as a good one

Question 4

appointed or elected

Answer 4

federal judges are appointed but states have diff rules (some are elected, some are appointed)

Question 5

no retirement

Answer 5

federal judges don’t have to retire, which often incentivizes them to wait until their party wins the presidency and senate

Question 6

apolitical in theory

Answer 6

judiciary has grown more partisan over time

Question 7

legislative review

Answer 7

the legislative has the final say over court issues (like the UK)

Question 8

judicial review/supremacy

Answer 8

• used by almost all federal systems since the components of federalism are equal, so there needs to be a neutral third party to arbitrate
• the US SC imposed this itself

Question 9

Supreme Court Justices

Answer 9

• nominated and appointed by the president
• must be confirmed by the Senate
• filibuster used to apply to all federal judicial nominees, but this was changed to apply only to SC justices (Democrats) and later stripped entirely (Republicans)

Question 10

Justice Scalia’s death (2016)

Answer 10

• the Republican-controlled Senate refused to hold a confirmation hearing for Obama’s bipartisan nominee, as Senate majority leader Mitch McConnell knew many Republicans would vote in favour
• he was banking on Trump winning the election to pack the courts with Republican judges

Question 11

Justice Bader-Ginsburg’s death (2020)

Answer 11

• McConnell fast-tracked Republican judge Amy Barrett into the SC before Trump could lose the election
• resulted in 6 Republican justices and 3 Democratic justices on the bench

Question 12

controversies on the Supreme Court

Answer 12

• as a general rule, SC rulings are approved by the majority of Americans
• where they’re forced to rule on areas with no consensus (like the abortion rulings), the SC is subject to controversy
• in a moderate court, a contentious ruling will always be limited

Question 13

“A switch in time saves nine”

Answer 13

• when FDR proposed his New Deal, he controlled Congress but the SC kept ruling against his policies
• there was pressure from the progressives to pack the courts, using age as the main argument
• FDR proposed that he’d appoint a younger judge for every judge above 70, which would have introduced 6 new justices
• coincidentally, before he could implement this, a judge started ruling in his favour, and he started winning cases 5-4

Question 14

2 main camps in constitutional interpretations

Answer 14

• originalism
• living document

Question 15

originalism

Answer 15

• argues that, to interpret the constitution, judges need to consider the original intent of the framers (i.e, what the Founding Fathers wanted)
• the Fathers wanted to limit the size/power of the president/gov’t, so proponents of small gov’ts follow this approach
  the Fathers were also Christian, so advocates of non-secularity also complement this model
• this is why conservatives tend to be originalists

Question 16

living document/tree model

Answer 16

• argues that the constitution was designed to grow and evolve, so judges should interpret it based on new societal developments and values
• progressives want to change society, so they tend to follow this model
• conservatives will justify their laws based on the original intent of the constitution, while liberals do so based on their contextual interpretations

Question 17

Chesterton’s fence

Answer 17

• a thought experiment to explain the difference between liberals and conservatives
• liberals would argue that a fence in the middle of nowhere can be removed since there doesn’t appear to be any purpose (faster change)
• conservatives would argue that to decide if the fence should be removed, its purpose and how effectively it’s serving the purpose must be examined first (slow change)