supreme court Flashcards
what is judicial review
power to scrutinise the actions of other branches of government - if SC decides to a law or action is unconstitutional it can be set aside by SC. in executing the JR the SC has to interpret the constitution
what is judicial independence/original jurisdiction
founding father wanted to create courts that would be independent of political pressure. judges are appointed, not elected, and are permanent
what is due process/ appellate jurisdiction
due process means that law must be upheld, trials must be fair and politicians must follow procedures of law so that justice is done ie. government power must be limited, all laws fair and reaosnable
what political areas has the SC had a impact on
civil rights, abortion, positive discrimination and very political cases such as US vs Nixon and more recently Bush vs Gore
Powers of the SC
Judicial review - because of the power of JR it is argues that judges can in a sense make policy, Warren himself admitted that the SC ‘makes law’ when it interprets the Constitution. Some commentators have criticised the undemocratic nature of the court in what is often described as the most democratic country in the world
examples of power of the SC
- Marbury vs Madison 1803 - can declare the act of congress unconstitutional
- BRown vs Board 1954 - racial segregation end
- McCulloch vs Maryland 1819 - boosted federal government over state government
limitations of the SC
- constitutional limitations - the constitution gives congress the power to alter the number of judges on the SC (Roosevelt attempted to add 6 more in 1937). Constitution can be amended to overturn a SC decision
- internal limitations - as a judicial institution it cannot initiate cases, it can only deal cases brought before it. No power to enforce its decision (no police or army) eg took over 20 years and much executive pressure to enforce brown vs board. room for interpretation of constitution is often limited. congress has power to remove judges. SC rarely goes against prevailing public and political opinion. congress can modify laws
key features of the appointment procedure
- must be a vacancy when someone either retires, is impeached or dies
- President selects nominee
- Nominee appears before Senate Judiciary Committee . pressure groups will send millions to campaign for or against a candidate
- appointed for life
how many nominees have the senate rejected
over 30
how are the appointments political?
- presidents tend to appoint allies to gain political advantage. SC judges often politicians before becoming judges
- nominees have to be ratified by the senate and often refused on political grounds. Bork rejected for being too conservative in 1987. not all have been controversial
factors needed to be considered when appointing judges
- opportunity - can only be made if there is a vacancy
- american bar association - the association is consulted on almost every federal judicial appointment.
- balance - as an unelected body it is important for the court’s legitimacy that is the representative of america
- geography - tried their best to ensure all regions of the US have been represented in the SC
- pressure groups -
- senators meet nominees to discuss any issues or concerns they may have and get nominees to explain their approach to making judgements
to what extent do supreme court justices reflect the political view of their presidents
- supreme court justices are not politically neutral, some were active in party politics prior to their nomination and others have served in presidential administration
- those who have served as judges before their nomination usually have a track record that identifies them as conservative or liberal
- presidents nominate justices who are known to hold their own views. Bush nominating Alito and roberts as conservatives
- SC will only sometimes only partly reflect the views of their nominator. Ideology is one of a number of factors taken into account. Unlikely to share identical views on every issue as their nominator. once they are in court they are free agents and may leave their pre-confirmation reputation behind
what makes SC a political institution?
- Judicial review means it is inevitable that that it will get involved in politics eg. Brown vs Board. Decisions can have a profound impact on US politics and society. SC has taken on many powers founding father reserved for other branches of government. SC is part of checks and balances. SC has expanded and restricted role of government
- Appointment procedure is political as president selects those who are sympathetic
- interest groups bring cases to SC
- judgement process is political in itself when decisions are made
- constitution often too vague
what makes the SC a judicial institution
- political powers should not be overestimated, it is only a court after all, they are ultimately constrained by the limitations.
Rumsfield v Forum for Academic and institutional rights in 05/06. court set aside personal views. the court ruled that universities could lose all federal funding if they refused to allow military recruiters on campus on the grounds that gay men and women were banned form joining
what is judicial activism?
refers to the judges making public policy through their judgements, rather than adhering strictly to precedent and letting the elected branches amend policy as appropriate
