FINAL!!! Flashcards

1
Q

Shadow Docket (Emergency Docket)

A

refers to decisions made by the U.S. Supreme Court without the usual full briefing, oral arguments, or written opinions that accompany major cases.

-These decisions are usually in the form of orders issued by a single justice or by the Supreme Court as a whole, and they are independent of the Court’s merits docket
-The cases are resolved by unsigned procedural orders issues without full briefing, oral arguments, or lengthy written opinions

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2
Q

Normative ARGUMENTS

A

arguments from reasons to a course of action

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3
Q

Empirical ARGUMENTS

A

based on direct observation or experimentation.

-Provide evidence to confirm or disconfirm scientific theories or justify beliefs in specific propositions

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4
Q

Attitudinal model

A

is a framework that holds that personal policy preferences are the strongest influence on how a judge will rule on the merits of a case, limited by the facts of the controversy.

-Sincere policy preferences of judges influence their behavior

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5
Q

Types of cases

A

-Issues
-Constitutional or Statutory
-Landmark or Progeny

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6
Q

Presidential Behavior

A

Pardon power and limits

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7
Q

Preferential Behavior

A

Refers to the tendency to treat certain individuals or groups more favorably than others, often based on specific characteristics such as social status or personal relationship

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8
Q

Strategic approach

A

refers to decision-making that takes into account the action reactions of other economic agents (informed decisions)

-Involved recognizing the interdependence between one’s behavior and that of others.

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9
Q

Craig v. Boren

A

ruled that statutory or administration sex classification were subject to intermediate scrutiny under the 14th amendment’s equal protection clause

-Cases involved the conditionality of an Oklahoma statute that prohibited the sale of “non intoxicating” 3.2 percent beer to males under the age of 21.
-The Court held that statue made unconditional gender classification and that the statics relied on by the state of Oklahoma were insufficient to show a substantial relationship between the law and the maintenance of traffic safety

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10
Q

Interdependent choices

A

the context of law referring to situations where the choices of one “actor” depends on those of others

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11
Q

Sincere preferences

A

a judges true ideological belief

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12
Q

Strategic preferences

A

the closest point to a judges true ideological belief that they believed that can be accepted by four other judges

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13
Q

Bargaining

A

refers to an agreement between parties that settles what each gives or received in a transaction between them

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14
Q

Merits

A

substance of a legal dispute

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15
Q

Strategic opinion writing

A

involves crafting persuasive arguments to convince the reader a certain position

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16
Q

Formal and Informal–Institutional Context

A

structure and rules that govern an organization or system

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17
Q

Precedent

A

decision made by judges in past cases that subsequent cases must follow

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18
Q

The Rule of Four

A

a practice in the U.S. Supreme Court that permits 4 of the 9 justices to grant a writ of certiorari

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19
Q

Opinion Assignment

A

the process which a justice of the Supreme Court is designated to write the Court’s opinion on a particular case

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20
Q

Justices as policy seekers

A

Epstein and Knight argue that justices are strategic policy seekers than that neutral interpreters of law

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21
Q

Informal norm

A

SCOTUS Justices Should appear Apolitical

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22
Q

Normative ISSUES

A

questions about how the law should be, rather than how it currently is

-examination of prescriptive and evaluative questions about the law

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23
Q

Empirical QUESTIONS

A

focus on observable occurrences within the legal system and are answered through data collection and analysis

-Can be answered through observation, evidence, and data collection

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24
Q

Parties & Amicus

A

Parties: primary participants directly involved in a lawsuit
Plaintiff
Defendant
Intervening parties

Amicus Brief (friend of the court): an individual or organization who is not a party to a legal case, who offers information, expertise, or insight to the court

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25
Q

Polarization

A

increasing division and ideological distance between groups, particularly issues of law, policy, and governance

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26
Q

Majority Opinion

A

rules in favor of the defendant

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27
Q

Dissenting (disagreement) opinion

A

written by one or more judges expressing disagreement with the majority opinion of the court in a legal case

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28
Q

Concurring (agree with someone) opinion

A

written opinion files by a judge which agrees with the majority decision

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29
Q

Ideology (Liberal—Conservative)

A

connection between legal systems and political ideas

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30
Q

Empirical ISSUES

A

study of how laws work in practice

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31
Q

Federalism

A

a system of government in which the same territory is controlled by two levels of government

32
Q

Levels of Government

A

Legislative: make the laws (congress)
Executive: carries out the laws (president, vice president, cabinet)
Judicial: evaluates the laws (supreme court and other courts)

33
Q

What are Oral Arguments?

A

formal arguments made by attorneys to a court, typically appellate court, where they summarize their legal positions and respond to questions from judges or justices

34
Q

How are Oral Arguments Conducted BEFORE THE PANDEMIC?

A

Assigned time on each side
Lawyer start, justices interrupt
Lawyer goes back to argument
NOT televised
Audio for future release

35
Q

How are Oral Arguments Conducted VIRTUALLY

A

Eased time limits
Lawyers starts
Chief gets first question, then by seniority
Less freewheeling, less back and forth
Thomas asks questions

36
Q

How are Interruptions and Gender–Oral Arguments connected?

A

Male justices are more likely to interrupt female justices

-Justices are more likely to interrupt female justices
-Polite phrasing: Female justices start out more “polite”, but decrease

37
Q

What is Forum Shopping?

A

The practice of choosing a court of jurisdiction believed to be most favorable to a party’s case

38
Q

Measuring Legitimacy

A

-SCOTUS Thermometers, Job approval
-Specific and Diffuse Support

39
Q

SCOTUS in Context

A

-Iterative process
-Importance of other branches (SOP)
-Importance of other governments (federalism)
-Importance of other actors (interest groups, public)

40
Q

Aggregate

A

refers to the combination of multiple individual claims, lawsuits, or issues into a single legal action or group

41
Q

Influences of Judicial Behavior

A

-policy goals/ideology
-legal principles
-social background

42
Q

According to the ATTITUDINAL model, what drives judicial decision-making on the merits?

A

Driven by their personal policy preferences and ideological attitudes than by legal principles, precedents, or constraints such as the text of the law or institutional norms. Legal constraints such as precedent, statutory, or constitutional interpretation are secondary

Justices are seen as “policy-makers in robes”, whose rulings reflect their own preferences regarding political and social issues.

Ideology
Personal Values
Freedom in Higher Courts
Policy Implications

43
Q

According to the STRATEGIC approach to judicial decision-making, what drives judicial decision-making?

A

Driven by their policy preferences, but they make decisions strategically by considering the constraints imposed by other actors, institutions, and the broader political and social context.

Assumes justices carefully navigate external factors to achieve their preferred outcomes in a way that is feasible.

-Reaction from other branches of government
-institutional constraints/rules
-dynamics between members of the court
-public opinion

44
Q

According to Epstein & Knight, what are institutions and what role does this play in the strategic approach?

A

Institutions are defined as the formal and informal rules, norms, and structures that shape and constrain the behavior of actors within a particular system.

Institutions include courts, legal doctrines, procedural rules, and broader norms governing judicial behavior.

These institutions set the framework within which judges operate, influencing how they make decision, and how they interact with other justices, branches of government, and society.

45
Q

According to Johnson, Wahlbeck, and Spriggs, what is the role of oral arguments in judicial decision-making?

A

Oral arguments play a key role in judicial decision making, mainly in appellate courts. Oral arguments serve as an important strategic tool for justices as they decide/plan on cases.

-Supplementing briefs,
-Identifying policy implications
-Evaluating credibility
-Testing arguments
-Framing the issues
-Impact on voting choices
-Shaping opinions
-Interaction between justices and influence

46
Q

(1.) What do we mean by understanding Court outputs and what happens after the Supreme Court makes decisions? (2.) What does this tell us about the Supreme Court and American politics?

A

(1.) Refers to analyzing the consequences and implications of judicial decisions, those of the Supreme Court. It involves examining formal rulings and opinions issues by the Court but also how those decisions are interpreted, implemented, and influence our society. The process involves legal changes and long-term consequences of policy shifts in judicial rulings.

(2.) –Reveals about the Supreme Court as a Political Institution. Portrays as an apolitical body tasked with interpreting the Constitution and the law, its decisions have political consequences. Decisions like Roe v. Wade demonstrates how the Court shapes issues central to American politics, including reproductive rights. The Court’s ability to resolve political questions shows its role in mediating disputes that have direct political effects.

–The Court’s reliance on other political actors reflects the interdependence of institutions in the American political system. The executive branch and state governments play a role in implementing Court rulings. Congress can pass legislation to reinforce or modify Court decisions.

–Judicial Decisions are not FINAL in terms of resistance and policy responses

–The Supreme Court’s Legitimacy and Public Opinion

–The Supreme Court as a driver of social and political change

–The Strategic role of the Court in American Politics

47
Q

What effects do Court decision have on society? In your answer, please address public opinion and either abortion or affirmative action.

A

Effects: influencing public opinion, shaping laws, and policies, and initiating social movements.

Effects on Public Opinion:
-Legitimization of Policies
-Polarization
-Dynamic Relationship

Abortion:
-Roe v. Wade: established right to abortion, transforming reproductive rights into a national issue. Legitimized abortion access and expanded healthcare options for women.
-The decision triggered significant political mobilization.

Abortion–Public Opinion
-Leaned toward supporting abortion access under certain circumstances. Support for abortion rights became more polarized over time, with Democrats and Republicans adopting opposing stances as the issue became central to party platforms

Cases: Dobbs v. Jackson’s Women’s Health:
-Dobbs decision overturned Roe, ending federal protection for abortion rights and returning the issue to the states. Had societal effects including restricted access to abortion.

Public Opinion:
Ruling impacted elections, with abortion becoming a key issue and driving turnout among pro-choice voters.

Affirmative Action:
-Students for Fair Admissions v. Harvard (2023)
Effects: the ruling struck down affirmative action in college admissions, making a major shift in educational policy and limiting efforts to address racial disparities in higher education
-Expected to reduce racial diversity at selective institutions, with broader implications for workplace diversity and social mobility.
-Ruling sparked a national conversation about equity, merit, and systemic barriers

Public Opinion:
Widespread support for initiatives that promote diversity and opportunity, highlighting the complexity of public attitudes.

48
Q

What is public opinion?

A

refers to the collective attitudes, beliefs, and preferences of the general public–or specific groups within the public–on issues, policies, institutions, or individuals

–Represents how people think and feel about various topics at a given time and is often measured through surveys, polls, and other research methods.

Key Feature of Public Opinion
–Aggregate Views: Public opinion is an aggregation of individual attitudes and opinions, providing a snapshot of what a population thinks as a whole
–Can shift overtime
–Is rarely unanimous
–Can focus on a wide range of topics from specific policies
–Some opinions are strongly expressed and mobilized, while other remain inactive
–In highly polarized societies, public opinions may be sharply divided
-Guides policy decisions
–Expressed or Inactive

49
Q

What is affirmative action?

A

Refers to a set of policies and practices designed to address historical and systemic inequalities by actively promoting opportunities for underrepresented or marginalized groups in areas such as education, business, or employment. It aims to reduce disparities and fosters diversity by giving consideration to factors like race, ethnicity, gender, or socioeconomic background in decision-making process.

Key Features:
–Seeks to create a level playing field by addressing barriers that have disadvantaged certain groups, such as racial minorities
–Shaped by laws (legal and policy frameworks)
–Merits based-concerns

50
Q

What does the Court play in monitoring presidential and executive power? Make sure to address presidential immunity and pardon powers?

A

By ensuring that the actions of the president and the executive branch comply with the U.S. Constitution. As part oof the system of checks and balances, the Court review and resolves disputes about the limits of executive authority, protecting against overreach while also affirming the president’s constitutional powers in some cases.

Key Roles of the Supreme Court:
–Judicial Review: Court uses this to assess whether executive actions, orders, or policies violate the Constitution or federal law (established in Marbury v. Madison)
–Interpreting the Scope of Executive Power: the Court determines the boundaries of presidential power as outlined in the Constitution
–Resolving Conflict Between Branches: the Court as a judge in disputes between the executive and legislative branches
–Protecting Individual Rights: the Court monitors executive actions that may violate upon civil liberties or individual rights
–Addressing National Security: the president has broad powers in matter of national security and foreign policy, but the Court reviews whether those powers are exercised within constitutional limits.

Limits:
–Case selection: Court can only rule on cases brought before it
–Enforcement Power: lacks direct enforcement power, relying on the executive branch to implement its rulings

Example: United States v. Nixon
–established that executive privilege has limits, especially when withholding evidence obstructs justice

51
Q

What is presidential immunity?

A

refers to the legal doctrine that protects the POTUS from certain legal actions, ensuring that they can perform their official duties without fear of lawsuits or persecution for actions taken within the scope of their office. Protection is rooted in the principle of Separation of Powers and is intended to safeguard the president’s ability to govern effectively without undue interference from the judiciary or people.

Types:
–Absolute (OFFICIAL acts)
–Criminal (UNSETTLED legal question)
–Limited (UNOFFICIAL acts)

Limitations of Presidential Immunity
–Unofficial Acts: does not shield the president from legal accountability for actions unrelated to their official duties
–Impeachment: presidents can be held accountable for misconduct while in office through impeachment, as outlined in the Constitution
–Post-Presidency Accountability: applies only while the individual is in office. After leaving office, they can face civil or criminal liability for actions taken during presidency

Example: Richard Nixon (Watergate Scandal)
– Nixon was protected from criminal prosecution while in office, the threat of impeachment and removal led to his resignation. After resigning, he was pardoned by his successor, Gerald Ford, for any crimes he may have committed

52
Q

What are pardon powers?

A

Refer to the authority granted to the POTUS under Article 2, Section 2 of the U.S. Constitution to grant clemency to individuals convicted of federal crimes.

The powers are intended to serve as a check on the judicial branch, offering relief in cases where the POTUS believes justice, fairness, or mercy warrants intervention.

Intention of Pardon Power:
–Federal Offenses Only: applies exclusively to federal crimes, not state crimes.
–Criminal Cases Only: parson address criminal convictions or charges
–Pre or Post Conviction: POTUS can grant a pardon before a person is charged, during an investigation, or after conviction

Types of Clemency under Pardon Powers:
–Pardon: fully forgive a person for a crime, restoring their rights and preventing further punishment
-Amnesty: broad pardons granted to a group of people, used in political situations

Limits:
–Impeachment Exemption: prohibits the president from using the pardon power to prevent their own impeachment or to pardon someone convicted in an impeachment trial
–State Crimes: POTUS has no authority over state criminal convictions
–Political and Public Accountability: POTUS face public scrutiny and potential political fallout for controversial pardons

Examples: Gerald Ford Pardons Richard Nixon; Donald Trump Pardons

53
Q

How would a proponent (advocate) of the attitudinal model and a proponent (advocate) of the strategic model explain Court decision (including future decision) in the following areas: transgender rights, abortion, and presidential power?

A
  1. Transgender Rights

Attitudinal model:
–Proponents would argue that justices voted based on their ideological preferences:
*Conservative Justices: dissented because their personal beliefs align with more traditional interpretation of civil rights laws, opposing expansion to include transgender protections
* Liberal Justices: voted in favor of transgender rights, reflecting their ideological support for LGBTQ+ equality

Strategic Model:
–Proponents would suggest that justices, especially in a politically sensitive case, might consider broader societal and institutional dynamics

  1. Abortion

Attitudinal model: the justices vote reflect their ideological stances on abortion
–Conservative justices: voted to overturn Roe because of their personal opposition to abortion rights and their broader conservative judicial philosophy
–Liberal justices: dissented because they support abortion rights and view reproductive autonomy as aligned with liberal values of personal liberty and equality

Strategic model:
an advocate would emphasize the broader calculations justices might make to achieve long-term goals
–conservative justices in the majority may have strategically framed their ruling in narrow legal terms to reduce backlash and protect the legitimacy of the Court after a polarizing decision

  1. Presidential Power

Attitudinal model: argue that the decision was influenced by the justices’ ideological views on presidential power
–Sought to protect their reputations by aligning their decision with the growing bipartisan consensus abused POTUS power

Strategic model:
Argue that the justices acted to preserve the legitimacy of the Court and avoid appearing partisan during a politically tense moment

54
Q

Write a thematic literature review using with Epstein & Knight (The Choices Justices Make) as your base for five class sessions worth of material. In other words, make connections among Epstein & Knight’s strategic approach and material from five classes. Make sure to work in at least one issue spotlight?

A

–Strategic Model
–Institutional Constraints
–Branch Relationships
–Case Selections and Strategic Timing
–Strategic Behavior

55
Q

What role do institutions play in the STRATEGIC APPROACH?

A

Institutions play a CENTRAL role by structuring the incentives and constraints that shape judicial behavior. Justices must navigate these institutional frameworks when making decisions to maximize their policy preferences while ensuring legitimacy.

-Institutions CREATE CONSTRAINTS
-Institutions SHAPE INTERACTIONS
-Institutions PROTECT LEGITMACY

56
Q

What role do institutions play in ORAL ARGUMENTS?

A

Influence how justices engage strategically with advocates

-Justices use oral arguments to signal preferences
-Institutional norms of colleagues
-Strategic Framing

57
Q

What role do institutions play in the SHADOW DOCKET?

A

Refers to the Supreme Court’s decisions made outside the merits docket, often through emergency order or decisions without full oral arguments or opinions.

-Rushed procedures and Limited transparency
-Legitimacy and norm constraints
-Strategic use of precedent

58
Q

According to Johnson, Wahlbeck, and Spriggs, what about interruptions & gender during oral arguments?

A

Reveal that gendered dynamics that reflect broader societal biases. findings suggest that FEMALE justices are interrupted more often than their MALE colleagues and this pattern can have implications for the effectiveness of their participation and the dynamics of oral arguments.

Key Findings:
–Frequency of Interruptions: female justices are interrupted more frequently than male justices during oral arguments. This includes interruptions by male justices, advocates (lawyers presenting cases), and sometimes even their FEMALE colleagues.
–This pattern persists regardless of the FEMALE justices’ seniority or experience on the bench

Role of Gender Norms:
Women are often perceived as less authoritative or less entitled to assert their viewpoints. These biases can carry into the courtroom, even at the highest judicial level.

Impact on Oral Argument Dynamics: interruptions can undermine the ability of female justices to fully articulate their questions or positions during oral arguments, affecting how their perspectives shape the discussion and influence decision-making.
*Repeated interruptions may create an environment where FEMALE justices have to work harder to assert their authority compares to their MALE counterparts

Changing Patterns Over Time: suggest FEMALE justices to become more assertive over time in reclaiming their speaking time, challenging interruptions, and asserting authority during oral arguments

59
Q

Separation of Powers

A

Is a foundations principle in governance that divides the responsibilities and powers of government into distinct branches to prevent any ONE BRANCH from becoming too powerful.

Establishes 3 co-equal branches of government
1. Legislative Branch (Congress): pass laws
2. Executive Branch (President and administrative agencies): enforce laws
3. Judicial Branch (Supreme Court and lower federal courts): interpret laws

60
Q

What are Merits?

A

Refers to the essential rights and wrongs of a case or issue, based on the facts evidence, and legal principles, rather than on procedural or technical aspects.

Deciding a case “on merits” means evaluating it based on its substantive content rather than dismissing it due to procedural errors or jurisdictional issues.

Merits:
–Appeals and Review: When a case is appealed, appellate courts often review decisions on procedural issues first. If resolved, the appellate court may consider the merits of the case.

–Decisions “on the merits” focuses on whether the defendant’s
legal and factual arguments hold under scrutiny

Example: procedural grounds

61
Q

Checks and Balances

A

Principle designed to ensure that NO ONE branch of government becomes too powerful. It refers to the system where each branch (legislative, executive, and judicial) has the authority to monitor and limit the powers of the other branches.

This principle is closely tied to the concept of Separation of Powers, but it focuses on the mechanisms that allow branches to “check” one another (judicial branch)

Purpose:
–Prevent Tyranny: ensure that power is distributed and not concentrated in a single branch or individual
–Accountability: encourages cooperation and oversight among branches
–Preserve Liberty: protects individual freedoms by limiting governmental overreach

Example: Brown v. Board
–overriding legislative and executive policies in many states
–Pardon: Nixon being pardoned after the Watergate scandal, disputing potential judicial prosecution

Challenges: gridlock

62
Q

What is Clemency?

A

is an act of mercy granted by a government official, typically a president or governor, to reduce the punishment or consequences of a crime

Forms of Clemency:
–Pardons
–Amnesty

63
Q

Scrutiny Levels

A

Scrutiny Levels: are legal standards courts use to evaluate whether a government actions or law violates constitutional rights, those under the Equal protection Clause of the 14th Amendment.

They determine how closely a court will examine a law or policy to ensure it is justified and does not unfairly discriminate.

64
Q

Legal Realism

A

Theory of law that emphasizes the role of social, political, and economic factors in judicial decision-making

–Influenced judicial philosophy
–Influenced modern legal though

Example: Brown v Board of Education

65
Q

Behavioralism

A

focuses on the empirical and systematic study of political behavior, using qualitative methods to analyze how individuals, group, and institutions act in political context.

Emphasizes observable and measurable behavior rather than abstract ideas or normative theories about how politics should work.

66
Q

Bipartisan

A

refers to cooperation agreement, or support from members of 2 different political parties, particularly in a political system dominated by 2 major parties

67
Q

Apolitical

A

refers to being neutral or not influenced by politics pr political considerations

68
Q

Scrutiny

A

refers to the standard or level of review that courts use to evaluate the constitutionality of a law, policy, or governmental action.

69
Q

The Supreme Court as an electoral issue

A

During presidential elections, because of its power to shape American society and politics through its decisions

70
Q

Oral Argument Format (Prior to COVID-19)

A

Interaction (before pandemic)
Assigned time on each side
Lawyer start, justices interrupt
Lawyer goes back to argument
NOT televised
Audio for future release

Interaction (virtual arguments)
Eased time limits
Lawyers starts
Chief gets first question, then by seniority
Less freewheeling, less back and forth
Thomas asks questions

71
Q

The role of Chief Justice in Interruptions and Interventions in SC

A

–the flow of discussion
–intervening in responses
–managing interruptions due to gender dynamics
–strategic use of interruptions
–maintaining Court’s legitimacy and public perception

72
Q

Influence of Oral Arguments on the Supreme Court

A

–Legal issues
–Shaping the Court’s Views
–Influence on the Court’s Final Decision
–Public Perception and Transparency
–Influence on judicial Strategy
–Limited impact on cases

73
Q

Chief Justice Shaping Trump’s Supreme Court Wins

A

–Strategic decision-making process
–Role in shaping Court’s legacy

74
Q

Strict Scrutiny

A

The highest level of scrutiny applied to laws or policies that involve fundamental rights or suspect classifications

75
Q

Rational Basis Scrutiny

A

The lowest level of scrutiny, applied to most laws that do not involve fundamental rights or suspect classifications

76
Q

Heightened Scrutiny

A

A middle level of scrutiny applies to laws or policies involving suspect classifications, such as gender or illegitimacy