ETVT SCOTUS can be described as a political body (30) Flashcards
Appointments process has become partisan and politicised
Increasingly partisan vote, Ketanji Brown Jackson 2022 53-47, 3 Republicans voted yes. Brett Kavanaugh 50-48 and Kagan who received ‘well qualified’ by the ABA received only 5 Republican votes.
In March 2016, Obama nominated Merrick Garland, Chief Judge of the US Court of Appeals for the DC Circuit, who has been praised by many Senate Republicans in the past. However, the Senate has insisted that the winner of the 2016 presidential election make the nomination, giving voters the opportunity to influence the appointment.
Senate judiciary committee is increasingly politicized, Thomas was not questioned on his qualification but instead his conservative ideology and allegations of sexual harassment.
Vast sums of money were spent by groups opposing and supporting the appointment of Brett Kavanaugh in 2018, a democrat group called demand justice spend over 1 million on tv ads opposing Kavanaugh.
2016 Trump said he would only pick candidates from the Federalist society, a conservative society for law advocating a originalist approach.
Appointments process is just good scrutiny
The appointments process is not political.
Checks on executive power, ABA rating and the Senate judiciary committee, presidents must pick judicial experts, for example Nixon backed away from Mildred Lillie in 1971 when she was rated ‘not qualified’.
Detailed scrutiny from the committee asses judicial suitability, Harriet Miers withdrew in 2005 when her answers were described as ‘insulting’.
Presidents cant predict how nominees will act, Ronald Reagan appointed Kennedy in 1988 to the Supreme Court, sided with Obergefell v Hodges in 2015.
Legislating from the bench has become more common
Consistent creation of new rights and influencing policy, legislating from the bench.
Dobbs v Jackson 2022
Obergefell v Hodges 2015
Citizens United v FEC 2010
Make decisions when it suits them, Scalia argued in US v Windsor 2013, removing DOMA was wrong as they shouldn’t remove democratically elected legislation, Shelby County v Holder 2013 he supported striking a key provision in the Voting rights act 1964.
Justice Scalia argued that in US v Lopez 1994 there was a too broad and modern reading of the commerce clause, to argue congress could ban the possession of handguns near schools, however in Gonzales v Raich 2004 he used a much loser interpretation of the commerce clause to argue congress could ban the use of marijuana.
Judges do not legislate from the bench
The constitution is a intentionally vague document and is open for interpretation from judges, therefore there will be inevitable new rights and interpretations. It is one of the key roles of the Supreme court to interpret the constitution, and part of this would be
Obergefell v Hodges 2015, 14th amendment protects same sex couples, Kennedy argued that the founding fathers did not know or understand society as it was today and therefore intrusted justices to protect the right of ‘liberty’ how it would mean in that time.
This is not a politicide decision and just a interpretation of the constitution.
Texas v Johnson 1989, 1st amendment protected the burning of a flag, Kennedy wrote ‘The hard fact is sometimes we have to make decisions we do not like’. Justices are limited by president and sometimes they are forced to make a ruling even if they disagree with it, meaning that it is only interpreting the constitution and not legislating from the bench
Increasing divided nature of the court
Clear divide over Republicans and democrats, Thomas, Alito, Kavanaugh, Amy Coney Barret, Gorsuch, Roberts/Kagan, Sotomayer, Ketanji Brown Jackson.
The Roberts court has been the most divisive in history, around 22% of cases were decided 5-4. The divisions are predictable and usually split down ideological lines.
Citizens United v FEC 2010 and DC v Heller 2008, 5-4 decision, Kennedy, Roberts, Alito, Scalia and Thomas all voted that 1st amendment protects free speech, all appointed by republican presidents and the 2nd amendment protects the right to bear arms. Traditionally conservative views are only voted on by republican appointed justices. Democrat – Republican split shows politization.
If justices are actually able to decide cases as neutral umpires we might expect more ‘unpredictable’ rulings, Justice Kennedy in 2014 decided 13 of the 19 cases.
The court is not divided between political wings - they are neutral
From 2005-2016 the court decided around 59% of cases unanimously, 9% by 8-1 and 15% by 7-2. Most of the time justices are able to not make politicised decisions.
Neutral umpires, reaching consensus.
During his nomination hearing, Chief Justice John Roberts told the Senators, “Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them.”
Once the Supreme Court has made a decision, a justice from the majority must write an explanation demonstrating how it relates to the Constitution and previous decisions made by the Supreme Court. This requirement ensures that decisions are based on law and not on political or personal feelings.
