Evaluate the view that the Roberts Court is an activist court? Flashcards
LoA
it is an activist court
para 1 theme
campaign finance
para 2 theme
voter rights
para 3 theme
same sex marriage
para 1 - campaign finance
- 2 decisions actively weakened campaign finance legislation. For example, Citizens United v FEC 2010 and McCutchen v FEC 2-14 both led to corporations and individuals free to donate freely. These reverse McConnell v FEC - campaign finance restriction and McCain-Feingold legislation Bipartisan Campaign Finance Bill 2010.
They are activist in nature, significantly opening up campaign finance. Conservative win, arguably in favour of corporations ,which will support Republicans more so
para 1 - however
However, it has generally avoided controversial cases. Largely agreed in gun control cases precedence and has avoided controversy by supporting ACA at last stage. Roberts in his reasoning said it was too controversial to strike down the presidents central and mandated policy, and that it should be left to the president and congress
para 1 - rebuttal
- The now 6-3 conservative court seems willing to act on controversial cases given the likelihood of a conservative court.
The Supreme Court has struck down central mandated Presidential policies before, striking down the dreamers act in Texas v Us 2016
para 2 - voter rights
Key decisions made to change the application of long established and hard own voting registration act 1965. E.g. Shelby County v Holder 2013 overturned the Bill’s formula to determine whether certain states (usually those previous segregation states) ensuring that they sought federal permission for any changes to ensure no discrimination was reapplied. Removing the formula removed this protector rights. Roberts reasoned USA was very different to the 1930s and 60s. This now opens the door to any state to apply discrimination against any group whether for well-intended or malicious reasons. Freedom v protection. Conservative policies
para 2 - however
- Although a Conservative court the decisions are much more varied with liberal and conservative 5-4s - e.g. Kennedy or Roberts or Gorsuch not sticking to ideological alignment (SEE SHOWBIE).
Kennedy support for both liberal and conservative and since Roberts, more as expected. Over a 17 year court there has been significant balance cycles of decisions
para 2 - rebuttal
Given the strength of the conservative bloc now, it seems more and more likely that decisions will follow a conservative trend and will be activist in a conservative way
para 3 - same sex marriage
Significant freedom won overturning DOMA and legalised same sex marriage across the USA. Had grown state by state in 2015, leading to Obergefell v Hodges. Confirmed decision of Lawrence v Texas 2003 protecting same sex relations. This 2015 decision was felt by conservatives as a decision beyond the meaning of the constitution = originalism. Justice Kennedy’s reasoning criticised by the late Scalia for having little constitutional merit, see it as activism gone too far. Legislation or Judge made law - too powerful
para 3 - however
- It is the least activist court - conservative, restrained. See Kennedy swing vote, in year prior to his retirement in 2018 he had three liberal leaning years and two conservative. So more balanced than headlines suggest?
Roberts court more generally confirmed precedence or only incremental change e.g. abortion. But that might be about to change bit time, seems very likely. Funs, agreeing with two cases regarding gun control - DV v Heller 2008 and McDonald v Chicago 2010.
para 3 - rebuttal
This has changed in 2022. The shift to the right has seen an expansion in Conservative activism, shown by the leaked decision which will supposedly overturn the precedence set in Roe v Wade (always egregiously wrong)
