Judiciary USA Flashcards
First case of judicial review
Fletcher v Peck 1810 striking down Georgia state law
Vague focuses of SC over time
Pre-1965 state-federal cases like Dredd Scott, then up to 40s was state regulation of the economy, then civil rights
Example of SC death and resignation
Rehnquist in 2005 and Stevens in 2010
Number of Carter SC appointments
0
Why do Presidents choose SC nominees based on their ideas?
Legacy past 8 years in office, SC is ‘echo chamber’ of previous Presidents pushing for restraint or activism
Why do Presidents choose SC nominees based on pressure groups?
To please them like Marshall Thurgood in 1967, Sandra Day O’Connor in 1981 and Sonia Sotomayor (Hispanic) in 2009
Why are some judges more important than others?
Swing judges such as Sandra Day O’Connor who will change 5-4 decisions are key, replaced by Alito in 2006 so now is Kennedy
Why do Presidents choose SC nominees based on Congress?
They need to make sure they will have the expertise (ie not Miers in 2005) to be supported in Senate or to pass in a divided government (ie not Bork in 1987)
Trials of Clarence Thomas explained
Lowest American Bar Association ranking for SC nominee ever, scrapped through Senate Judiciary Committee hearings, 52-48 vote in Senate
Numbers showing increasing partisanship of SC nomination
Ginsburg 96-3 in 1993 while Kagan 63-37 in 2010 showing recognition of SC powers and change from mere vetting to a political process
3 reasons why SC judges are not always that important to a Presidency
Can only come when a space appears, cannot remove justices or influence decisions, and some nominees can be ‘the biggest damn fool mistake I ever made’ (Eisenhower on Warren, could also be used for Bush on Souter since 1990)
SC impeachments
One in 1805 of Samuel Chase
What is loose constructionism?
Ideas of ‘living constitution’ and rejection of original intent as the FFs are around so could not have foreseen the changes in society which have occurred
What is judicial activism?
Not leaving changes to be made by elected officials with electoral mandates to reach contemporary social needs like equality or justice
1966 Warren classic
Miranda v Arizona on 5th Amendment bringing about Miranda rights
How did Warren affect election politics?
Led to Nixon in 1968 calling for ‘law and order’ justices for nomination who would not legislate from the bench and be part of the imperial judiciary
Sexy shadow word
Penumbras (that which can be read between the lines)
Classic 1971 Burger case
Swann v Charlotte-Mecklenburg ending de facto segregation by forcing busing to achieve a better racial balance under 14th Amendment equal protection clause, promoting integration
What is the basis of strict constructionism?
Not having mandate from FFs in Constitution, not being elected (keeping out of the political thicket) and not being responsible for outcomes, idea of fixed principles of Constitution
Mr Original Intent
Scalia
Fancy word for following precedent
Stare decisis
Bush v Gore decider
Sandra Day O’Connor
Roberts Court restraint on abortion
2007 Gonzales v Carhart 5-4 upholding Congress ban on parcial-birth abortion
Roberts Court restraint on firearms
2008 DC v Heller 5-4 upholding individuals constitutional right to bear arms overturning DC law on handguns as first SC 2nd Amendment case
Roberts Court conservatism on campaign finance
2010 Citizens United v Federal Electoral Commission striking down McCain-Feingold 2002 finance reform legislation/2003 McConnell v FEC, upholding corporate and union 1st Amendment freedom of speech
2 examples of Roberts Court restraint on TU
2011 Walmart v Dukes weakening employees right to class action and 2013 American Express v Italian Colors Restaurant weakening small companies ability to take class action against large corporations
Roberts Court restraint on police
2013 Maryland v King upholding rights of police to take DNS samples without a specific reason
Roberts Court activism on prisoners
2006 Hamdan v Rumsfeld upholding rights of Guantánamo Bay inmates to due process
Roberts Court activism on healthcare
2012 Sibelius case upholding parts of Obamacare in 5-4 with Roberts as swing
Roberts Court activism on marriage
US v Windsor and Hollingsworth v Parry both in 2013 striking down Defense of Marriage Act and legalizing the legalisation of gay marriage in California
Case upholding racial profiling
2003 Grutter v Bollinger, constitutional if individualized and not done by quota or preferential treatment
Case upholding freedom of religon
1962 Engel v Vitale denial of establishment of religion, so no prayers in school or public places as FFs did not want this
Case upholding freedom of expression (vulgar)
2011 Synder v Phelps upholding Westboro Baptist Church ability to protest outside military funerals
Congress power over SC
Impeachment and changing size, such as 1869 Judiciary Act (last change) and Roosevelt’s threatened court-packing if New Deal programmes not supported (SC backed down)
Example of SC self-restraint
Refusing to hear cases such as 2005 Schaivo right to die, seen as deferring to electoral branches
3 examples of SC inability to uphold own rulings
Brown (Little Rock), public prayer still occurring post-Engel, and legal restriction on abortions, not unfettered access
Justice Kennedy quote after Lawrence v Texas showing temporary nature of SC rulings
Bowers (criminalizing homosexuality) was not correct when it was decided and it is not correct today. It ought not to remain a binding precedent
2 terms for SC showing political nature
‘Judicial policy making’ and ‘quasi-legislative judicial authority’
Example of SC overruling popular vote
Prop 8 in California, 2008, banning same-sex marriage was ruled unconstitutional in 2013
2 different ideas about power of judiciary
Government by judiciary (as decisions taken by elected officials in some countries are taken by judges in US) or Hamilton’s ‘least dangerous branch’
What is the paradox of the SC?
US is proud of democracy and holding leaders accountable, but many of the most crucial decisions are taken by unelected officials where nobody guardes the guardians of the Constitution
How is the UK SC less powerful than in the US?
Limited by Parliamentary sovereignty so can only make ‘declarations of incompatibility’ with HRA, and no entrenched rights to protect, or ability to change statute law
How is the UK SC less political than in the US?
2005 Constitutional Reform Act brought about JAC so no parliamentary confirmation process
Constitution on SC
The judicial power of the United States shall be vested in one supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish
How many Courts of Appeal/Circuit Courts are there?
13
When was the last change to the number of SC members?
1869
Constitution on SC justices service time
During good behaviour
Example of judge resigning
1968 Abe Fortas
How many SC Chief Justices has there been?
16
Which 3 locations does the President and his staff get advice on for SC nominees?
Congress (Senate Judiciary Committee), groups like American Bar Association and friends/relatives
Where was Sandra Day O’Connor from before SC nominee?
Arizona State Court of Appeals (example of state court nominee)
Where was Rehnquist working before becoming SC nominee in 1971?
Number two in Justice Department
Example of Congress to SC rumours
George Mitchell, previous Senate Majority Leader rumoured for Clinton appointment
Example of academia for SC
Douglas H. Ginsburg put forward for nominee as a Harvard scholar in 1987
Example of issue with cases needed for SC to function
War Powers Act thought to be unconstitutional but no case ever brought against it
Difference on segregation rulings of Brown and Swann
De jure removal of state law and then de facto integration
Affirmative Action case of 1995
Adarand Constructors v Peña banning affirmative action in this case as it was unconstructive for government, but still ruling that some AA cases were allowed
Affirmative Action case of 2003
Gratz v Bollinger banning AA for giving minority candidates to university 20/150 needed points off the bat, as too ‘mechanistic’
What occurs in the media directly after a SC nominee announcement?
All eyes to American Bar Association for ‘well qualified’, ‘qualified’ (Thomas) and ‘no qualified’ rating
Why was Bork an issue nominee?
Had fired Archibald Cox, independent prosecutor over Watergate for Nixon
Who made claims about Thomas in Senate Judiciary Committee hearings?
Professor Anita Hill
Scalia quote on his strict constructionism
The Constitution is not living but dead. Our first responsibility is not to make sense of the law - our first responsibility is to follow the text of the law
Which groups worked against Bork while a nominee?
National Action Rights Action League and NOW - $15m TV comercial campaign
Number of judicial reviews declaring federal laws unconstitutional in 40s and 80s
2 up to 16
Quote of political commentator Mark Shields and importance
Parties are ‘separated by the issue of abortion’ yet still only SC decides on the matter
Politicians in robes?
A third house of legislature
Why do Presidents have power over SC rulings?
De jure supporting (Eisenhower on Brown) of court results or not supporting (Bush on Texas v Johnson ‘wrong, dead wrong’)
Darwinism under the law
1968 Epperson v Arkansas - ban on teaching of Darwinism struck down, 1987 Edwards v Aguillard - Louisiana law of teaching creationism alongside Darwinism struck down
Byrnes on court interpretations
The Court did not interpret the Constitution - the Court amended it
Internet SC case
1997 Reno v American Civil Liberties Union, striking down parts of 1996 Communications Decency Act due to abridging freedom of speech
Example of SC turning a blind eye
Not prosecuting matters about a ‘truth drug’ used on prisoners after 9/11
Example of SC upholding prisoner rights post-9/11
2004 Hamdi v Rumsfeld, 3 years in isolation not due process
What was Earl Warren before becoming an Associate Justice?
Governor of California
Why is the SC better than a democratic judiciary?
Lower courts democratically elected often have decisions overturned by SC
3 freedom of speech tests
Clear-and-present danger test, bad-tendency rule and obscenity test
Freedom of speech on libel
Slander test and libel test protect from lies damaging people unless not malicious and of a public figure
Example of prior restraint
New York Times v US 1971, Pentagon Papers published as a result of Nixon losing a prior restraint case trying to stop damaging Vietnam War information coming to light
Right to gather case
National Socialist Party v Skokie 1978 giving Nazis right to gather with swastikas
Foundation of Roe
Griswold v Connecticut 1965, right to contraception under Justice Douglass’s idea of right to privacy in Ninth
Scalia on 2008 Kennedy v Louisiana on only death for murderers
The views of the American people were irrelevant
Precedent word
Stare decisis
Number of cases taken by liberal courts and Roberts courts
Up to 200 versus 70-75 a year
