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
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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’
Explain the counter arguement that judicial activism threatens liberty
Cases like Roe and Obergefell see an unelected body make a huge change to policy. It horrified Christian groups who felt that their right to religious freedom was being infringed upon. This interpretation makes the court a player in the legislative process rather than a referee. They say that gay marriage and abortion should have come about via amendment rather than SC decisions. The policy making judiciary judicial activism leads to undermines the separation of powers, a key part of the constitution. This leads to the SC usurping the powers of congress, becoming an unaccountable quasi legislative body that represents an imperial judiciary
Explain the position of originalism
This holds that the constitution should be interpreted in terms of what is written and what the FF originally intended. It thinks that the constitution is fixed at its time of writing. They believe that the FF created a constitution intended for permanence rather than whimsical change. This interpretation confines justices to adjudication. They do not necessarily believe that society should remain static and that the constitution should not be changed, but they believe that these changes should be made by the politically accountable elected branches, rather than an unelected SC. They want to base their decisions on what the FF wanted at the time of ratification. This lends itself to neutral rulings uninhibited by bias
Where did backlash against the Warren Court come from?
The political right
Give some examples of originalist appointments
Antonin Scalia in 1986 and Clarence Thomas in 1991
Which current justices are most sympathetic to this interpretation?
Clarence Thomas, John Roberts, Samuel Alito, ACB, Neil Gorsuch and Brett Kavanaugh
What political ideology is this approach associated with?
Conservativism
How was District of Columbia v Heller an example of originalism?
Scalia wrote the originalist judgement, demonstrating deep contextual knowledge of what the term ‘well regulated militia’ would have meant in the 18th century. Scalia explains that contemporary understanding of the term would have been that everyone would have been expected to rally to defend their community. Therefore everyone has the right to bear arms in the present day
How was Rucho v Common Clause (2019) an example?
In these cases concerning gerrymandering, the court concluded that partisan gerrymandering claims present political questions beyond the reach of the courts
What type of people have been most critical of originalism?
Liberals and advocates of the living constitution
Explain the counter arguement that the FF would not have agreed?
Opponents say it is flawed because it treats the constitution as sacred. The FF did not think of themselves as infallible or their constitution untouchable. Thomas Jefferson explicitly said that he wanted future generations to update the constitution and so it unlikely that the FF would have wanted a centuries old document to be held sacrosanct
Explain the counter arguement that the ambiguity of the constitution was supposed to allow for interpretation
The FF were aware that the meaning of many of the phrases in the constitution would change over time as society would not remain static. Ideas like cruel and unusual punishment are subjective
Explain the counter arguement that the constitution does not deny the existence of rights it does not explicitly mention?
Originalists insist that only the rights set out in the constitution should be observed, but the 9th amendment directly counters this: ‘The enumeration of certain rights shall not be construed to deny or disparage others
What did Senator Edward Kennedy say in 1987 in criticism of originalism?
That if it had prevailed throughout US history we would live in a society where women were forced into back alley abortions, blacks had to sit at segregated lunch tables and the doors of the federal courts would be shut to millions for whom the judiciary is the only protection for the individual rights that are at the heart of the constitution
Explain the counter arguement that originalism does not always follow the constitution
The SC heard Bush v Gore in 2000. Despite the constitution saying that voting is a states right, Scalia and Thomas both voted against Florida’s right to recount and handed the presidency to GWB. Professor Mark Brandon said this was a low point in SC history, installing a president in spite of constitutional procedures for resolving the electoral conflict
What is the most significant check the SC has on the other branches?
JR
How is JR a limited check?
Because it relies on the other branches to enforce its decisions
What did Andrew Jackson say in response to a decision he disliked while president to illustrate this?
‘John Marshall (the chief justice) has made the decision, let him enforce it’
Why was this attitude not representative of the standard approach?
In the main, presidents and state governors have upheld SC decisions even if they disagreed with them
What has been the most notable exception to this convention?
When Eisenhower had to send federal troops to Arkansas after the state had refused to desegregate following the Brown ruling
What are the two main ways congress can check the SC
- Impeachment
- Amendments
How many SC decisions have been overturned by amendment?
2
How was Chisholm v Georgia (1793) an example of this?
This granted the federal courts the power to hear disputes between private citizens and states. The judgement was overriden by the 11th amendment (1798), which established that the federal courts cannot hear cases and rule against states if it is sued by a citizen. This reaffirmed soveriegn immunity for the states unless they or the federal government gave permission
How was Pollock v Farmer’s Loan and Trust Company an example of this?
This struck off the income tax that had been imposed by the Wilson Gorman Tariff Act (1894) as being unconstitutional. This judgement was overruled by the 16th amendment (1913), which allowed congress to levy income taxes without apportioning them among the states
What does the difficulty of passing constitutional amendments mean for their viability as an effective check on the judiciary?
They are too impractical to be an effective check
Describe the power imbalance between congress and the SC in terms of their control over the constitution
It is straightforward for the SC to change it through JR, congress finds it almost impossible to pass constitutional amendments to override SC decisions it finds disagreeable
Why has this caused tension?
Because the elected legislature is effectively powerless in repealing the actions of an unelected body
How did FDR want to change the SC?
With his Judicial Procedures Reform Bill in 1937, as he wanted to pack the court with more liberal justices in order to get more favourable rulings for New Deal legislation that the SC had previously ruled unconstitutional
What is this tactic often called?
Court packing
How was this attempt to pack the court received?
It was unpopular with the public and congress rejected it
Why has this idea become back into favour?
Because some Ds considered doing this after gaining unified government following the appointment of ACB shifting the court in a conservative direction
What has Biden set up to consider this possibility?
A bipartisan commission
What is the main way presidents can influence the judiciary?
They can nominate justices whose judicial philosophy reflects their own, thus having an impact on the federal courts for years to come
How is Trump v Hawaii (2018) an example of how this can be useful?
Because after having his travel ban blocked by the two lower federal courts, the support of the two Trump justices in the SC allowed him to win 5-4 there
Why do judicial appointments have much more scope to disappoint the president that elected them than executive appointments?
Because they cannot be sacked
What has the SC had a large role in promoting in US life and politics?
Equality
What is inscripted upon the statue of liberty in support of immigration?
Give me your tired, your poor, your masses yearing to breathe free, the wretched refuse of your teeming shore. Send them to me. I lift the lamp beside my golden door
In what decade did immigration rise most sharply?
The 1990s
How many immigrants arrived between 2000-7?
10.3 million
What proportion of them were deemed illegal by the authorities?
1/2
Why have immigration figures stunted slightly since this period?
Due to poorer economic indicators in the US
What type of immigration became most important in the 2010s?
Immigration across the southern border with Mexico
Give a statistic to display why this was such a concern?
By 2015, it was estimated that 93% of illegal immigrants apprehended came across this border
Describe the progress made along the southern border before Trump
In 2006, Congress authorised the building of a 700 mile long fence along part of the border. By 2010, 646 miles of it had been erected along with a virtual fence made up of sensors and other control systems
How did Trump bring these tensions to a head in his 2016 campaign?
He promised to build a wall along the whole border and make Mexico pay for it
Why had the SC had such a dominant role in immigration?
Because neither congress nor the president has been able to have a decisive role here
Give some examples of SC decisions with positive implications for immigrant communities over the 2019-20 term
- In DHS v Regents of the University of California, which concerned the Trump administration ending DACA, it was ruled that the programme could not be rescinded
What did Trump tweet in response to this decision?
He said that this horrible and politically charged judgements were shotgun blasts to the face of people proud to call themselves R or conservative
Give some examples of SC decisions during the 2019-20 that had negative impacts for immigrants
- In Kansas v Garcia, the court gave states new authority to use state laws to prosecute immigrants for supplying false paperwork, such as fake social security numbers, when applying for jobs. This gave additional powers to states and the federal government in the area of immigration enforcement
