Supreme Court Flashcards
Constitutional role of Supreme Court
Article III- 377 words
“The judicial power of the US, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish”
1) Judicial power vested in Sup Court
2) Congress can establish courts
3) Justices have life tenure in times of ‘good behaviour’
4) Appellate court, except in limited circumstances where it has ‘original jurisdiction’
5) Article 3 (s2) - hear cases involving:
- USA as a party
- Treaties
- Ships on the high seas and navigable waterways
- Marbury v Madison - constitutional matters
- Fletcher v Fleck - disputes between states
(granted itself powers)
Independence
1) Life tenure in times of ‘good behaviour’
– Truman = “wherever you put a man on the Sup Court he ceases to be your friend” - 2 of his appointments voted against him
– Eisenhower - Earl Warren - Brown v Board of Education - “that dumb son of a bitch Earl Warren”
2) No retirement age
– Pre 1900 - 38 / 57 died in office, since then 39 / 46 left by retirement
– Only to be impeached, Samuel Chase (1805), but not removed
– Ruth Bader Ginsburg - died office - 87
3) Salary which shall not be ‘diminished’ during time in office
– $265,000
– Chief Justice = $277,700 (2020)
4) Justices appointed, not elected
-Nom by Pres + approved by Senate - no single party can fill court with same ideology
5) Separation of powers
- Check on each other - impeachment
Importance + powers
“We are under a constitution, but the constitution is what the judges say it is” – former Chief Justice Charles Evans Hughes
Power of judicial review - Marbury v Madison (1803)
Judicial Review = power of Sup Court to declare legislation and executive actions as unconstitutional
Constitutional powers:
- Decide whether it’s const or not
- Interpret vague language
- Update meaning of words
– Clinton v City of New York
– Marbury v Madison
– Buckley v Valeo - spending limits unconstitutional
– Citizens United v FEC (2010) = preventing organisations from using their funds for political advertising violated 1st amendment freedom of speech
–As of 2014 = Sup Court struck down 176 laws as unconstitutional
– Jefferson= judicial review places them under despotism of an oligarchy
Political powers:
- Pol issues -voting
- Justices increasingly partisan
– Bush v Gore (2000) - Florida recount unconstitutional
Quasi-legislative powers:
- Rule on social issues, make legislation
- Described as “third house of the legislature”
- Making legislation instead of interpreting it
– Roe v Wade = right to privacy protected women’s rights over her own body - abortion rights
– Brown v Board of Education = desegregated schools
Appointment process
1) Vacancy
2) Pres searches for a nominee
3) Announcement
4) Confirmation process - Senate Judiciary Committee
5) Confirmation process - Senate debate and vote
1) Vacancy
- Must wait for one to occur
– Obama, Clinton + George W Bush = 2 appointments in 8 years
– William Henry Harrison, Zachary Taylor, Andrew Johnson, and Jimmy Carter didn’t make any
– Life tenure = Justice William Rehnquist appointed by Nixon in 1972 - served until death in 2005
– Justice Anthony Kennedy appointed by Reagan in 1988, retired 2018 (served 30 years)
2) Pres searches for a nominee
Advice from:
[I] Senior White House aides
[II] Top officials in Justice Department
[III] Key members of Congress of his own party
[IV] Professional groups (American Bar Association)
[V] Personal friends
- Most likely pool of recruitments from Court of Appeals
3) Announcement
- FBI background checks
- Pres personally interview 2/3
- Unofficially (accepted as tradition), ABA Standing Committee on Federal Judiciary —> well qualified, qualified, not qualified
– Only recent nominee to not gain well qualified = Clarence Thomas (1991)
4) Confirmation process - Senate Judiciary Committee
- Hearings held
- If goes badly may withdraw
– 2005 - Harriet Miers withdrew (Bush nomination)
5) Confirmation process - Senate debate + vote
- Committee votes on whether to recommend further action
– Defeat of Robert Bork - Judiciary Committee (1987) - prelude to defeat in Senate
– Committee voted 7-7 for Clarence Thomas - tricky on Senate (confirmed with margin of 4 votes)
– Senate - rejected 12 nominations since 1789. Most recent = Robert Bork (42-58) (1987)
– 10 nominations withdrawn by Pres - latest = Harriet Miers
– Senate took no action for 5 nominees - most recent = Merrick Garland (2016)
Criticisms of Confirmation process
1) Politicisation by Pres
- Choose justice whose ideology matches
- Most Conservative justices appointed by Reagan + George W Bush
- But George H W Bush’s nomination of David Souter (1990) was one of the most liberal court members
2) Politicisation by Senate
- Confirm people who share same ideology
– Robert Bork (conservative) - Liberal groups like National Abortion Rights League + National Organisation for Women
– 1991 - Senate didn’t focus on lack of qualifications for Clarence Thomas but his conservative ideology + sex. harassment allegations –> only 11 Dems voted for him, only 2 Reps voted against
– 2006 - Samuel Alito - $2m spent prepping him
– 2016 - Rep Congress refused to consider Garland
3) Politicisation by media
- Focus on allegations
– Edward Lazarus = sup. court nom become = “election campaigns for political control of the Court, to be waged by any means possible”
Judicial Review
Power of Sup Court to declare Acts of Congress, actions of the executive, or Acts or actions of state governments unconstitutional
– Marbury v Madison (1803) :
–> Judicial review
–> Establishes court as equal to Congress + Pres
–> Sup Court has final say over laws + actions
–> Sets precedent unelected judges can veto leg. passed by majorities
1810 - Sup Court first declared a state law unconstitutional in Fletcher v Peck
1973 - Roe v Wade
Different approaches:
- Strict constructionists = interpret const. in strict, literal fashion, favour state’s rights
– Justice Antonin Scalia = “A constitution is not meant to facilitate change. It is meant to impede change, to make change difficult”
(e.g. John Roberts + Clarence Thomas)
- Loose constructionists = more liberal, ‘living constitution’, federal govt > state
– Buckley v Valeo
– Ladue v Gilleo = Missouri ban on yard signs unconst.
– Harper v Virginia Board of Elections = Virginia’s poll tax unconst.
Representativeness of justices
– 5 male + 4 female
– 2 African American justices (Justices Thomas and Jackson)
– 1 Hispanic justice (Justice Sotomayor)
– Least 6 are Roman Catholics, 1 Jewish 1 Protestant.
– Historically, most justices have been Protestants
– First Catholic justice was Roger Taney in 1836, first Jewish = 1916 Louis Brandeis
– First African-American justice = Thurgood Marshall (1967)
– First female = Sandra Day O’Connor (1981)
– First Italian-American = Antonin Scalia (1986)
– Since confirmation of Amy Coney Barrett (2020) following death of Ruth Bader Ginsburg, the court has had 6 justices appointed by Republican Pres + 3 appointed by Dem Pres.
