Supreme Court - Saunders Flashcards
Supreme Court nominations
1- us district court (most cases start here)
2- us court of appeals (circuit) (once decided they can appeal here)
3- us supreme court (if questions involving federal govt are raised)
Membership of the Supreme Court
-9 members - one chief justice and 8 associates
-once appointed and confirmed they hold office for life during goof behaviour
-can only be removed through impeachment
Strict constructionist
They interpret the constitution strictly or literally and stress the retention of power by individual states (republican)
Originalist
Tend to interpret the constitution in line with the meaning or intent of the framer at the time of enactment (republican)
Loose constructionist
Interpret the constitution less literally and tend to stress the broad grants of power to the federal govt (liberal/dems)
Living constitutionalists
Where the constitution is considered as a dynamic living document interpretation of which should take account the views of todays society
Appointment and confirmation process
The vacancy - most wait for a vacancy to occur roughly one every two years (Carter made none) Supreme Court justices typically outlive presidents
The search and pools of recruitment- president may ask his advisor for possible nominees. Democrats are known to seek advice from the American Bar Association. Most likely pool is the federal Court of Appeal (all but one Elena Kagan)
The announcement- once a shortlist is drawn up the FBI checks are conducted the president interviews 2/3 of finalists. When decided the president will make a formal announcement which is a big formal event attended by key members of Congress. Then follows ABA rating - there are three: ‘well qualified’ ‘qualified’ ‘not qualified’ (only nominee in recent years to get qualified was Clarence Thomas)
Confirmation process- move to Capitol Hill the nominee first has to appear before the Senate Judiciary Commissio Hearings are held with both nominees supporters and critics. If the hearing goes badly they may withdraw or president calls whole due to possible defeat on the Senate floor (October 2015 bushes nominee Harriet miers withdrew after conservative republican senators were unconvinced of her ideological credentials- came from hostility of presidents own party members.)
Once the hearing is concluded the committee votes on whether or not to recommend further action(not a decisive vote) however the committee vote is a clear pointer to the likely outcome. If the Senate Judiciary Commission votes unanimously or overwhelmingly in favour of a nominee it is nearly certain to be confirmed.
A simple majority is required for confirmation
Successful appointments
Neil Gorsuch (Donald Trump 2017)
Endorsed by the federalist society
A bomb as nominee of Merrick Garland was not considered in Senate
‘nuclear option’ applied by Senate removing filibuster
Approved by vo 54- 45, largely partisan
Sonia Sotomayor (Barack Obama 2000)
1st Hispanic judge to sit on the Supreme Court bench
Questioned about comments that Latina woman could make a better decision than a white male in earlier speeches
Approved by vote of 68-31
Third woman to sit on the bench
Rejected nominations
Robert bork (rReagan 1987
Very right wing nominated to replace a moderate
Wanted to rollback civil rights decisions made by previous courts
Nomination opposed by civil rights groups (ACLU)
TV ads attacked him as an extremist
Indicated he may have wanted to reverse Roe V wade
Rejected by vote of 42 to 58
Clement haynesworth (Nixon 1969)
Right wing nominated to replace liberal
Opposed by Democrats liberal Republicans and NAAC
Allegedly favoured segregation and anti labour
Rejected by vote 55 to 45
Criticisms of appointments
Presidents tend to politicise nominations by attempting to choose justices who share their political views and judicial philosophy
Senate tends to politicise the process by focusing on issues like abortion instead of qualifications or job suitability
Members of the president’s party asked soft questions in committees
Members of opposition attack and embarrassed the nominee- advise and consent is now search and destroy
Justices are confirmed on party line vote
Media feeding frenzy which is unrelated to relevant qualifications
Judicial review
The power of the Supreme Court to declare acts of congress, actions of the executive or actions of state govt unconstitutional and thereby null and void
Example of judicial review
George W Bush vs Albert gore junior 2000
- Five weeks after the election they ruled that the manual recount scheme devised by the Florida State Supreme Court was unconstitutional because it violated the equal protection clause of the 14th amendment
What is the equal protection clause
Clause requiring states to guarantee equal rights and protection to all citizens
What is judicial activism
An approach to judicial decision making which holds that judges should use their position to promote desirable social ends
Examples of judicial activism
- Brown V Board of Education of of Topeka (outlawed racial segregation in schools)
- Roe V wade (declaring a woman’s right to an abortion to be a constitutionally protected right)
- Bush V gore (effectively handing the presidency to Bush)
Judicial activists see the core as an equal partner with the legislative and executive branches critics say that justices are ‘legislating from the bench’ however this may be flawed as people too often labelled decisions that they disagree with judicial activism- they’re often disagreeing on political grounds which makes the opposition ideological
Judicial restraint
An approach to judicial decision making which holds that judges should defer to the legislative and executive branches and to the precedents established in previous court decisions
The court exhibiting ‘judicial restraint’ puts a good deal of importance in what is called state decisis (legal principle that judges should look at the past precedence as a guide wherever possible) more inclined to leave things the way they are
Zelma v Simmons case study (religion)
Upheld a programme in Ohio giving financial aid to parents to allow to send their children to religious or private schools – 5-4 decision (liberals said breach of separation between church and state)
District of Columbia v Heller case study (guns)
The court declared unconstitutional- at law passed by the District of Columbia in 1976 burning the ownership of handguns and requiring that shotguns and rifles are kept unloaded and trigger locked
Mccutcheon v Federal election commission case study (freedom of speech)
Struck down a 1970s limit on the total amount of money wealth donors can contribute to candidates or political committees. The Chief Justice wrote ‘there is no right more basic in our democracy than the right participate in electing our political leaders’. It was joined by over conservative judges and Anthony Kennedy - Thomas said they should have gone further and strike down all contribution limits
Ring v Arizona case study (8th amendment death penalty)
They declared death sentence is imposed by judges rather than juries were unconstitutional o citing the 6th amendment (right to a jury trial)
Roper v Simmons case study (dealth penalty)
Cannot be sentenced to death for a crime committed under 18y/o
Baze v Rees case study (dealth penalty)
Ruled that the lethal injection did not constitute ‘cruel and unusual punishment’ this was reiterated in 2015 has 88% of death penalties since 1976 have been by lethal injection therefore ruling it unconstitutional would effectively outlaw it
Atkins v Virginia case study (death penalty)
Declared the execution of ‘mentally retarded criminals’ unconstitutional but did not say what was constituted ‘mentally retarded’. Some states therefore passed an IQ test score which a criminal would fall into a category of intelligence
Hall v Florida case study
The IQ test rigid line was found unconstitutional- Freddy hall had been on death row for 30 years for raping and killing a 21 year old pregnant girl in 1978. He argued that the rigid IQ test score line 70 and below were arbitrary and therefore breached his constitutional rights under the 8th amendment. He took several tests and scored between 71 and 80.
