Philosophy

Question 1

What is strict constructionism?

Answer 1

An approach to judicial decision making that limits the role of judges by requiring them to interpret the Constitution by following its precise meaning.

think that unelected judges should restrain from exceeding their power to interpret the law when it is the subject of a dispute and should therefore should avoid striking down federal or local laws unless they have clearly breeched the constitution.

States laws are the most important thing

Look at original intent of the founding fathers and are therefore sometimes called ‘originalists’

Constitutional principles are fixed and not evolving

Language of the constitution is supreme

associated with conservatism judicial philosophies such as originalism

Question 2

What is loose constructionism?

Answer 2

an approach to judicial decision making that requires judges to take a more active role by interpreting the constitution beyond the literal meaning of the text, finding the spirit of the constitution.

considers how the meaning of the relevant section should be constructed in line with contemporary social attitudes, they take a broad view of what the founding fathers intended.

Loose constructionists feel that judges should take an active role in bringing about social change, they do not have to worry about re-election and can therefore ensure all Americans are protected under the constitution.

associated with liberal judicial philosophies such as judicial activism

Read elements into the document they think the framers would approve

Question 3

What are Roberts court rulings like?

Answer 3

A mixed character, uncertain outcomes.

Question 4

Which three justices dissented in Obergefell v Hodges?

Answer 4

Scalia, Thomas and Alito

Question 5

What is judicial activism?

Answer 5

An approach to judicial decision making which holds that a judge should use his or her position to promote desirable social ends.

Question 6

What is judicial restraint?

Answer 6

An approach to judicial philosophy making which holds that a judge should defer to the legislative and executive branches, which are politically accountable to voters, and should put great stress on precedent established in previous court decisions.

Question 7

Which courts have been activist?

Answer 7

Earl Warren 50’s and 60’s
Made decisions such as Brown and Miranda
Moving society in the right direction

Warren Burger
Activist Roe v Wade

Question 8

What do activist judges think about the three branches of govt?

Answer 8

All equal

The Supreme Court is an equal player in shaping America

People who don’t like this say they try to ‘legislate from the bench.’

Question 9

What is stare decisis?

Answer 9

‘To stand by which is decided’
Keeping to past cases precedent
Associated heavily with judicial restraint and strict constructionism

Question 10

How can you suggest that activist rulings can have conservative or liberal impacts?

Answer 10

The court that struck down new deal laws were activist and conservative

Dc v Heller is arguably activist and conservative

Obergefell is activist but liberal

has conservative activism replaced conservative activism

Question 11

What was the Warren Court like?

Answer 11

liberal

Question 12

What Is the Roberts court like?

Answer 12

mostly conservative, more conservative than its predecessors

some of the most conservative judges since 1937 sit on the court now, even Kennedy is very conservative

refused to hear largest ever sex discrimination case (Walmart V Dukes)

It’s conservatism is far from uniform on issues such as free speech, war on terror and separation of powers

Question 13

In the 2010-2011 Roberts court what fraction of cases were 5-4 decisions? What percentage of these were ideological divisions? Of ideological divisions what percentage went the Conservative way thanks to swing justice Kennedy?

Answer 13

1/5 were 5-4 decisions
90% of these were split on ideological lines
of these 71% went the Conservative way thanks to swing justice Kennedy

Question 14

How can Snyder v Phelps be seen as Judicial activism and liberal?

Answer 14

free speech protections were extended to conduct most conservatives strongly opppose

Question 15

In it’s first five years of the Roberts Court what percentage of decisions were conservative? What was the percentage of conservative rulings for the Warren, Burger and Rehnquist courts?

Answer 15

58%
Warren 34%
Burger 55%
Rehnquist 55%

Question 16

What are criticisms of strict constructionism?

Answer 16

It would lead to a very narrow interpretation that would lead to the limitation of development to civil liberties

these concerns were highlighted when Reagan tried to appoint Bork to the court, people argued that his approach to interpreting the constitution would lead to minority groups being discriminated against as these groups were not specifically provided for in the constitution (e.g. women)

However, strict constructionists would argue that the constitution can be amended to respond to chafes in society. These changes should be made by elected politicians not unelected judges.

Question 17

How is loose constructionism criticised?

Answer 17

‘legislating from the bench’ creating rights based on personal belief as opposed to what the founding fathers intended. They are undermining the separation of powers!!

Question 18

When did Loose constructionism dominate the court? what is the classic example of loose constructionism

Answer 18

mid 1950’s - 1970’s with activist judges such as Thurgood Marshall interpreting the constitution to protect range of civil liberties.

1973 Roe v Wade, interpreted the 9th amendment and its right to privacy as a right for a woman to abort a pregnancy.

Question 19

How many amicus currie briefs were submitted for Obergefell?

Answer 19

149, most in favour of equal marriage- they have influence?

Question 20

How does the administration lobby the Supreme court?

Answer 20

Office of the Solicitor General, located in the department of justice asks the court to review cases and submits amicus currie briefs. Highly influential as they have a close relationship with the court

Question 21

What rulings of the court have exerted profound and powerful effects?

Answer 21

Roe v Wade
Brown v Board
Bush v Gore