Chapter 4 - 6/7 - Interpretations and debates Flashcards
What does the Supreme Court’s power of judicial review enable it to do?
Interpret the Constitution.
What is the Supreme Court doing when it interprets the Constitution?
It is, in effect, amending the Constitution - this is why there it is unnecessary to keep passing formal amendments.
What does the Supreme Court’s power of judicial review make it?
A political institution - they are making decisions on policy areas which are politically contentious.
What are the reasons why the Supreme Court is a political institution?
- Justices are elected by a politician.
- Appointments are confirmed by politicians.
- They rule on politically contentious issues.
- Their decisions have a legislative effect.
What are the reasons for the Supreme Court not being considered a political institution?
- Its members are judges, not politicians.
- It is independent.
- Judges often disappoint their nominating president.
- It makes decisions based on legal and constitutional argument, not political ideology.
What does judicial review give the Supreme Court?
A quasi-legislative power.
What do critics of activist judges describe them as doing?
‘legislate from the bench’
What are the arguments against the Supreme Court having too much power?
- Congress can amend the Constitution to override Court decisions.
- Congress can impeach Justices.
- The Court cannot initiate cases, it must wait for them to be brought through the lower courts.
- It cannot enforce its decisions.
What is the ‘living constitution’?
The view that the Constitution is continually evolving and needs to be updated by activist judges when Congress or the President fail to move with the times.
Which current Supreme Court Justices take the ‘living’ view of the Constitution?
- Sonia Sotomayor
- Elena Kagan
What is the justification for the ‘living’ view of the Constitution?
The Founding Fathers could not have envisaged the modern world, and with constitutional amendments virtually impossible nowadays it is down to Justices to uphold the principles of the Constitution.
What Supreme Court rulings are examples of the ‘living’ view of the Constitution?
- Brown v Board of Education of Topeka
- Obergefell v Hodges
- Roe v Wade
What are the criticisms of the ‘living constitution’ view?
- It ignores the purpose of having a constitution - by constantly updating at the whim of fashion it negates the clear framework it is supposed to provide.
- Its advocates are politically motivated - the Supreme Court is meant to be neutral and objective.
- It makes the court a player in the legislative process rather than the referee - it is for Congress to make new laws.
What did Alexander Hamilton say about the Supreme Court?
“neither force nor will but merely judgement”.
What is originalism?
The belief that the Constitution should be interpreted according to what is written and what the framers originally intended.
What do originalists believe about changing the Constitution and society?
They do not think society and the Constitution should remain the same always, just that any changes should be made by politically accountable elected branches of government.
What do originalists perceive the meaning of the Constitution as?
Fixed in the time of writing - they will try to understand it as it was understood at the time of writing and make a judgement based on that.
Which Justices are originalists?
- Justice Clarence Thomas
- Justice Amy Coney Barret
Which case was influenced by the originalist view?
Citizens United v Federal Election Commission (2010)
What are the arguments against originalism?
- It is not what the Founding Fathers would have wanted.
- The ambiguity of the Constitution was designed to allow interpretation (‘cruel and unusual’ for example).
- It is not politically neutral.
What actions can the Supreme Court take against Congress and the President?
It can declare Acts and actions as unconstitutional and strike them down.
The executive and the states uphold the rulings of the Supreme Court even when they disagree with them, but what was the one exception?
Little Rock, 1957
How many times has Congress used their check on the Supreme Court and amended the Constitution to override a ruling?
Just twice
When was the last time the Constitution was amended to override a Supreme Court ruling?
1913
Which Amendment overrode a Supreme Court ruling?
Sixteenth Amendment, 1913
What did the Sixteenth Amendment do?
Allowed Congress to levy income taxes without apportioning them among the states.
Which case was the Sixteenth Amendment meant to override the ruling of?
Pollock v Farmer’s Loan and Trust Company
When was the Pollock v Farmers’ Loan and Trust Company case?
1895
Why is Congress’ check on the Supreme Court almost obsolete?
It is incredibly hard to amend the Constitution.
What are the three checks Congress has on the Supreme Court?
- Impeachment
- Amendment
- Changing the number of judges
What check does the president have on the power of the Supreme Court?
They nominate all federal judges - trial, appeal, and Supreme - and can shape the outlook of the court for years to come.
When was there a government shutdown over Trump’s funding of a wall?
December 2018 - January 2019
How long did the government shutdown last over the wall?
35 days - the longest in history.
When was the case of Trump v Hawaii?
2018
What was the case of Trump v Hawaii about?
Trump placed a travel ban on several Muslim countries.
What was the Supreme Court ruling of Trump v Hawaii?
The Court ruled that the president’s power to secure the national borders was constitutional, and upheld the travel bans.
