SCOTUS - as a political institution Flashcards
living constitution
we must interpret the constitution because otherwise it will be out of date in the light of modern developments.
Founding Fathers did not envisage the world which exists today and some of the Constitution is meaningless without interpretation e.g., Founding Fathers were not writing about semi-automatic rifles in the Second Amendment.
e.g., Elena Kagan
originalist constitution
interpretation of the constitution makes it an inherently political thing which undermines its independence and ability to check on other branches of govt.
if the law is continually evolving, there is no certainty for people to know what the law is until after a judge has decided.
e.g., Brett Kavanaugh
judicial activism
explain DC v Heller
a justice who uses their position to achieve rulings that give desirable social ends as far as ideology is concerned.
examples of conservative judicial activism include 2008 DC v Heller - extended the provisions of the Second Amendment to include the individual’s right to bear arms for reasons unconnected with service in the militia, including lawful purposes such as self-defence.
is judicial activism really that big an issue?
Kermit Roosevelt comments in his scholarly book The Myth of Judicial Activism 2006 that ‘perceptions of appropriate judicial behaviour are invariably affected by ideology’ - people label decisions judicial activism when they disagree with it.
judicial restraint
stare decisis
Whole Woman’s Health V Hellerstedt 2016
the court is more inclined to accept the views and actions of Congress or any elected officials.
more emphasis on judicial precedence.
stare decisis = let the decision stand.
e.g., WWH v Hellerstedt 2016 demonstrates a continuing defence of Roe v Wade 1973.
example of conservative judicial restraint
e.g., Bucklew v Precythe 2019
SCOTUS has continually defenced execution - it is the responsibility of the prisoner and not the state, to demonstrate that execution contravenes eight amendment by constituting cruel and unusual punishment.
in this case, stare decisis was followed and ruled that prisoners should be executed - justice Gorsuch wrote the man opinion and argued that whilst the 8th amendment forbids cruel methods of capital punishment, it doesn’t guarantee a prisoner a painless death.
SCOTUS = JUDICIAL
1a stare decisis
helps them lend legitimacy to the decisions it makes - obligation to historical precedent.
SCOTUS = JUDICIAL
2a majority opinion
more than 2/3s of cases are decided by a majority of the justices which implies they are basing their decisions on more than opinion because some justices have voted against their own political ideology.
SCOTUS = JUDICIAL
3a no authority to enforce decisions
only elected branches can enforce decisions.
SCOTUS = POLITICAL
1b amicus curiae briefs
1950s - only 23% of cases saw amicus briefs submitted
2017-2018 session saw 890 briefs submitted for 63 cases, with every single case having at least one amicus curiae brief.
more pressure groups are voicing their opinions on appointments to SCOTUS just as they would political candidates in elections.
SCOTUS = POLITICAL
2b imperial judiciary
justices are legislating from the bench - courts have become excessively powerful with too much impact on public policy.
SCOTUS = POLITICAL
3b appointments process
2017 - Merrick Garland failure nomination by Obama
2018 - Brett Kavanaugh and Lindsay Graham’s remarks from the SJC
2020 - Amy Coney Barratt
2022 - Ketanji Brown Jackson
