SCOTUS Flashcards
Scotus is politically neutral
Justices are independent and purpose to be politically neutral Some justices do not reflect political stance of President who appointed them e.g. David Souter appointed by bush
- Some justices do not consistently vote the same way e.g Anthony Kennedy was a ‘swing vote’ . Also Trump nominees got such gorsuch and Kavanaugh ruled against him in trump v Vance 2020 - constitutionally cannot lose their seat ‘ do it face term limits’ or have pay altered so free to rule on manners based on facts of the case. Basis of legal argument not political principles. Also a significant proportion of judgments are unanimous or near unanimous - at least on significant landmark cases eg. Brown .v board arguably one of the most substantial court cases in history or at least for warren court faced a unanimous decision despite conservative alignment with segregation. Also though unelected judges are confirmed by the senate which is an elected body making decision on the peoples behalf, their job, so arguably indirectly democratic. Even though it oliticised.
Scotus is not politically neutral
Are not politically neutral and most justices broadly reflec political stance of president that appointed them 6-3 conservative. Unelected bod it makes decisions on most controversial matters of public body. Tend to make broadly libera or conservative judgements EXAMPLES AND SIGNIFICANCE + politicisation of confimratmion process eg. GORSUCH and Roberts and ketanji brown Jackson
Also arguably interrupted political processes eg. BUSH v Gore 2000
For and against judges engaging in political activism
Some judges engage in judicial activism among to improve society by interpreting the consitituon in a way not intended by its framers eg. Same sex marriage ( US. V Windsor 2013 or obergefell v hodges 2015) . In a landmark 5-4 majority Supreme Court rules section 3 of DOMA is unconstitutional and that the federal government can’t descrinimate against same sex marriage for the purposes of determining federal benefits and protections. Obergefell v hodges extended upon that in 2015 using the due process clause and 14th amendment equal protection clause to require all 50 states to recognise and perform same sex marriage. Officially legalising it without legislature or elected officials input. Politicised them to rue of a decisive matter that won by 1 judge 5-4.
BUT
followed by legislation respect for marriagee act 2022 showing the Supreme Court to only set a moral presidence based on the general opinion and update law based on universal acceptance faster than congress can. Uphold rights and interpret the consitituion as this is a right more so than a political stance.
Argument the Supreme Court is the third house of the legislature
Loose constructionist interpretation has led to criticism of Court acting as an unelected ‘third house of legislature’, making rather than interpreting the law
- Judgments can only be reversed by a formal constitutional amendment or by the Supreme Court overruling itself, so have the effect of amending the Constituion
- In Bush v Gore 2000 Court ruled against a recount in Florida, this was controversial and gave Bush victory
- Rucho v Common Caise 2009 Court ruled 5-4 that partisan gerrymandering was not unconstitutional, this was very controversial as veridct was made on ideological grounds, 4 lib, 5 cons
Arguments against the Supreme Court acting as the third house of the legislature
Many justices practice judicial restraint
- If the Constituion is to continue to be relevant the Court must apply it to modern areas of public policy, even if controversial
- Even a conservative majority Court can deliver judgeents that please liberals: Bostock v Clayton County 2020 it ruled 6-3 that employees had a right not to be discriminated against for being LGBT
- Congress acts as a check on power of SC, if it wished it could initiate a constitutional amendment to overturn courts decision
- Following contested 2020 election, the Court unanimously rejected a bid by Texas to throw out results of 4 states that had voted for Biden, 3 justices had been nominated by Trump and ignored claims of ‘rigging’
Arguments the Supreme Court shapes policy
Abortion:
roe v wade 1973 then Planned Parenthood v Casey 1992
- Court upheld right of state to regulate abortion in early stage of pregnancy, provided this regulating was not an ‘undue burden’
- Conservative majority in Court meant some hoped Roe v Wade would be overturned
- Court applied stare decisis by protecting right to an aborition
- However, state had increased power to regulate it
Gonzales v Carhart 2007:
- The Partial-Birth Aborition Ban Act 2003 was passed by Congress and signed into law by Bush
- ‘Partial-birth’ abortions in later pregnancny remained illegal as intended by Congress
- Court allowed Congress to ban this Act was ruled unconstinutional in lower courts but SC ruled 5-4 in favour type of abortion even if woman’s health was affected (though not if life in danger) - Identity of judges may have played a role, Ginsburg only woman on Court and opposed decision, 5 majority were all Catholic
- Inspired by their success, religious and conservative pressure groups switched to a strategy of eroding aborition rights through legislation and legal challenges not overturning Roe v Wade
THEN Dobbs v Jackson 2022
Arguments Supreme Court does not shape policy
aren’t passing legislation simply nterpteting what is there and checking congresses power. Issue of abortion and gun rights are the only 2 mainly divisive issues so courts rulings may fluctuate on its political leanin not creating legislation. On other issues like Ricoh v commmn clause declared in nonjudicible and outside courts jurisitiction is playing courts to step back in congressional matters that are not a grey area. States also retained the power to decide to in force abortion bans and ruling in planned parenthood v Casey 1992 allowed states to once again house how to enforce abortion limitations so long as it did not cause undue burden - vague statement.
Arguments Scotus usurps congressional power
Usurps power of congress eg. US v Windsor struck down DOMA 2013 and 2015 Obergefell v hodges took it a step further and made it so states had to enforce it. Undermined and then reasserted power over congressional legislation in areas of gay marriage
Amending the constitution
Roe v wade and dobbs v Jackson
obergefell v hodges 2015
Judicial activism using loose constructionism
Interfer politically
bush v gore
Shelby country v holder 2013
Arguments Scotus does not usurp power
during obamas time if office also times courts upheld congressional power eg. NFIB V Sibellius where the individual mandate was upheld but did not allow for the expansion of Medicare and threat iof fudning withdrawals. Which partially upheld congress legislation - PARTLY.
McDonald v Chicago 2010
citizens united v fec 1st amendment 2010 protected
planned parenthood v Casey 1992 upheld roe ruling stare decisis.
rucho v common clause 2019 recently and Harper v Moore 2023 gave power back to states to protect against gerrymandering whcih inhibits political processes.
Affirmative action cases (what they did )
parents v Seattle
fisher v uni of Texas
Harvard v sffa
california v bakke
Swann v Charlotte mecklenorg
Brown v board
Health equality has been advanced in 21st century
ACA 2010 number of uninsured Hispanics 21% difference between Hispanic and white uninsured is 9.4%
NFIB V SEBELLIUS 2018
But
NFIB V SEBELLIUS and hap between j insured blk and white fell 4.1%
Disporotpotional racual Incarceration has been advanced
INCARCERATION; obama- first step act which is moderately decarcerating measure also states like texas have done a significant amount to reduce its prison population BUT this was partly for fiscal reasons
but
-INCARCERATION; black people are 5 times more likely to be stopped for no real standing reason
Scotus nomination is politicised
Interest groups have too much power in this process whilst being an unelected body. eg federalist society giving trump a list of possible SC candidates during his election in 2016. He promised to appoint them and he did Gorsuch etc.
choose judges based on political leaning rather than merit.
Eg George W Bush wanted to appoint Harriet Meirs as she was part of his inner circle and had same ideological position however her process was unsuccessful because of her lack of judicial experience.
Scotus nomination not political
Federalist Society and other pressure groups are experts at what they do and an argument could be made for them even enhancing the process.
SC justices have a lifetime tenure and cannot be removed for deviating from their political leaning.
E.g Justices Roberts and
Kavanaugh unexpectedly joined their more liberal colleagues in a major US Supreme Court voting rights decision, 5-4 ruling in Allen v Milligan a nearly 40-year-old test for determining whether states have drawn voting lines in a way that disadvantages minority voters.( gerrymandering )
Scotus senate judiciary committee hearing senationslised
Senate Judiciary Committee hearing:
Use of media has led to it becoming sensationalised and something of a spectacle rather than the serious matter it is. Members of congress are also constantly talking over each other and use it as a time to take digs at the opposing party.
- E.g - Ketanji Brown hearing, Republicans out rightly discredited her including an accusation from Senator Josh Hawley that she has a habit of letting child porn offenders off the hook” (that claim was quickly disproven.
- Eg - Clarence Thomas and Brett Kavanaugh’s hearings were used as a place to debate the sexual assault cases against them.
They can be seen as hypocritical
- E.g Obama nominated Garland to replace Scalia after his death in 2016 but was refused a hearing as it was an election veani yet Trump was allowed to successfully appoint Amy Coney Barett in 2020 to replace RBG and this move directly contradicted Revublicans claims in 20161 that judicial hearings should not take place in an election year.
