Judiciary Flashcards
How would a liberal justice typically act?
One who interprets the Constitution to favour liberal values such as protecting rights or advancing socially progressive policy
How would a Conservative justice typically act?
Interprets the Constitution to favour conservative values such as government authority and national security or the right to bear arms
Swing justice
falls ideologically, in the middle of the nine justices. They may change with any new appointment to the court
Public policy
Simply the policy and legislation that affects the lives of US citizens. When the SC rules to uphold or strike down a law, it invariably alters these polices and this has an impact on the people
What are the typical public policy issues?
Death penalty, abortion, affirmative action and same-sex marriage
What are the 3 potential impacts the SC has on public policy?
1) By upholding the constitutionality of a case it protects existing policy
2) By striking down the constitutionality of a case, it removes existing policy
3) Occasionally, by doing either of these, it sets entirely new policy for the whole nation
Name some cases of public policy?
Obergefell V Hodges [2015]
Texas V US [2016]
What are judicial activism and judicial restraint?
Theories that are applied to the actions of SC justices
Why might a justice think ACTIVISM is the correct approach?
- Elected branches often shy away from controversial issues as it may cost them votes
- Current problems need solutions now, and Congress is often slow to act
- Without interpretation the Constitution would become irrelevant
- Ignoring issues could lead to breaches of the Constitution and constitutional rights
Why might a justice think RESTRAINT is the correct approach?
- The SC is unelected and unaccountable, and therefore should refrain from big decisions
- No one can adequately know what the Founding Fathers intended
- Limited ways to check the Court means they should act in a limited fashion
What is the strict constructionist philosophy?
Interpret the Constitution literally with limited possibilities
What is the loose constructionist philosophy?
Interpret the constitution for many possibilities and more flexible and open
Vital UPHELD amendment in the Bill of Rights?
1st amendment and the right to free speech - even in controversial cases such as Snyder V Phelps [2011]
A CONTROVERSIAL amendment?
8th amendment - the death penalty whether ‘cruel and unusual punishment’ is truly outlawed in the USA
IN NEED OF INTERPRETATION amendment?
3rd amendment- there is no danger of the government quartering soldiers in citizens’ houses today, but could this be interpreted as a ‘right to privacy’, which does not exist in the constitution?
Name a few later amendments?
13th amendment (1865) - Making slavery unconstitutional and guaranteeing equal protection of everyone before the law 15th amendment (1870) - The right to vote regardless of race
Methods to fight for race rights?
- using the courts, notably the SC
- civil disobedience and mass demonstrations, such as the BLM campaign
Effectiveness in fighting for race rights is questionable? (African-American districts)
There are currently 23 majority-minority African-American districts, with all but one representatives by an African-American
What does the effectiveness of fighting for race rights suggest?
- That in order to gain representation, race groups still rely on support from their own groups, rather than across the board.
- In 2009, 4.7% of the African-American males were in prison; more than double any other race
What is affirmative action quoted by Kennedy?
‘The contractor will take affirmative action to ensure that applicants are employed […] without regard to their race, creed, colour, or national origin’
What is AA?
Kennedy introduced AA to try and reassess the historic injustices faced by race groups in America and to ensure they had equality of opportunity in the USA
How did President Johnson take AA further?
In 1965 took this further, signing Executive order 11246, which required government department to hire more women and racial minorities
How does AA work? And where has it worked within the education system?
Works to favour those who come from a historically disadvantaged group. E.g. the Regents of the University of California V Bakke case [1978], the medical school put 16 of their 100 spaces aside for racial minority applicants
Positive public opinion on affirmative action?
✅A 2014 survey showed 63% of Americans support AA in colleges
✅Numerous Supreme Court cases have upheld AA in higher education, most recently Fisher V Texas [2016]
✅A 2009 survey showed that a majority of Americans favoured AA (although not preferential treatment!)
