Supreme Court.

Question 1

What is the Supreme Court?

Answer 1

The Supreme Court is outlined in Article III of the US Constitution. Judicial review is often cited as one of the principles of the Constitution. While this is commonly accepted, it was not until later cases that the Supreme Court actually took this power, meaning its role as constitutionally stated is in fact very limited.

Question 2

What does Article III state?

Answer 2

• Judicial power is vested in the Supreme Court.
• Congress can establish courts.
• Justices have life tenure in times of good behaviour and their salary is protected.
• The Supreme Court is an appellate court.

Question 3

How is the independence of the Supreme Court guaranteed?

Answer 3

The independence of the Supreme Court is guaranteed constitutionally and through other processes surrounding the court.

Question 4

How is it constitutionally guaranteed?

Answer 4

• Life tenure in terms of good behaviour.
• A salary which shall not be diminshed during their time in office.
• Justices are appointed not elected.
• Separation of powers means the Supreme Court has its own power outlined within the Constitution which ensures its sovereignty.

Question 5

What is the judicial review process?

Answer 5

Judicial review is more widely accepted, understood and powerful than it is in the UK. As the Supreme Court is reviewing the constitutionality of an issue, its decisions are effectively sovereign.

Question 6

What two cases does the Supreme Court use to take its power?

Answer 6

• Marbury vs Madison.

- Fletcher v Peck.

Question 7

What is the appointment process for the Supreme Court?

Answer 7

Vacancy: Occurs through death, retirement.

Search and nomination: Looking for a justice who is well qualified and suits a president’s wishes.

ABA rating: The ABA will review and rate a candidate ‘not qualified’, qualified’ or ‘well qualified’.

Hearings and vote: A committee of 20 senators who spend days interviewing candidates as to their suitability after which a recommendatory vote is taken.

Full senate vote: As the Constitution requires the ‘advice and consent’ of Senate, the full Senate votes on a nominee.

Question 8

What are the strengths and weaknesses of the process?

Answer 8

Weaknesses:

• The process has become party political.
• The president has politicised the nomination.
• The Senate Judiciary committee hearings have become a show.
• The role of the media undermines the process.
• Expectations of replacing vacancies with like-for-like candidates undermine the ability to pick the best candidate for the job.

Strengths:

• The lengthy and rigorous process ensures that candidates are legally qualified and capable of holding this position.
• The role of elected officials in the process lends legitimacy to a branch which is otherwise unelected and therefore unaccountable and yet wields considerable power.

Question 9

What are the factors influencing the president’s choice of nominee?

Answer 9

• Ideology.
• Personal characteristics.
• Experience.
• The outgoing justice.

Question 10

What is the current composition and ideological balance of the Supreme Court?

Answer 10

The current court retains the balance it has had for a number of decades - that is roughly, four liberals, four conservatives and one swing justice.

Question 11

What do loose constructionist and strict constructionist mean?

Answer 11

Loose construction is a legal philosophy that favours a broad interpretation of a document’s language. The term is often used to contrast with strict construction’ aa philosophy that favours looking solely at the written text of the law.

Question 12

What are examples of some cases that have had an impact on public policy?

Answer 12

Snyder v Phelps: Affirmed the extent of ‘free speech’ as protected by the 1st Amendment.

King v Burwell: Upheld Obamacare again, allowing for its continuance.

Citizens United v FEC: Struck down some campaign finance limits as not compatible with the 1st Amendment.

Whole Woman’s health v Hellerstedt: Prevented Texas placing limits on abortion services for women.

McDonald v Chicago: Allowed for the possession of handguns, overruling a citywide ban.

Fisher v University of Texas: Allowed for the use of a racially-conscious admissions programme to the university.

Question 13

What are judicial activism and restraint?

Answer 13

Judicial activism: An approach to judicial decision making that holds that a justice should use his or her position to promote a desirable social end.

Judicial restraint: An approach to judicial decision making that holds that a justice should defer to the executive and legislative branches, which are politically accountable to the people and should put great stress on the established in previous court decisions.

Question 14

What are the criticisms of both?

Answer 14

Judicial activism:

• The Supreme Court is therefore unelected and therefore unaccountable.
• It goes against the theory of separation of powers.
• It can overrule the important principle of stare decisis.
• There are limited checks on the Supreme Court to balance this power.
• It undermines the Court’s neuttrality and independence.

Criticisms of judicial restraint:

• Deference by the Supreme Court can lead to breaches of the Constitution going unchecked.
• Congress and the president often avoid the most controversial topics.
• Without interpretation, the Constitution could become outdated and irrevelant.
• The role of the Supreme Court is outlined in the Constitution and therefore it needs to act to uphold this.
• Rights apply to all, not just the majority, yet the elected branches will focus on the latter.

Question 15

How are constitutional rights protected?

Answer 15

Constitutional rights are protected by the Constitution, by the bill of Rights by subsequent constitutional amendments and by rulings of the Supreme Court.

Question 16

What are key constitutional rights and how are they protected?

Answer 16

1st Amendment: Free Speech: Texas vs Johnson.

2nd Amendment: Right to bear arms: Chicago v MacDonald.

5th-7th Amendments: Guarantee of trial: Miranda v Arizona.

8th Amendment: No cruel and unusual amendments: Kennedy v Louisiana.

13th-15th Amendments: Civil war amendments abolishing slavery: Roe vs Wade.

19th - 26th Amendments: Right to vote for women and those aged over 18.

Question 17

How effective are the protection of rights by the Supreme Court?

Answer 17

The effectiveness of the protection of rights by the Supreme Court is always debatable. For example, while Snyder v Phelps upheld the right to free speech of the Westboro Baptist Church, it is arguably diminshed the right to privacy of the Phelps family. Equally, that the Supreme Court has ruled does not always mean that states or even the federal government will always adhere to this ruling. In the Hamdt v Rumsfeld ruling of 2005, the federal government only conceded limited changes to Guantanamo Bay following its loss in this case.

Question 18

What does the US declaration of independence state?

Answer 18

The US declaration of independence proudly stated that all men are equal.

Question 19

What is affirmative action?

Answer 19

A policy of favouring historically disadvantaged members of a community.

Question 20

What are the arguments that the Court is judicial in nature?

Answer 20

• All rulings are made with reference to the US Constitution, not personal opinion.
• Justices are expected to have legal and/or judicial experience.
• The court has no enforcement power, and so relies on being seen as judicial for its rulings to be accepted.
• Only around a third of cases are decided 5-4, suggresting a good deal of legal agreement.
• There are plenty of examples where a justice has not ruled as expected from their labelled ideology.
• The Court applies legal principles such as stare decisis.

Question 21

What are the arguments that the Court is political in nature?

Answer 21

• Rulings have a political impact, affecting the laws from elected branches.
• Justices are appointed through an entirely political process.
• Justices are identified as liberal or conservative suggesting an ideological leaning.
• The Court accepts amicius curiae briefings from politically interested groups.
• It can seem that the Court will choose to hear cases or not based on the political climate and public opinion.
• Some cases are about politics directly.

Question 22

What is a living constitution?

Answer 22

The idea that the Constitution is an evolutionary document that can change over time through reinterpretation by the Supreme Court.

Question 23

What are the arguments that the Constitution should be living?

Answer 23

• Without interpretation, the document will become irrevelant in the modern world.
• If the Supreme Court does not interpret the document, politically biased elected branches will: this could disadvantage minorities.
• The Constitution provides underlying principles for the USA; for these to be upheld in a changing world, it needs to be interpreted.
• If the Founding Fathers wanted to prevent the interpretation of the document, they would have been more specific.

Question 24

What are the arguments that the Constitution should be original?

Answer 24

• The Constitution includes an amendment process to allow for its evolution as needed.
• If the Constitution can be changed by nine unelected justices, there is no accountability either to the people or elected branches.
• The Supreme Court’s power comes from a court case of its own, not the Constitution, therefore it does not have the right to change the Constitution.
• A flexible constitution can be deliberately misinterpreted or used for political ends, rather than provide the protections intended by the Founding Fathers.

Question 25

What is the effectiveness of rights protection?

Answer 25

Some civil and constitutional rights have been routintely upheld by the Supreme Court.

Question 26

How can the power of the Supreme Court be questioned?

Answer 26

• It has no power of initiation.
• It has no power of enforcement.
• It can have its rulings overturned.
• It does seem to be responsive to the public and elected branches in some areas.

Question 27

What claims are there that the Supreme Court is an ‘imperial judiciary’?

Answer 27

• The Supreme Court’s word is invariably final - there has only ever been one constitutional amendment used to overturn one of its rulings; in addition, the amendment process is hugely difficult.
• While it cannot bring cases, it does choose from 8,000 each year, giving it huge power over those it hears and those it chooses not to, especially as it is likely to pick the cases of greatest significance.
• It has and can overrule the elected branches of government, including the states Obergefell v Hodges, for example, legalised gay marriage even in states where a majority of the electorate were against it.
• It has even effectively denied the president - in Bush v Gore, by denying the recount, the Court effectively gave the election to Bush.
• The Supreme Court acts without accountability as justices are appointed for life.
• It has effectively created new rights not outlined in the Constitution.

Question 28

What are the successes and failures of affirmative action?

Answer 28

Sucesses:

• Obama’s original DACA of 2012 still remains.
• Affirmative action has been upheld in limited forms through Supreme Court cases.
• The representation of minorities in Congress continues to improve.
• Arizona’s SB1070 was largely struck down by the Supreme Court.

Failures:

• DAPA and expanded DACA was struck down in US v Texas.
• The gang of eight failed to get the comprehensive immigration reform bill through the House of Representatives.
• High-profile shootings have raised the failures of racial inequality into the national spotlight.