Interpretations and debates around the SC and civil rights Flashcards
Describe the impact that JR allows the SC to have on the constitution
The court is able to effectively amend the constitution, not by formally changing the words, but interpretatively, by changing the meaning of those words. This is one of the reasons why it is unnecessary to keep making formal amendments to the constitution
Make the case that the power of JR makes the SC a political institution
The SC makes decisions in policy areas that are highly contentious and about which the Rs and Ds fundamentally disagree - AA, the death penalty, abortion, school prayers and guntrol, to give 5 examples. Any institutions which make decisions in these kinds of areas is bound to be seen as a political institution and will therefore be either praised or vilified by the different political aisles
Make the case that the SC is a political institution
- Justices are appointed by the president, a politician
- Appointments are confirmed by senators, politicians who vote along party lines for the most part
- The court makes decisions on issues that feature in elections, like abortion, immigration and gun control, that the two main parties disagree over
- Some of its decisions have a quasi legislative effect. This has led to many describing the SC as the third house of the legislature
Make the case that the SC is not a political institution
- Its members are judges, not politicians
- The court is independent and therefore not subject to political pressure, due to the fact that there are structural measures in place to reinforce independence, such as security of salary and tenure
- Many justices shift position during their time on the court, and have gone on to disappoint the president and party that backed them
- Justices do not involve themselves in party politics, elections, campaigning or endorsing candidates
- It makes decisions based upon legal and constitutional arguement rather than political ideology
How do the differences between how rights issues are settled in the UK and the US illustrate how the SC is a quasi legislative body?
In the UK, matters like gun control, abortion and the death penalty are settled in parliament, while in the US they are for the most part settled by the SC
In what kind of cases are the quasi legislative powers of the SC most evident?
In decisions authored by loose constructionist judges - those who read things into the constitution and therefore in the eyes of their critics, legislate from the bench
Give an example of a case which demonstrate how the SC is a quasi legislative body
Obergefell v Hodges (2015)
Make the case that the SC has too much power
- The court gave itself the power of JR in Marbury v Madison (1803)
- It has declared more acts of congress unconstitutional as the decades have passed ]
- It has made decisions that are out of line with the majority of public opinion
- It is an unelected and therefore unaccountable body
- It has abused its power to bring about significant policy change on areas such as abortion and same sex marriage
Argue against the idea that the SC has too much power
It is checked by congress, as congress can initiate constitutional amendments to override court decisions
- Congress has the power of impeachment over SC justices
- The court has no power to initiate cases and must wait for them to arrive from the lower courts
- It is dependent upon the rule of law and the other branches to enforce its decisions
- Public opinion acts as a restraining force on the power of the court
- It is checked by the words of the constitution where they are precise enough to not be open to the interpretation of the courts
-
Why is protecting and guaranteeing constitutional freedoms not the sole responsibility of the SC?
Because all three branches of government have a role to play here
Why can the court be seen as having the most important role here compared to the other branches?
Because its power of JR gives it an especially important role in protecting rights and liberties
Why is this especially large power of the SC in protecting rights well placed?
Because it can interpret what the words of the constitution mean for a modern age
It has allowed the court to extend and protect the rights of women and racial minorities as our understanding of these rights has evolved over time
It has allowed the SC to lead where congress and the president have been unable or unwilling to do so
Why would it be wrong to suggest that the SC has always carried out this role effectively?
Because they kept black children in segregated schools for nearly a century after the civil rights
How does the debate around whether the SC has effectively protected civil rights and liberties depend upon subjective interpretation?
While many women will have seen the court as having eroded their constitutional right to an abortion, others will have seen Roe v Wade (1973) as a failure to protect the rights of unborn children. On person’s equality is another person’s discrimination
Why is the interpretation that judges have of the constitution integral to SC decisions?
Because the constitution is integral to any judgement made by an SC justice
What does the debate between originalism and the living constitution stem from?
The justices have different views on the intentions of the FF, and these differences lead to differing understandings of the case they judge and what the role of the judiciary should be in a democracy
Make the case for the living constitution interpretation
The preamble of the constitution an the things it promises are important here. While articulating important sentiments, it has never lived up to the things it promises. The history of the US has shown how the government has failed to live up to the promises made by the constitution, with numerous groups being excluded from political power and influence for long periods of time and therefore unable to assert their basic rights. Elected politicians, with the support of the majority, resisted the extension of these rights, so for exponents of this viewpoint, only judicial activism through the courts can make the constitution meaningful. In this view, judges will make no apology for legislating from the bench if in their view the elected branches of government are failing to live up to their duty of being faithful to the values and provisions of the constitution. This is a legitimate opinion to have, as the FF did have concerns about both politicians and a tyranny of the majority. Supporters of judicial activism argue that without it the promises made by the constitution would be meaningless for millions. With amendments nearly impossible now due to the polarised nature of contemporary politics, judicial activism is seen as being the only way of upholding the principles set out in the preamble of the constitution
It allows principles of the constitution to be applied to a contemporary setting, overturning discriminatory legislation and setting up new legislation in its place. The FF could not have envisaged the modern world and would therefore have wanted their words and ideas to be interpreted within a modern context
Which current justices are most sympathetic to this interpretation?
- Stephen Breyer
- Sonya Sotomayor
- Elena Kegan
Give some examples of classic judgements in keeping with this interpretation of the constitution
- Brown v Board of Education of Topeka (1954)
- Miranda v Arizona (1966)
- Roe v Wade (1973)
How has the SC overcome its historic aversion to intervene in foreign affairs and domestic security in the 21st century?
They adopted an aggresively interventionist stance, challenging the war on terror
How was Rasul v Bush (2004) an example of this?
The court ruled that GB detainees were entitled to constitutional protections
How was Hamdan v Rumsfeld (2006) and example of this?
The court ruled that detainees could not be subject to military tribunals without the specific authorisation of congress
How was Lawrence v Texas (2003) an example of the SC protecting homosexuals?
It ruled that their constitutional rights could not be infringed upon
How was Obergefell v Hodges (2015) an example of this?
It gave them the right to marry
What clause of the 14th amendment did both of these cases make use of?
The equal protection clause
What type of people have been most critical of the living constitution interpretation?
Conservative justices and advocates of originalism
Explain the counter arguement that it ignores the purpose of having a constitution
The constitution provides a clear framework for the branches of government and the people. By constantly changing what it means on a whim, this clarity is distorted
Explain the counter arguement that living constitution advocates are politically motivated
The key purpose of the judiciary is to make judgements on objective grounds. The constitution provides guidance for these judgements. Advocates of the living constitution are judicial activists who wish to perfect the constitution who apply their own preferences in their interpretation of the law rather than applying the law of the constitution. Here, we can see the court ignoring the principle of stare decisis
How was Obergefell v Hodges an example of a living constitution interpretation?
It came to the decision that same sex marriage was a fundamental right by interpreting the equal protection clause in a modern context
Explain Chief Justice Roberts’ originalist response to this when writing the minority opinion
He said that whether or not same sex marriage was a good idea is of no concern, as judges have the power to say what the law is, not what it should be. The FF authorised the courts to exercise ‘neither force nor will but merely judgement’
