6 The Judiciary Flashcards
1
Q
basic principles of judges
A
- well-paid
- hard to remove
- appointed or elected
- no retirement
- apolitical in theory
2
Q
well-paid
A
- judges are held in high esteem and are a prestigious but lucrative position
- high pay makes them less likely to be corrupted
3
Q
hard to remove
A
- 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
4
Q
appointed or elected
A
federal judges are appointed but states have diff rules (some are elected, some are appointed)
5
Q
no retirement
A
federal judges don’t have to retire, which often incentivizes them to wait until their party wins the presidency and senate
6
Q
apolitical in theory
A
judiciary has grown more partisan over time
7
Q
legislative review
A
the legislative has the final say over court issues (like the UK)
8
Q
judicial review/supremacy
A
- 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
9
Q
Supreme Court Justices
A
- 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)
10
Q
Justice Scalia’s death (2016)
A
- 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
11
Q
Justice Bader-Ginsburg’s death (2020)
A
- 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
12
Q
controversies on the Supreme Court
A
- 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
13
Q
“A switch in time saves nine”
A
- 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
14
Q
2 main camps in constitutional interpretations
A
- originalism
- living document
15
Q
originalism
A
- 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
16
Q
living document/tree model
A
- 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
17
Q
Chesterton’s fence
A
- 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)
