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judiciary/sc Flashcards

1
Q

name some of the sc judges in the US?

A

Brett Kavanaugh, John Roberts (chief), Clarence Thomas, Samuel Alito, Elena Kagan, Sonia Sotomayor, Neil Gorsuch, Amy Coney Barrett and Ketanji Brown Jackson

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2
Q

what is judicial review in the US?

A

allows the courts to clarify the meaning of the law, declare acts of congress unconstitutional
judicial review was first used in 1803 Marbury v Madison, ruled that 1789 Judiciary Act was unconstitutional

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3
Q

why is judicial review important in the US?

A

it is a check on congress and federal/state laws
gives the SC influence over legislation
obergefell v Hodges 2015
Heller v DC 2008
makes important rulings on controversial issues

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4
Q

why is judicial review not important?

A

SC is not able to enforce decisions, therefore must rely on the executive and legislature
also cannot chose to rule on any cases, have to be referred

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5
Q

what are the strengths of the appointment process in the US?

A

congress and the president both have a role in appointing judges, therefore checks and balances have a role
checks and balances on the judiciary by the other 2 branches
strong candidates are nominated, candidates are supported by both parties, unanimous vote RBG 96-3
the senate judicial committee questions the nominee, Gorsuch faced tough questions that lasted 4 days

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6
Q

what are the weaknesses of the appointment process, US?

A

highly politicised
the senate is more likely to be focused on the judges political ideology rather than their experience
Robert Bork failed confirmation because they focused on his views against abortion rather than his qualifications
the senate judiciary committee is politicised, members vote on party lines rather than on the candidates ability and suitability to the court itself.

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7
Q

how does the media play a role in the appointment process in the US?

A

the media can scrutinise the nominee, more focused on controversial issues rather than the qualification that they have.
media coverage can make the appointments more complicated and controversial.
e.g., Clarence Thomas, when his sexual assault allegations were brought to the surface, became the focus of his appointment
HOWEVER, can make the process more transparent

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8
Q

how many judges are the in the US?

A

9 judges

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9
Q

what is loose constructionist view?

A

liberal judges see the constitution as a living document and that it should be adapted to modern day times
in favour of federal government over state government
Elena Kagan, Sonia Sotomayor

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10
Q

what is the current leaning on the court

A

6-3 republicans

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11
Q

what is the view of strict constructionists

A

conservatives, strict interpretation of the constitution
interpret the constitution how the founding fathers would have in these times look at the original meaning
favour state government not federal
e.g., Neil Gorsuch, Clarence Thomas, Samuel Alito

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12
Q

how does the sc protect the right of US citizens?

A

the BoR 1791
judicial review
constitutional rights
re-interpreting the constitutional

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13
Q

how has the 1st amendment protected rights?

A

2011, Synder v Phelps case
ruled that the Westboro Baptist church had the right to carry out anti-gay protests at the funerals of soldiers

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14
Q

how has the 2nd amendment protected rights?

A

2008, DC v Heller, allowed handguns, after DC had banned handguns and all rifles were to be unloaded

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15
Q

how has the 5th amendment protected rights?

A

2000 Dickerson v US
upheld the rights of those who have been arrested to be read their Miranda rights, includes the right to remain silent

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16
Q

how has the 8th amendment protected rights?

A

2005 Roper v Simmons, ruled against the death penalty for under 18s
2008 Baze v Rees and 2015 Glossip v Gross ruled that lethal injection was allowed as a form of the death penalty

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17
Q

what other amendments have protected the rights of citizens in the US?

A

19th - women the right to vote
13th - abolish slavery
26th - lower voting age 21 to 18
14th - right to an abortion Roe v Wade 1973

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18
Q

what legislation has been passed for equal voting rights? in the US (what has this done for turnout)

A

1965 voting rights act, ethnic minorities the right to vote
2012, presidential election, 62% eligible black voters turned out to vote compared to 50% in 1980

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19
Q

what have been the failings of equal voting rights in the US?

A

many african americans have lost the right to vote because of past criminal convictions
2016, 26.1% of african american voters in Kentucky were unable to vote because of previous criminal convictions
photo ID requirements - introduced in 9 states which disproportionate number African Americans do not have

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20
Q

what is the affirmative action case in the US?

A

Gratz v Bollinger 2003
Grutter v Bollinger 2003
universities can help racial minority applicants but must account for each participants ability first.

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21
Q

how is the sc politicised in the US?

A

campaign funding 2010 FEC v citizens united
affirmative action 2016 Fisher v University of Texas
senate confirmation of Neil Gorsuch 54-45
unelected body can make important changes to the most controversial areas of public body
nomination and confirmation process is highly politicised
justices make conservative or liberal judgements, not neutral or impartial
quasi-legislative body

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22
Q

how is the US sc not politicised?

A

it is independent from the other branches
make decisions without the pressures from the other branches
sc judges are not accountable, they are unelected and for a lifetime appoint
SC make decisions based on the law and the constitution
constitution to remain relevant SC must apply it to modern areas of public policy
justices are free and independent once appointed

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23
Q

what is stare decisis?

A

upholding precedents from previous cases when making a ruling.

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24
Q

name sc cases for abortion in the US

A

roe v wade 1973
Gonzales v Carhart 2007
Planned parenthood v casey 1992
Dobbs v Jackson 2022

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25
Q

name famous sc cases in the US?

A

2000 Bush v Gore
1954 Brown v Board
1966 Miranda v Arizona
1896 Plessy v Ferguson

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26
Q

what is judicial activism?

A

the belief that judges should aim to promote desirable social goals through their decisions
regularly use judicial review to overrule actions of the executive and congress
links to that the constitution is flexible and society needs change without formally amending the constitution

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27
Q

what are the strengths of judicial activism?

A

brings important social changes and developments
believe that the founding fathers of the constitution expected the court to actively interpret the constitution to meet society
Burger Court 1969-86 - right to an abortion

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28
Q

what are the weaknesses/criticisms of judicial activism?

A

makes laws when its role should be limited to interpreting the law
when the law should be made by those that are elected
judges are experts in the law but not in the policy areas they make judgements, so therefore should not make the law

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29
Q

what is judicial restraint?

A

linked to conservatives and strict constructionism
it is where judges rarely use judicial review to overrule actions
judges will often defer public policy decisions to elected officials
the Rehnquist court 1986-2005

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30
Q

what are the criticisms of judicial restraint?

A

prevents important social change
precedent is followed from rulings which are out of date with modern society
the constitution should change to meet ongoing developments
Plessy v Ferguson ruled with judicial restraint by upholding racial segregation

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31
Q

what is the composition of the judiciary in the UK?

A

12 senior justices, majority from oxbridge and higher classes, more of a narrow society

32
Q

what is the importance of the senior judiciary?

A

use judicial review to clarify or establish legal position where statute law is absent or unclear

33
Q

what was the CRA?

A

constitutional reform act 2005, reduced the power of the LC and a new independent judicial appointment commission JAC
hope to enhance separation of branches and increase transparency
more socially representative of society
removed law lords from HoL

34
Q

what was the old appointment system in the UK?

A

once made by the monarch with the advice from the PM and lord chancellor.
Lord chancellor made his choice on secret soundings with close associates and those serving in the sc
system lacked transparency, undermined the separation of powers, senior judiciary drawn from a narrow social circle

35
Q

what were the reasons the SC was established, UK?

A

concerns over separation of powers
widespread criticism of the system used in which the law lords were appointed
confusion of the role of the law lords among the public

36
Q

what are the main functions performed by the SC, UK?

A

act as final court of appeal for England, Wales and NI
hear appeals from civil cases in scotland
hear appeals in cases where there is uncertainty and clarify the meaning of the law

37
Q

what are the key doctrines that underpin the SC’s work?

A

Rule of Law
judicial independence
judicial impartiality

38
Q

what features of the UK system support judicial independence?

A

security of tenure
guaranteed salary
contempt of court
separation of powers
independent appointment system
training and experience

39
Q

what is security of tenure?

A

judges are appointed for an open-ended term, harder to politicians to bring influence to bear by threatening to sack or suspend them.

40
Q

what are guaranteed salaries?

A

judges’ salaries are paid automatically from the Consolidated Fund, this means that politicians are unable to manipulate judges’ salaries as a way of controlling them

41
Q

what is contempt of court ?

A

media, ministers and wider public are prevented from speaking out publicly during legal proceedings

42
Q

what is the independent appointment system?

A

creation of the JAC brought greater transparency to the process of the judicial appointments and served to address the accusations of political bias

43
Q

what is training and experience?

A

most senior judges have served a long apprenticeship in law, they have high status and take considerable pride in their legal standing. highly unlikely to compromise their professional integrity to defer to politicians or public opinion.

44
Q

how is judicial impartiality guaranteed?

A

anonymity
political activity
legal justification
high-level training

45
Q

what is anonymity?

A

judges generally operate away from the public eye and rarely speak out publicly on issues of law or public policy. senior judges are expected to avoid being drawn into open defence of their rulings or open criticism of those in the government

46
Q

what is political activity?

A

judges are not supposed to campaign on behalf of a political party or PG. judges retain the right to vote, their political views should not become a matter of public record.

47
Q

what are legal justifications of judgements?

A

senior judges are expected to explain how their decisions are rooted in law make it less likely that decisions will be coloured by personal bias

48
Q

what is high-level training?

A

judges are part of a profession that is highly trained and regulated by the Law Society, elevation to the bench would suggest the ability to put personal bias aside. additional guidance and training can be offered or required where there are concerns

49
Q

what are the threats to impartiality?

A

narrow recruiting pool could make it harder for judges to make impartial decisions when their own life experiences are so different from the rest of the population
judges have been drawn into openly political conflicts, measures such as HRA 1998 has resulted in politicisation of the judiciary

50
Q

what is the definition of ultra vires?

A

judges decide whether someone has operated beyond the authority granted to them under the law

51
Q

what are the arguments that UK judiciary is politicised?

A

HRA 1998, rule on merit rather than application
factortame case 1990
creation of SC and physical relocation
politicians have broken convention by publicly criticising rulings handed down by senior judges

52
Q

what are the arguments that UK judiciary is not politicised?

A

creation of JAC, enhanced transparency and addressed concerns over political interference
UK senior judiciary has become more independent by the CRA, downgrading LC
increased conflict between judges and politicians in a ‘positive’ shows hat courts are challenging the government
senior judges still benefit from security of tenure and guaranteed salaries to insulate them from political pressure

53
Q

in what ways has the UK judiciary been enhanced?

A

growing importance of the EU law
impact of the HRA 1998

54
Q

what are the powers of the SC in the US?

A

declare laws unconstitutional
amendments to the constitution

55
Q

what is the appointment system for presidential selection of a judge?

A

president’s team draws up a list of possible nominees, if they are judge their previous rulings on cases are closely scruntinised to see how they might vote in the future.
nominees must be confirmed by the senate, so presidents need to be confident that their candidate will attract necessary support from senators.
candidates are short-listed and have background checks.
presidents may interview the candidate before choosing final.
when announced there is a mass of public and media scrutiny

56
Q

what happened to Anthony Kennedy when he was interviewed?

A

intense process, interviewed by the FBI for more than 10 hours and asked questions on topics ranging from sexual history to treatment of animals.

57
Q

what are the 3 stages of the appointment process of a judge in the US?

A

president nomination
senate confirmation
independent once appointed

58
Q

what happens in the senate confirmation?

A

nominee is considered by the senate judiciary committee
witnesses help to assess the nominee’s suitability and the nominee is interviewed by the committee in a televised hearing.
senate judiciary committee votes on the nominee.
vote tends to unanimous RBG - 96-3
Clarence Thomas - 52-48

59
Q

what was controversial about the appointment of Clarence Thomas?

A

the nomination was derailed by sexual harassment accusations
he was a highly partisan vote, 11 Democrats supporting, 2 Republicans opposing

60
Q

what was controversial about the appointments of Brett Kavanaugh and Amy Coney Barrett?

A

Kavanaugh - nominee was rejected, no hearing because of the presidential election in 2016.
Barrett - 2020 Presidential election was a few weeks away, the Republicans were eager to take advantage of their senate majority.

61
Q

what happens after the judge is appointed in the US?

A

judges are completely independent and have life terms, president’s influence ends and they cannot be removed from office
David Souter - appointed by Bush a republican, unexpectedly turned liberal

62
Q

what examples are there that judges vote against the president?

A

Bill Clinton - RBG and Breyer ruled that the president was not immune to prosecution.
Trump - Gorsuch and Kavanaugh judged Trump v Vance and Trump v Mazars, the president did not have an absolute right to withhold his tax returns and financial records from an investigation

63
Q

what is partisan gerrymandering?

A

redrawing electoral district boundaries to give an advantage to one political party. racial gerrymandering is broadly illegal but the SC has ruled partisan gerrymandering is a political question that cannot be decided by the federal courts.

64
Q

what is the significance of political appointees? US

A

the balance of the court is watched, with the current conservative majority 6-3
the health of older justices is an interest to the media. with Ruth Bader Ginsburg’s medical news making headlines for years before her death in September 2020

65
Q

what is the significance of controversial rulings? US

A

ruled on controversial areas, abortion, affirmative action, gun control, marriage rights and immigration.
landmark rulings have led to politically significant changes to the law.
Roe v Wade 1973, Obergefell v Hodges 2015
court has also intervened in the electoral process - Bush v Gore 2000.

66
Q

what is the significance of a ‘quasi-legislative’ body?

A

unelected judges have created new rights and laws for America. it can be argued that the court has moved beyond its constitutional role of interpreting the law.

67
Q

what do strict constructionists believe?

A

strict constructionists and originalists argue that the text of the constitution should be followed strictly, interpreting the constitution as the founding fathers wanted.

68
Q

what do loose constructionists believe?

A

the constitution should be interpreted loosely and applied to a modern context as opposed to the founding fathers.
they view the constitution as a living document.

69
Q

what is the significance of judicial restraint?

A

there is considerable debate to how the SC exercises its power.
conservative judges practice judicial restraint - rule in line with past precedent. rarely overturning what congress has passed.
upholds the principle of stare decisis.

70
Q

what is significant about judicial activism?

A

Liberal justices accused of practising judicial activism. aimed at improving society, likely to strike down laws and rule against executive actions, seen in the Board v Topeka landmark case.

71
Q

what is the significance about federalism?

A

frequently, the SC has made judgements that overruled state laws - DC v Heller 2008,
Roe v Wade, some states made having an abortion illegal but this overturned it. similar to that of Obergefell v Hodges 2015, legalising same-sex marriages
conservatives believe that diversity among states is essential in a federal country.
Liberals argue that state rights have been used to justify discrimination

72
Q

what are the limitations of the UK’s SC under the HRA?

A

HRA is not entrenched nor superior to regular statute, HRA can be amended, suspended or repealed.
courts can make declarations of incompatibility and invite parliament to reconsider the offending statute
cannot strike down parliamentary statute
but where statute is silent or unclear the courts can establish legal precedent in common law

73
Q

what influence does the judiciary have on the UK government?

A

judicial review requires for the law to be clarified or renewing appeal cases heard previously at lower courts. even though parliamentary sovereignty inhibits the actions of the judiciary it has become more active.
CRA reduced the role of LC
clearer physical separation
precedent established under the Factortame case, senior judges suspended the actions of parliament and the executive

74
Q

how does the judiciary not have influence over the government in the UK?

A

limited powers, change secondary legislation not primary, DOIs and ultra vires
government can ignore
physical separation but not symbolic
ministers can pass retrospective legislation legitimising their previous actions that had been riled as ultra vires

75
Q

what has Brexit done to the power and authority of the courts?

A

leaving the EU, does not mean it removes the UK’s obligations it has towards the ECHR
the UK would never remove the convention itself,
the SC will no longer enforce EU law, no longer precedence
the court has developed a more public profile but there has been little significant change from what the Law Lords would have done

76
Q

is there a threat with the growing authority and influence of the sc in the UK?

A

adapt of a quasi-legislative power
judicial independence requires senior judges are free to interpret the law and dispense justice fairly, therefore most judges are unelected.
SC has not gained in formal power than it previously held, but might possess greater authority. this is because the nature of its foundations and its operations have changed. more independent, less opaque appointment system, clearer separation,

77
Q

what was the UK court’s ruling about the prorogation in 2019?

A

court argued that the use of the royal prerogative must always respect the conventions of parliamentary sovereignty and democratic accountability
the prorogation had an extreme effect on the fundamentals of democracy as it was a crucial point in the Brexit process. declared the prorogation unlawful, and MPs could return to parliament

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