EOTT - US Supreme Court and Civil Rights Key Points Flashcards
The nature and role of the SCOTUS
The Court and the US Constitution
1) ‘Judicial review’ is often cited as one of the principles of the Constitution. While this is commonly accepted, it was not until Marbury v. Madison (1803) that the SCOTUS actually took this power, meaning its role as constitutionally stated is in fact very limited.
Judicial review is ability of the SCOTUS to declare Acts of Congress, and acts or actions of the presidency, unconstitutional and therefore null and void
2) What does Article III state?
- ‘Judicial power’ is vested in the SCOTUS
- Justices have life tenure in their job in times of ‘good behaviour’ and their salary is protected.
- The SCOTUS is an appellate court (i.e. deals with appeals from lower courts), except for limited circumstances in which it has ‘original jurisdiction
- The SCOTUS can review cases which come from the Constitution, this allows the Court to be the only body which interprets the Constitution.
The nature and role of the SCOTUS
The independent nature of the SCOTUS
The independence of the SCOTUS is guaranteed by the following:
1) Constitutional ways
- Life tenure in times of ‘good behaviour’ - there is no retirement age
- A high salary which ‘shall not be diminished’ during their time in office
- Justices are appointed, not elected -> they are nominated by the president and ratified by the Senate, which helps prevent a single party or branch filling the Court with their allies
- Separation of powers means the SCOTUS has its own power outlined within the Constitution, which ensures its sovereignty. Even if a President disagrees with a ruling, there is little he can do.
2) Other ways
- The appointment process is rigorous and includes input for judicial experts such as the American Bar Association (ABA).
- The Court’s power of judicial review is widely accepted, and it is rare that a ruling is ignored by federal or state government.
The nature and role of the SCOTUS
The judicial review process
1) As the SCOTUS is reviewing the constitutionality of an issue, its decisions are effectively sovereign as it is interpreting the sovereign document. The only way to overturn a SCOTUS ruling is by constitutional amendment
2) Judicial review was no explicit in the Constitution. It came about through:
- Marbury v Madison (1803) - a case regarding whether the new president had to honour the nomination of a judge by the previous president as it had not yet been ratified. In finding that the president did not have to honour this, the Court established its power of judicial review at a federal level
- Fletcher v Peck (1810) - a case regarding land sales in which the SCOTUS struck down a state law for the first time, establishing its power of judicial review at state level.
3) Today, the SCOTUS gets sent around 8,000 cases for review each year, of which it will hear between 80 and 100.
The appointment process for the SCOTUS
The Process
5 stages
Stage 1 - Vacancy
- Occurs through death, retirement or impeachment of another justice
- E.G. death = Antonin Scalia (2016) & Ginsburg (2020) and retirement = Stevens in 2010
Stage 2 - Search an nomination
- Looking for a justice who is well qualified and suits a president’s wishes
- E.G. Sandra Day O’Connor came from state courts and was appointment in part because she was a woman; Sotomayor because she was a minority
Stage 3 - ABA rating
- The ABA will review and rate a candidate ‘not qualified’, ‘qualified’ or ‘well qualified’
- E.G. The ABA is made up of judicial experts but has no constitutional standing. It is expected that justices are ‘well qualified’ but Thomas only achieved ‘qualified’ and was still nominated.
Stage 4 - Senate Judiciary Committee and hearings and vote
- A committee of 20 senators who spend days interviewing candidates as to their suitability, after which a recommendatory vote is taken.
- E.G. Sotomayor underwent 4 days of Senate hearings, passing 13-6; Kagan spent 3 days and also passed 13-6. In the SJC, Barrett only secured the support of Republicans (it was a party vote 12-10)
Stage 5 - Full Senate Vote
- As the constitution requires the ‘advise and consent’ of Senate, the full Senate votes on a nominee.
- E.G. Kagan was sworn in 63-37 with only one Democrat voting against her and five Republicans voting for her. ACB was confirmed 52-48, with no Democratic Senators voting for her. ACB secured confirmation very quickly within a month of her nomination and only a week before the 2020 US presidential election.
The appointment process for the SCOTUS
Weaknesses of the process
1) The process has become party political
- Before 2005, it was common for justices to receive near unanimous approval (with the exception of Clarence Thomas), which those voting against numbering in single figures. In recent year, the appointments of Alito, Sotomayor, Kagan and Kavanaugh have all been notable for the party-line voting that occurred both in the committee and on the floor of the Senate. Kavanaugh vote was 50-48 in the Senate. The refusal to even schedule hearings for Merrick Garland had little to do with his judicial ability, but rather party politics
2) The President has politicised the nomination - he looks for a candidate who is likely to suit his own ideology of liberal or conservative. While he cannot guarantee the way a justice will vote, this undermines the principle of independence of the Court. Sotomayor and Kagan were both picked for being liberal, women and, in Sotomayor’s case, from a minority group.
3) The Senate Judiciary Committee hearings have become a show
- Rather than using this stage to investigate the suitability of a candidate, this televised process is used as a way for senators to grandstand. In Sotomayor’s hearing, she spoke for just 34% of the time, which seems rather small given that it was her that the committee was investigating.
4) The role of the media undermines the process.
- While the process is supposed to be about appointing well=qualified candidates, the media focus on scandal, such as with Thomas and Kavanaugh (claims of sexual misconduct)
5) Expectations of replacing vacancies for like-for-like candidates, undermine the ability to pick the best candidate for the job.
The appointment process for the SCOTUS
Strengths of the process
- The lengthy and rigorous process ensures that candidates are legally qualified and capable of holding this position.
- The role of elected officials in the process lends legitimacy to the branch with is otherwise unelected and therefore unaccountable and yet has considerable power.
The appointment process for the SCOTUS
Factors influencing the president’s choice of nominee
1) Ideology
- While judges do not categorise themselves as ‘liberal’ or ‘conservative’, it is possible to see whether a justice has ‘liberal’ or ‘conservative’ leanings by looking at their past rulings.
- A president will want a justice who has a similar ideology to himself.
- A liberal justice is one who interprets the Constitution more broadly in order to give the people more freedom and bring about social change.
- A conservative justice has a strong belief in ‘stare decisis’ with a narrower view of the constitution, more likely to believe in a literal interpretation of the wording and believing in a generally smaller government.
2) Personal characteristics
- A president may wish to balance the Court in terms of gender or ethnicity
- Obama nominated Sonia Sotomayor, the first hispanic to the Court.
3) Experience
- Candidates are expected to have relevant experience.
- Most will come from Circuit Courts but Elena Kagan came from the Justice Department
4) The outgoing justice
- Within reason, it is expected that a president should appoint a justice with a similar ideology to that of the outgoing justice
- It hasn’t always happened (Alito for Day O’Connor in 2006) but it is a consideration
The appointment process for the SCOTUS
Who are the current SCOTUS Justices?
John G. Roberts (Chief Justice)
- Conservative
- Appointed by G.W. Bush in 2005
- Age in 2023 = 67
Clarence Thomas
- Conservative
- Appointed by H.W. Bush in 1991
- Age in 2023 = 74
Samuel Alito
- Conservative
- Appointed by G.W. Bush in 2006
- Age in 2023 = 72
Sonia Sotomayor
- Liberal
- Appointed by Obama in 2009
- Age in 2023 = 68
Elena Kagan
- Liberal
- Appointed by Obama in 2010
- Age in 2023 = 62
Neil Gorsuch
- Conservative
- Appointed by Trump in 2017
- Age in 2023 = 55
Brett Kavanaugh
- Conservative
- Appointed by Trump in 2018
- Age in 2023 = 57
Amy Comy Barrett
- Conservative
- Appointed by Trump in 2020
- Age in 2023 = 50
Ketanji Brown Jackson
- Liberal
- Appointed by Biden in 2022
- Age in 2023 = 53
The appointment process for the SCOTUS
The current composition and ideological balance of the Supreme Court
1) The current court has a 6-3 Conservative bias, but, in around two-thirds of SCOTUS cases, the ruling are not 6-3, suggesting factors other than ideology are considered.
2) A swing justice is a justice who falls ideologically in the centre of the nine current justices. The current one is the Chief himself, John G. Roberts Jnr.
3) Even in 5-4 cases, it is not always the ‘swing’ justice who decides the case. Perhaps most famously, John Roberts sided with the ‘liberals’ in finding for Obamacare in the 2010 case of NFIB v. Sebelius. In such cases, other factors may be important. The sole job of the SCOTUS is to judge a case based on the Constitution. However, as the Constitution is vague, there are two schools of thought on its application - strict constructionist and loose constructionist. In the case of NFIB v Sibelius, while it was unusual perhaps for a conservative to side with Obamacare, his reasoning was that it was not, according to the Constitution, a tax, and therefore was constitutional.
5) Strict/loose constructionist
- ‘Loose constructionism’ favours a broad interpretation of the Constitution.
- ‘Strict Constructionism’ favours looking solely at the written text of the law / Constitution.
The SCOTUS and public policy
The impact of the SCOTUS on public policy
Public policy is policy that affects the whole of the US population. SCOTUS rulings affect all aspects of US public policy.
These rulings have been implemented despite the SCOTUS having no method to force implementation. Texas, for example, could have ignored the 2016 ruling regarding abortion, but to do so would be to go against the Constitution as ruled by the SCOTUS, so despite disagreeing, it adhered to the ruling.
The SCOTUS and public policy
The impact of the SCOTUS on public policy
EXAMPLES
Area = Free Speech
Case = Snyder v Phelps (2011)
Impact = Affirmed the extent of ‘free speech’ as protected by the 1st Amendment
Area = Healthcare
Case = King v Burwell (2015)
Impact = Upheld Obamacare again, allowing for its continuance
Area = Election Finance
Case = Citizens United v FEC (2010)
Impact = Struck down some campaign finance limits as not compatible with the 1st Amendment
Area = Abortion
Case = Dodds v Jackson (2022)
Impact = Constitution does not confirm right of a woman to have an abortion
Area = Gun Control
Case = New York State Rifle and Pistol Association v Bruen (2022)
Impact = In the first major 2nd Amendment ruling for more than a decade, the SCOTUS declared that law-abiding Americans had the right to handguns outside the house for self-defence.
Area = Affirmative Action
Case = Fisher v University of Texas (2013 and 2016)
Impact = Allowed for the use of racially-conscious admissions programme to the university.
Area = Voting Rights
Case = Allen v Milligan (2023)
Impact = Black voters in Alabama won a major victory in the SCOTUS in June. The highest court ruled that Republican lawmakers violated the Voting Rights Act when they redrew the state’s congressional map after the 2020 census and failed to create a second Black district.
The ruling was sweet - in recent years, most voting rights cases at the SCOTUS have not gone well for advocates. This summer, in fact, is the 10th anniversary of the Court’s infamous decision in Shelby County v Holder, which gutted an important provision of the Voting Rights Act that subjected states with a history of discrimination to extra scrutiny when adopting new redistricting plans or changing their election laws. With that track record, most observers were preparing for the worst as a decision in the Alabama case drew near.
Instead, Chief Justice John Robert’s 5-4 opinion not only affirmed the lower court’s decision against Alabama but did so with vigorous, strongly confirming the Court’s earlier precedents in the area.
The SCOTUS and public policy
Political significance debate: the role of judicial activism and judicial restraint
Judicial activism and restraint are ways in which we can describe the action of the Supreme Court. An activist justice will be more willing to hear cases and ensure that the outcome is based on the good of society as he or she sees it, whereas a restrained justice will believe that a judgement should be made on the constitution or by looking to the elected, accountable branches of government (they also have a great respect for previous court decisions or precedent).
It is possible for a justice of either ideology to be ‘active’ or ‘restrained’ – the Roberts Court, for example, could be characterised as ‘conservative activist’, with rulings such as Citizens United overturning previous court rulings and establishing a conservative precedent.
CRITICISMS OF JUDICIAL ACTIVISM
* The Supreme Court is unelected and therefore unaccountable.
* It goes against the theory of separation of powers.
* It can overrule the important principle of stare decisis i.e. judges should uphold precedents and maintain former adjudications, i.e. favour the status quo. This is the opposite of the ‘Living Constitution’ approach.
* There are limited checks on the Supreme Court to balance this power.
* It undermines the Court’s neutrality and independence.
CRITICISMS OF JUDICIAL RESTRAINT
* Deference by the Supreme Court to the elected branches can lead to breaches of the Constitution going unchecked.
* Congress and the president often avoid the most controversial topics so Supreme Court needs to step in.
* Without interpretation, the Constitution could be outdated and become irrelevant.
* Rights apply to all, not just the majority, yet the elected branches will focus on the latter.
- The protection of civil liberties and rights in the USA today
Constitutional rights in the USA are protected by the Constitution, by the Bill of Rights, by subsequent constitutional amendments and by rulings of the Supreme Court.
- The protection of civil liberties and rights in the USA today
Effectiveness?
c) The effectiveness of the protection of rights by the Supreme Court is always debatable. For example, while Snyder v Phelps upheld the right to free speech of the Westboro Baptist Court, it arguably diminished the right to privacy of the Phelps family. Equally, that the Supreme Court has ruled does not always mean that states or even the federal government will always adhere to this ruling. In the Hamdi v Rumsfled ruling of 2005, the federal government only conceded limited changes to Guantanamo Bay following its loss in this case.
- Race and rights in contemporary US politics
Racial rights campaigns
The passage of the Civil War amendments from 1865 to 1870 supposedly guaranteed the rights of the newly freed slaves. In practice, Jim Crow laws ensured that for continuing decades they remained disenfranchised and discriminated against. Even the Supreme Court allowed for segregation in 1896 provided such segregation was ‘equal’ – in practice, this was rarely the case.
The civil rights movement through the 1950s and 1960s, spearheaded by people like Martin Luther King Jnr and Malcolm X, took radically differing approaches to winning equality. Ultimately, the passage of the 1964 Civil Rights Act outlawing discrimination based on race, colour, religion or sex, as well as the 1954 Supreme Court ruling of Brown v Topeka reversing the ‘separate but equal’ ruling, should have ensured equality.
