Supreme Court Flashcards
Explain the origins of the Supreme Court
Explain the constitutional role of the 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)
Explain the independent nature of the Supreme Court
Life tenure in times of ‘good behaviour’ + 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
– Anthony Kennedy = 30 years
– William Rehnquist = 1972-2005
Salary which shall not be ‘diminished’ during time in office
– $265,000
– Chief Justice = $277,700 (2020)
Justices appointed, not elected
-Nom by Pres + approved by Senate - no single party can fill court with same ideology
- Don’t have to campaign, raise funds etc.
– Obama = Sonia Sotomayor, Elena Kagan
– Trump = Neil Gorsuch, Brett Kavanagh
– Bush HW = David Souter, Clarence Thomas
– Clinton = Ruth Bader Ginsburg, Stephen Breyer
–Truman = “when 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”
5) Separation of powers
- Check on each other - impeachment
(examples)
Explain the concept of judicial review
Explain the appointment and confirmation process
Explain criticisms of the appointment and confirmation process
Politicisation by President
- Ideology:
– Obama = Sonia Sotomayor, Elena Kagan
– Trump = Neil Gorsuch, Brett Kavanagh
– Bush HW = David Souter, Clarence Thomas
– Clinton = Ruth Bader Ginsburg, Stephen Breyer
– Even when Truman (Dem) appointed Harold Burton (Rep) to Court, he knew that governor of Ohio would replace Burton in the Senate with a Democrat
– Bush nominated Harriet Miers in October 2005 due to her closeness to him. ‘I know her heart, I know her character.’
– FDR tried to “pack” the Sup Court - Judicial Procedures Reform Bill of 1937— would allow Pres to appoint an additional justice for every sitting justice who was over 70 (add six of his own justices)
– Eisenhower appointed Liberal Earl Warren = apparently referred to him as “that dumb son of a bitch Earl Warren” –> Brown v Board of Education
– Truman: when you put a man on the Sup Court he ceases to be your friend - 2 noms
Politicisation by Media
- Focus less on qualifications and more on allegations, ideology etc to sell a story
– Confirmation hearings of Brett Kavanaugh (2018) - media focused on the sexual assault allegations
– When Amy Coney Barrett confirmed, New York Times ran 7 consecutive opinion pieces panicking about her ascension
– Published: Clarence Thomas’s undisclosed gifts from billionaire Rep donor Harlan Crow
– Samuel Alito = undisclosed luxury fishing trips with billionaire Rep donor Paul Singer, who later had cases before the Court
– Neil Gorsuch (2017) failed to disclose a property sale to a CEO whose law firm has argued at least 22 cases before the Court
- Focus on characteristics like age, gender, race etc.
– Sonia Sotomayor (2009) media = “wise Latina woman” + raised concerns about potential biases based on race or gender
Politicisation by Senate
– Defeat of Bork (1987) - Dem opponents on Senate Judiciary Committee groups against him. Television campaign against him (by People For the American Way)
– Senate focused on philosophy and allegations of sexual harassment for Clarence Thomas instead of lack of qualifications. Vote was almost entirely along party lines
– Senate Confirmation vote:
– Sonia Sotomayor = 9-31 (reps) 59-0 (dems)
– Brett Kavanaugh = 9-0 (reps) 1-48 (dems)
– Amy Coney Barrett = 52-1 (reps), 0-47 (dems)
Explain how the Supreme Court has become politicised by the Senate
Senate Judiciary Committee
– Senate focused on philosophy and allegations of sexual harassment for Clarence Thomas instead of lack of qualifications. Vote was almost entirely along party lines
– Brett Kavanaugh (2018): Confirmation hearings for Brett Kavanaugh, Senate Judiciary Committee divided - became politicized when accused of sexual assault
– Trump nominated Amy Coney Barrett (2020) - Rep Senate quickly held confirmation hearings + confirmed her before the election - Dems argued should have waited until after election
Confirmation vote
- Partisan
– Senate Confirmation vote:
– Sonia Sotomayor = 9-31 (reps) 59-0 (dems)
– Brett Kavanaugh = 9-0 (reps) 1-48 (dems)
– Amy Coney Barrett = 52-1 (reps), 0-47 (dems)
Blocking appointments
– Defeat of Bork (1987) - Dem opponents on Senate Judiciary Committee groups against him. Television campaign against him (by People For the American Way)
– 11/37 unsuccessful nominations blocked by Senate
– Presidents Cleveland + Nixon each had 2 nominees rejected (the most)
- Can also not take action: Merrick Garland (2016)
Explain how the Supreme Court has become politicised by the President
Ideology (appointments)
– Obama = SS + Elena Kagan
– George HW Bush = Clarence Thomas
– Clinton = RBG + Stephen Breyer
– Trump = Neil Gorsuch + BK
– Even when Truman (Dem) appointed Rep Harold Burton, he knew the Governor of Ohio would replace him with a Dem in Senate
Political decisions
- Cases involving the Pres
– Bush v Gore
– Biden v Nebraska
– Sup Court will have to rule whether Trump can take part in the next Pres Election
– Ronald Dworkin
Criticising
– Obama openly criticised Sup Court in State of Union address (2010) - Justice Alito saying “Not true” - retaliated by blocking Sup Court noms, immigration reform + National Labour Relations Board v Noel Canning
– Eisenhower = “dumb son of a bitch Earl Warren”
– Truman = when you put a man on the Sup Court he ceases to be your friend”
– Biden - Roe v Wade was a “fundamental right” that had been “ripped away”
Explain how the Supreme Court has become politicised by the Media
Narrative
- Focus less on qualifications and more on allegations, ideology etc to sell a story
– Confirmation hearings of Brett Kavanaugh (2018) - media focused on the sexual assault allegations
– When Amy Coney Barrett confirmed, New York Times ran 7 consecutive opinion pieces panicking about her ascension
– Published: Clarence Thomas’s undisclosed gifts from billionaire Rep donor Harlan Crow
– Samuel Alito = undisclosed luxury fishing trips with billionaire Rep donor Paul Singer, who later had cases before the Court
– Neil Gorsuch (2017) failed to disclose a property sale to a CEO whose law firm has argued at least 22 cases before the Court
Focus on characteristics
- Age, gender, race etc.
– Sonia Sotomayor (2009) media = “wise Latina woman” + raised concerns about potential biases based on race or gender
Amplifying political rhetoric
- Amplify political rhetoric surrounding SCOTUS nominations - further polarize public opinion
- May focus on politicians, interest groups, or activists who are engaged in partisan battles over the nominee
– Judge Laurence Silberman (CoA) = “Nearly all television network and cable is a Democratic Party trumpet,” + “media seeks ‘to titillate rather than to educate and inform.’”
– Economist wrote that Justice Scalia said: “saying or implying” the court is becoming illegitimate “crosses an important line”
–Eisenhower: “dumb son of a bitch Earl Warren”
– Truman = “when you put a man on the Sup Court he ceases to be your friend”
– Biden = Roe v Wade was a “fundamental right” that had been “ripped away”
Explain the strict constructionist approach to legal reasoning
Judicial restraint
– Rehnquist Court often described as a restraint court (Planned Parenthood v Casey, upheld right to an abortion, continuing the decision of the Warren Court
– Acceptance of racial segregation upheld in Plessy v. Ferguson
– Dred Scott v. Sandford = upheld lack of citizenship for African-Americans
– LLC v Russo = Roberts struck down a Louisiana law that would have limited abortions, as he argued that it went against the precedent in Whole Woman’s Health v Hellerstedt
Lack of change/progress
– Korematsu v. U.S. (1944) = prosecuted for remaining in California after a 1942 presidential order required the relocation of most Japanese Americans from California to detention camps
– United States v. Stanley = ruled Congress couldn’t outlaw racial discrimination
– U.S. v Lopez (argued Commerce Clause shouldn’t be expanded beyond its original meaning)
Upholding the Constitution
- Believe in concept of originalism = should be interpreted as the framers of the document interpreted it during the 18th C
- Take wording of Const to the letter
– Interp of 1st Amendment by Associate Justice Hugo Black. Black followed this approach that “Congress shall make no law…”, therefore if Congress made a law which even looked as if it infringed upon the 1st Amendment, it should be struck down, with no further discussion
– “The worst thing about the ‘living Constitution,’” he said, “is that it will destroy the Constitution” - Justice Antonin Scalia
– “A constitution is not meant to facilitate change, it is meant to impede it” = Justice Antonin Scalia
Explain the loose constructionist approach to legal reasoning
Living document
- Adapt with society
- Not strict with wording
– Roe v Wade
– Brown v Board of Education
– McCulloch v. Maryland = implied powers derived from “Necessary and Proper” Clause gave Congress the power to establish a national bank
Progress - rights
– Gaines v Canada = separate but equal had to actually be equal
– Swann v Charlotte Mecklenburg Board of Education = bussing
– Eisenstadt v. Baird = extended right to privacy for unmarried women to receive contraceptives
Liberal justices?
– Sonia Sotomayor
– Elena Kagan
– Ruth Bader Ginsburg
– Earl Warren
– Anthony Kennedy
– Stephen Breyer
Explain what is meant by judicial activism
Progress - rights
– Roe v Wade
– Brown v Board of Education
– Gaines v Canada
– Swann v Charlotte Mecklenburg Board of Education
– Eisenstadt v Baird
Liberal justices?
e.g….
Quasi-legislative powers
- Idea of judicial supremacy (Sup Court has the final say about what the Constitution allows)
– “We are under a Constitution, but the Constitution is what the judges say it is.” Charles Evans Hughes 1928
– Marbury v Madison = its the “duty of the Judicial Department to say what the law is.”
– Brown v Board of Education (1954)
– Citizens United v FEC = ban on businesses using funds for pol. advertising unconst.
– Harper v. Virginia State Board of Elections = Virginia’s poll tax unconst.
Explain what is meant by judicial restraint
Lack of progress - rights
– Korematsu v. U.S. (1944) = prosecuted for remaining in California after a 1942 presidential order required the relocation of most Japanese Americans from California to detention camps
– United States v. Stanley = ruled Congress couldn’t outlaw racial discrimination
Strict Constructionists / Conservatives
– U.S. v Lopez (argued Commerce Clause shouldn’t be expanded beyond its original meaning)
– Scalia - “const not meant to facilitate change, meant to impede it”
– “The worst thing about the ‘living Constitution,’” he said, “is that it will destroy the Constitution” - Justice Antonin Scalia
Stick to previous decisions
= courts should avoid delivering decisions that change the meaning of a current law or government statue unless there is a clear violation of the Constitution
– Rehnquist Court often described as a restraint court (Planned Parenthood v Casey, upheld right to an abortion, continuing the decision of the Warren Court
– Acceptance of racial segregation upheld in Plessy v. Ferguson
– Dred Scott v. Sandford = upheld lack of citizenship for African-Americans
– LLC v Russo = Roberts struck down a Louisiana law that would have limited abortions, as he argued that it went against the precedent in Whole Woman’s Health v Hellerstedt
Explain the impact of Marbury v Madison (1803)
Judicial review
– Loving v Virginia = laws banning inter-racial marriage uncont.
– Buckley v Valeo
– Citizens Unted v FEC
– Clinton v City of New York
– Nixon v US
Equal branch
- Solidified role as an independent and co-equal branch
- Highlighted the importance of an impartial judiciary in interpreting Const.
- Emphasized the judiciary’s responsibility to protect individual rights and ensure the separation of powers
– Brown v Board of Education
– Roe v Wade
– Obergefell v. Hodges - protected same-sex marriage
– Planned Parenthood v Casey = upheld right to abortion
– Gideon v Wainwright = legal rep
– Miranda v Arizona = ‘Miranda rights’ - right to remain silent
Judicial supremacy
– Marbury v Madison = its the “duty of the Judicial Department to say what the law is.”
– “We are under a Constitution, but the Constitution is what the judges say it is.” Charles Evans Hughes
Explain the impact of McCulloch v Maryland (1819)
