Judicary Flashcards
What does the constitution say about the judicial branch?
- Very little
- Power to be vested in one Supreme Court that would set up afterwards
- One Chief Justice but powers are undefined
- Provisions about appointment, teen length, office conduct and salaries
What role does the Supreme Court play?
- An appellate role - hearing only cases that have been through the inferior federal courts or state supreme courts
- Along with lower federal courts deals with cases ‘arising under the constitution’
What two cases defined the powers of the Supreme Court?
- Marbury v. Madison in 1803
* Fletcher v. Peck in 1810
What did Marbury v. Madison rule?
• The Supreme Court could strike down:
- a federal law
- an action by the president or another member of the executives actions
If deemed unconstitutional
• This gave the court the power of judicial review
What did Fletcher v. Peck rule?
Judicial review was to be extended to state laws and state governments
What are the 3 types of appeal Courts in the USA?
- US Court of appeals (regular crimes)
- US Court of appeals for the federal circuit
- US Court of military appeals
How do the Supreme Court remain independent form the other branches?
- Life tenure - the judges don’t face the threat of being fired by the President if they don’t act in his interest
- Salary - compensation clause states that the judges pay cannot lower whilst in office
- Separation of power - no one with the executive or legislative works with the judges
What powers does the Supreme Court have?
• Judicial review
Name the checks the executive have over the judiciary
- Appoint federal judges
* Pardon federal offenders
Name the checks the legislative has over the judiciary
- Create lower federal courts
- Impeach and remove judges through supermajority vote of judges have acted illegally
- Propose amendments to overrule judicial decisions
- Approves appointments of federal judges
What are the 4 judicial philosophies used by the justices?
- Strict constructionism
- Originalism
- Loose constructionism
- Living constitution
How would a justice who followed strict constructionism deal with cases?
- Read as literal and strict
* Constitution read just as the founding fathers intended it to be read
How would a justice who followed originalism deal with cases?
They would face with the founding fathers in mind and be strict but not disregard issues if there is not a clear instruction on it in the constitution unlike a strict constructionist
How would a justice who followed loose constructionism deal with cases?
• Reading between the line of the constitution and looks at each issue with its context
How would a justice who followed the idea of a living constitution deal with cases?
• The believe the constitution is interpreted with the modern day being the interest and not use old interpretations of it
How are justices appointed to the Supreme Court?
- A vacancy occurs due to the retirement, impeachment or death of a justice
- The president nominates a new justice from a short list who are heavily scrutinised
- The Senate Judiciary Committee holds hearings, an interview and recommendations on the suitability of the nominee. The American Bar Association issues a report in their degree of qualification
- The Senate then votes and they must clear the vote by over 50%
Why are appointment to the so important?
- Occur infrequently
- Last a long time and can decide the make up of the Court for decades
- Only nine members so one person holds a lot of power
- Ideological balance can be tilted
- The courts decisions affect society
Give 3 examples of judges with controversies airing around their appointments to the Supreme Court
1987 - Robert Bork
2005 - Harriet Miers
2016 - Merrick Garland
What was the controversy around Robert Bork’s appointment to the Supreme Court?
- Nominated by Reagan
- Failed to get appointed with 42-58 vote
- Reagan’s other appointments has gone through easily, Kennedy was appointed to Supreme Court instead
What was the controversy around Harriet Miers appointment to the Supreme Court?
- Nomination of George W Bush
- Heavily scrutinised by Democrats for lack of experience and she withdrew
- Backfired on Democrats with Alito who was more conservative being appointed
Why was Antonio Scalia’s death so significant?
The Court was swung 5-4 conservative majority but with a democratic president in power he was likely to appoint a liberal judge to swing it back the other way
Why was Merrick Garland the ‘least controversial’ choice available to Obama?
Garland didn’t have a history of voting consistently in a liberal way which meant Garland was more likely to pass through a majority republican senate
What is the Thurmond rule?
- More a convention
* State a President cannot have a Supreme Court nomination pass through the senate in their final year in office
How did the Republicans resist Garland’s nomination?
- The Thurmond Rule
* They held the majority in senate
What are the strengths of the appointment process for a Supreme Court justice?
- Ensure judges are independent
- Ensure judges are capable
- Ensures judges are suitable
What are the weaknesses of the appointment process for a Supreme Court justice?
- Nominations are not solely based on judicial ability
- Ratification is politicised
- Process is ineffective and nominees not properly scrutinised
How many cases are sent to the Supreme Court and how many are considered?
7,000 by only 100 considered
LANDMARK CASE Plessy v. Ferguson • Date • Issue • Vote split
- 1896
- Upheld segregation, emphasis on separate but equal
- 7 -1
LANDMARK CASE Brown v. Board of Education • Date • Issue • Vote split
- 1954
- Overruled Plessy v. Ferguson proving it wasn’t equal, ruled through equal protect ion clause of the 14th
- 9-0
LANDMARK CASE Mapp v. Ohio • Date • Issue • Vote split
- 1961
- Ruled evidence obtained in violation of the 4th cannot be used in court
- 6 - 3
LANDMARK CASE Engel v. Vitale • Date • Issue • Vote split
- 1962
- Ruled school prayers unconstitutional in violation of the 1st
- 6 - 1
LANDMARK CASE Gideon v. Wainwright • Date • Issue • Vote split
- 1963
- Ruled that the right to council was fundamental under the 6th
- 9-0
LANDMARK CASE Griswold v. Connecticut • Date • Issue • Vote split
- 1965
- Protected right to privacy after Connecticut law prohibited the use of contraception but judges said it violated privacy
- 7 - 2
LANDMARK CASE Miranda v. Arizona • Date • Issue • Vote split
- 1966
- Ruled that police had to read accused their rights due to the 5th
- 5 - 4
LANDMARK CASE Roe v. Wade • Date • Issue • Vote split
- 1973
- Ruled abortion legal in first trimester under the 14th (privacy) after Texas law made it illegal to assist a woman to get an abortion
- 7 - 2
LANDMARK CASE United States v. Nixon • Date • Issue • Vote split
- 1974
- Ruled that nobody is above the law after Nixon withheld evidence during the watergate scandal
- 9 - 0
LANDMARK CASE Planned Parenthood of Pennsylvania v. Casey • Date • Issue • Vote split
- 1992
- Court upheld the right to an abortion but ruled 4/5 restrictions placed on women in Pennsylvania constitutional
- 5 - 4
LANDMARK CASE Bush v. Gore • Date • Issue • Vote split
- 2000
- Ruled that recount of Florida votes (hanging chads) after the deadline of 12th December was unconstitutional as it violates the 14th
- 7 - 2
LANDMARK CASE Gonzales v. Cahart • Date • Issue • Vote split
- 2007
- Upheld Partial - Birth Abortion Ban passed in 2003
- 5 - 4
LANDMARK CASE National Federation of Independent Business v. Sebelius • Date • Issue • Vote split
- 2012
- Upheld Affordable Care Act as it fell under Congress’ power to collect tax
- 9 - 0
LANDMARK CASE Obergefell v. Hodges • Date • Issue • Vote split
- 2015
- Court ruled equal protection clause of the constitution guaranteed the right to marry for same sex couples
- 5 - 4
What is judicial activism?
- When justices are seen to be acting in a way to reform society
- Acting in a way that appears to be equal to the other branches of government
What is judicial restraint?
- When justices are more inclined to accept the laws passed by elected official
- Adopt stare decisis - not voting on things votes on before
Who are the 4 liberal judges that the currently on the Supreme Court
- Ruth Bader Ginsburg, Clinton 1993
- Stephen Breyer, Clinton 1994
- Sonja Sotomayer, Obama 2009
- Elena Kagan, Obama 2009
Who are the 5 conservative judges that the currently on the Supreme Court
- Clarence Thomas, Bush Sr. 1991
- John Roberts, Bush Jr 2005
- Samuel Alito, Bush Jr 2005
- Neil Gorsuch, Trump 2017
- Brett Kavanaugh, Trump 2018
List 10 important cases ruled under the Robert’s Courto
- Massachusetts v. Environmental Protection Agency (2007)
- District of Colombia v. Heller (2008)
- Ashcroft v. Iqbal (2009)
- Citizens United v. Federal Election Commission (2010)
- National Federation of Independence v. Sebelius (2012)
- Arizona v. United States (2012)
- Shelby County v. Holder (2013)
- Burrell v. Hobby Lobby (2014)
- Obergefell v. Hodges (2015)
- Whole Woman’s Health v. Hellerstedt (2016)
Give evidence that the Supreme Court is becoming more conservative
- Judges (5 - 4 majority)
- Freedom of speech cases (e.g United States v. Alvarez ‘12, Synder v Phelps ‘11 - WBC picketing soldier funerals)
- Gun laws (District of Columbia V Heller ‘08 - citizens allowed to buy guns regardless of ‘armed militia’)
- Scrapping Affirmative action (Schultz v Coalition to Defend Affirmative action ‘14)
- Returning state power (Little Rock v. Gonzalez ‘05 - states not sued for how the enforce restraining orders, Gonzalez v. Raich ‘05 - congresses laws prohibit weed take precedence over state laws incoming medicinal usage)
- Women’s reproductive rights (Gonzalez v. Carhart)
- Voting Laws, retuning federalism ( eg Shelby County v. Holder - overruled section 4(b) of the Voting Right Act of 1965, overturning Brown…Education)
Give evidence that the Supreme Court is remaining the same in ideology or a more liberal court
- Rulings to do with death penalty ( Brown v. Plata ‘11 - ruling overcrowding in Cali prisons is c&u punishment, Panetti v. Quaterman ‘07 - Ruled execution cannot be a sentence for schizophrenics)
- Gay marriage (Obergefell v. Hodges)
- Scalia’s death - most rigid originality leading to a new, untested judge
- Kennedy a swing vote
- International Refugee Assistance Project vs Trump, Hawaii vs Trump both blocked until the September proclamation from Trump
What is the difference between constitutional and civil liberties?
- Constitutional liberties - rights ensured under a constitution
- Civil liberties - freedoms from arbitrary government interference specifically by denial of government power
- In the US civil liberties are guaranteed by the bill of rights
What rights are provided under the First Amendment?
- Separates the state and religion
* Ensures the freedom of speech, press, association and to petition the government
What rights are provided under the Second Amendment?
• The right to bear arms within an well regulated militia
What rights are provided under the Fourth Amendment?
Warrants are required to search property with probable cause
What rights are provided under the for Fifth Amendment?
The right not to be imprisoned without being found guilty (or in the process) and to not self incriminate
What rights are provided under the Sixth Amendment?
The right to a fair trial
What rights are provided under the Eighth amendment?
Protection from cruel and unusual punishment or excessive bail
What rights are provided under the Fifteenth Amendment?
Ensures that all men could no matter what race they were
When was the Fifteenth passed?
1865 after the civil war
What are the aims of the National Association for the Advancement of Colour Peoples?
- Ensure political,educational, social and economic equality
- Eliminate race based discrimination
- Seek enactment and enforcement of federal, state and local laws securing civil liberties
- To educate people of their constitutional rights
Why was the recent Shelby Counter v Holder significant?
- Overturned section 5 of the Voting Rights Act
- Section 5 allowed for the federal government to scrutinise state voting laws naming 15 states in specific. 9/15 have reintroduced restrictions
- Minorities are traditionally victims of these laws
How have racial rights groups campaigned for voting rights?
- Direct action - demonstrations in 50/60s, 2014 peaceful sit in at GOP party leaders office ins North Carolina to protect photo ID laws
- Legal methods - asserting 14/15th Amendment. Nevada litigated against in 2016 by National Council of La Rosa for not adhering to federal laws
- Voting registration drives - supported by groups such as the NAACP and Native American groups involved with nativevote.org
What methods are used to restrict access for voting?
- Grandfather clause (pre 1960s) - you or your grandparents had to be able to vote before the civil war to make you exempt from literacy tests
- Literacy tests - made deliberately hard
- Felony voting restrictions
- Photo ID laws
What types of segregation are there?
- De jure - by law
* De facto - due to socio-economic or even bureaucratic reasons. It happens by itself
Which sections of society were affirmative action used in?
- Higher education
- Federal jobs
- Employment
- Political party short lists
Cite 2 cases to do with the 1st Amendment (religion) under the Roberts Court. Provide
• Name and year
• Ruling
• Vote split
TBD
Cite 2 cases to do with the 1st Amendment (freedom of speech, expression and association) under the Roberts Court. Provide
• Name and year
• Ruling
• Vote split
• Synder v. Phelps 2011
Ruled the Westboro Baptist Church could picket gay soldiers funerals
8 - 1 (Alito)
• United States V Alvarez 2012
Ruled Stolen Valour Act of 2005 unconstitutional
6-3 (Roberts and Kennedy side with liberals)
Cite 2 cases to do with the 2nd Amendment under the Roberts Court. Provide
• Name and year
• Ruling
• Vote split
• District of Colombia V Heller 2008
Overturned the ban of handguns and the requirement that larger weapons to be dismantled in the home. First time Court interprets 2nd ad individual right to bear arms
5 - 4 (Liberal dissent)
• McDonald v. Chicago 2010
A ban in Chicago on handguns passed in the 80s ruled unconstitutional
5 - 4 (Liberal dissent)
Cite 2 cases to do with the 5th Amendment under the Roberts Court. Provide
• Name and year
• Ruling
• Vote split
• Boumediene v. Bush 2008
Non US detainees in Guantanamo entitled to a court hearing (reaffirming previous decision)
5-4 (Conservative dissent), other gov. Branches trying to ignore 2 other court rulings)
• Peña- Roderiguez v Colorado 2017
Ruled baring evidence of racial bias from a witness or evidence obtained under racial bias to be disbarred a constitutional act
5-3 (Conservative dissent)
Cite 2 cases to do with the 8th Amendment under the Roberts Court. Provide
• Name and year
• Ruling
• Vote split
Brown v. Plata 2011
• Ruled overcrowding in Californian prisons ‘cruel and unusual punishment’ and some prisoners were released
5 - 4 (Conservative dissent)
• Glossip v. Gross 2015
Ruled the use of midazolam in lethal injections constitutional after a botched execution took 40 hours
5 - 4 (Liberal dissent)
Cite 2 cases to do with the 14th Amendment (rights of racial minorities) under the Roberts Court. Provide
• Name and year
• Ruling
• Vote split
• Shelby County v Holder 2013
Ruled that section 5 of the Voting Rights Act that prohibited states requiring certain criteria/process for voter registration was unconstitutional
5 - 4 (Liberal dissent)
• Fisher V Texas 2016
Permitted consideration of race for applying undergraduates
4-3 (Conservative dissent and Kagan did not participate)
Cite 2 cases to do with the 14th Amendment (abortion) under the Roberts Court. Provide
• Name and year
• Ruling
• Vote split
• Gonzalez v. Carhart 2007
Upheld ban on late term abortions under Partial Birth Abortion Act
5-4 (Liberal dissent)
• Whole Women’s Health v Hellerstedt 2016
Ruled Texas HB2 Law posse subdue brides on women seeking abortions and thus unconstitutional
