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US Politics - The Supreme Court > Text Book - Supreme Court > Flashcards

Text Book - Supreme Court Flashcards

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1
Q

Judicial review

A
  • the ability of the Court to examine actions of the executive or legislative branches, and if so chooses, declare them unconstitutional
  • the court can strike down anything which it judges to be unconstitutional
  • controversial because judicial review is not explicitly granted on the constitution, but was awarded to the court in a case heard in 1803, Marbury v Madison
  • the judgement of whether the constitution has been contravened must belong with the judiciary
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2
Q

how is judicial independence upheld?

A
  • the separation of powers - the judicial function is the exclusive power of the judicial branch
  • the appointment of justices, not elected
  • lifetime tenure of justices, who are only removable through impeachment
  • justices’ pay cannot be reduced during their period in office: chief justice earns $223,500
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3
Q

liberal v conservatives in recent court development

A
  • there has been increased polarisation in the court’s decision-making with Justice Kennedy often being the swing vote
  • in 2012-13 term 29% of cases were decided in a 5-4 vote
  • after the second world war the court increasingly took on cases concerning civil rights and issues such as abortion and capital punishment
  • Brown v Topeka Board of Education (1954) led to the desegregation of schools
  • Roe v Wade created a constitutional right for a woman to obtain an abortion
  • conservatives saw these decisions as the court misreading the constitution to create rights that were never intended by the framers

More examples where cases were sharply divided:

  1. Windsor v. United States
  2. Shelby County v. Holder
  3. Gonzales v. Carhart
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4
Q

list the current nine justices

A
  • John Roberts (Chief) - Conservative
  • Antonin Scalia - Conservative
  • Clarence Thomas - Conservative
  • Samuel Alito - Conservative
  • Anthony Kennedy - Moderate
  • Elena Kagan - Liberal
  • Sonia Sotomayor - Liberal
  • Stephen Breyer - Liberal
  • Ruth Ginsburg - Liberal
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5
Q

Selecting Justices

A
  • number has been fixed at nine since the 1860s
  • it is hugely politically significant for a president to nominate a supreme court justice
  • judges are life-tenured (there has only ever been one impeachment of a justice - Samuel Chase in 1805)
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6
Q

factors that influence the president’s choice:

judicial philosophy

A
  • the president will naturally wish to appoint someone who shares his judicial philosophy as seen in Obama’s appointment of Justice Kagan
  • because of justices’ life-tenure they will continue the legacy of the president who nominated them e.g. Justices Scalia and Kennedy both continue to rule on cases almost a quarter of a century after President Reagan - who nominated them - left office
  • Conservative presidents will generally appoint Justices who are strict constructionists
  • Liberals will tend to appoint loose constructionists
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7
Q

Justice most commonly associated with strict constructionism:

A
  • Antonin Scalia

- he argued that “the constitution is not a living document. It is dead, dead, dead”

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8
Q

Justice most commonly associated with loose constructionism:

A
  • Stephen Breyer
  • in 2005 wrote a book called ‘active liberty’
  • sees the constitution as a guide for the application of basic American principles to a living and changing society rather than an arsenal of rigid legal means for binding and restricting it
  • he believes judges should place more emphasis on the consequences of legal decisions and less on literal readings of the law
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9
Q

example of justices not always voting on a liberal/conservative bloc:

A
  • Justice Scalia refused to join the part os Justice Alito’s opinion in the case of Zedner v. United States (2006) which referred to legislative history; as a strict textualist, Scalia did not believe that this should be taken into account
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10
Q

example of justices diverging from their political philosophy on particular issues

A
  • Justice Alito, a judge with a strongly conservative record, differed from his fellow justices in the case of Synder v. Phelps by arguing for the restrictions of First Amendment rights
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11
Q

example of justices evolving their positions

A
  • chief Justice Roberts amazed observers by voting to uphold Obamacare in the case of NFIB v. Sebelius
  • Justice Kennedy - the court’s centrist - was appointed by President Reagan and believed to be more conservative than his subsequent voting history would suggest
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12
Q

Synder V Phelps

A
  • 2011
  • Albert Synder, the father of a soldier killed in Iraq, sued the radical Westboro Baptist Church over their picketing of soldier’s funerals
  • 8-1 ruling found that Westboro had a right to protest under the First Amendment, with Chief Justice Roberts writing that the church ‘is entitled to special protection under the First Amendment
  • public opinion was largely in favour of Synder
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13
Q

Judicial Review in Action:

US v. Nixon

A

in brief: 8-0 decision against Nixon’s assertion of executive privilege in regards to the Watergate scandal. This led to his resignation

  • asked Nixon to hand over tapes of Oval Office following allegations that the president has been involved in a cover-up in relation to the break-in at the Democratic National Committee
  • Nixon refused and asserted executive privileges to withhold the tapes
  • the Supreme Court in an 8-0 decision ruled that executive privilege applied only to matters of defence and national security and that he therefore had to hand over the tapes
  • this led to president’s resignation
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14
Q

Judicial Review in Action:

National Federation of Independent Business v. Sebelius

A

in brief: 5-4 ruling in favour of Obamacare

  • the Court upheld the vast majority of President Obama’s signature healthcare reform policy, the Affordable Care Act (Obamacare) which was passed in Congress in 2010
  • 5-4 ruling (Roberts siding with the administration)
  • republicans were unanimously opposed to the law and were furious
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15
Q

Judicial Review in Action:

United States v. Virginia

A

in brief: 7-1 vote putting an end to the all-male VMI college in Lexington

  • the Virginia Military Institute was America’s last surviving all-male public university
  • the Supreme Court brought this to an end in a 7-1 vote that agreed that the exclusion of women from VMI violated the 14th Amendment right to equal protection
  • the first female cadets enrolled in 1997
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16
Q

Judicial Review in Action:

Lawrence v. Texas

A
  • 2003
  • this case struck down sodomy laws in Texas making same-sex sexual activity legal in all US states
  • the intimate consensual sexual conduct was part of the liberty protected by the 14th amendment
  • it overturned the 1986 ruling in Bowers v. Hardwick
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17
Q

Judicial Review in Action:

Boyscouts of America v. Dale

A

in brief: Supreme Court upheld Boy Scouts of America’s right to freedom of association, as guaranteed in the 1st Amendment, in banning homosexuality in the organisation

  • Supreme Court ruled that private organisations like the Boy Scouts of America, which opposed homosexuality, were allowed to exclude a person from membership when their presence would affect the organisation’s viewpoint
  • the Court upheld the organisation’s protected right to freedom of association as guaranteed in the 1st Amendment
  • case was brought from Scoutmaster James Dale who has been dismissed from the organisation after revealing his homosexuality
  • (members of the organisation voted in 2013 to overturn the prohibition on openly-gay youth from joining)
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18
Q

factors that influence the president’s choice:

Representation of different groups

A
  • the court needs to be representative of America to maintain its legitimacy
  • the president may want to send a signal of support to particular groups
  • both can be seen in president Obama’s nomination to the court of Sonia Sotomayor; Latinos had been an important element of his coalition in 2008, and her appointment also recognised the increasing significance of the Latino population, which has not until then been represented in the court
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19
Q

increased politicisation:

impact of Samuel Alito’s appointment

A
  • after Justice Sandra Day O’Connor died in 2005, Samuel Alito was appointed
  • subsequently, the court shifted its position on partial-birth abortion in the cases of Stenberg v. Carhart (2000) and Gonzales v. Carhart (2007)
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20
Q

increased politicisation:

1) appointment of Sonia Sotomayor and Elena Kagan
2) appointment of John Roberts
3) retirement of Ginsburg

A

1) - Sotomayor and Kagan appointed by Obama
- faced significant Republican opposition

2) - John Robert faced opposition from 22 Democrat senators
3) - the most recent partisan issue has been the clamour of liberals for Ginsburg, the 80-year old, to retire before Obama leaves office especially as the Democrats have lost control of the Senate. This is so Obama can appoint a like-minded successor

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21
Q

Judicial activism

A
  • the Black Law’s Dictionary defined judicial activism as a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions
  • usually judicial activism is associated with a willingness to strike down laws as unconstitutional, to overturn judicial precedent and rule against a preferred interpretation
22
Q

example of Judicial activism

A
  • Scalia support a judicial decision which contradicted his perceived conservatism in the case of Texas v. Johnson (1989)
  • he voted with the majority 5-4 ruling which turned down the prohibitions on American flag burning under the terms of First Amendment (right to free speech)
  • he overturned a prior ruling in the Gonzales v. Carhart and struck down acts of Congress such as the BCRA and the Voting Rights Act
  • it is almost impossible for judges to separate their personal philosophy from their judicial interpretation
  • Ted Olsen once said: “most people use the term ‘judicial activism’ to explain decisions that they don’t like’
23
Q

Judicial restraint

A
  • an approach to decision-making which holds that a judge should defer to the legislative branches, which are politically accountable to voters, and should put great stress on precedent established in previous Court decisions
  • Scalia is often described as the leading advocate of judicial restraint: “if you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach”
24
Q

examples of individual judges displaying judicial restraint:

A
  • judges have been notably wary in discussing their judicial philosophy:
    1) “My politics would be, must be, has to be, completely separate from my judging” - Elena Kagan
    2) “Judges are like umpires. Umpires don’t make the rules. They apply them” - John Roberts
25
Q

judicial activism: Sotomayor

A
  • there is a YouTube video of a panel discussion at Duke University where Sotomayor says appeals courts are “where policy is made”
26
Q

Legal expertise

A
  • the president will wish to select someone with legal expertise
  • eight of the nine justices were serving on one of the 13 Courts of Appeals when they were nominated to serve on the Supreme Court
  • the one exception is Elena Kagan
  • Harriet Miers in 2005 withdrew her nomination from Bush because many high ranking members of the senate criticised her as “inadequate”
27
Q

Diversity

A
  • the president will come under pressure to nominate justices that reflect the American population
  • Reagan promised to appoint a female judge in 1981 and did so with the appointment of justice Day O’Connor
  • O’Connor was joined by Ruth Ginsburg in 1993
  • in recognition of women as a core voting bloc Obama nominated two women Justices, Elena Kagan and Sonia Sotomayor
  • on top of this Sonia Sotomayor was the first Latino to sit on the court
28
Q

Confirmation

A
  • final consideration of nominating a Justice is whether he/she is capable of being confirmed by the Senate
  • this will be a factor when the opposition party controls the Senate
  • the most renowned case is the Senate rejection of Robert Bork in 1987
  • but such defeats do not happen regularly
29
Q

rejection of Robert Bork

A
  • advocated originalism
  • attacked by liberal pressure groups such as NOW, ACLU and NARAL pro-choice
  • he was rejected in a 58-42 vote in the Senate
30
Q

politicisation of the Supreme Court

A
  • due to increased polarisation between the Democratic and Republican parties and the growth of hyper-partisanship in the Senate
  • there are four conservatives, one moderate, and 3 liberals
  • increased number of 5-4 decisions
  • one change in the Court could lead to dramatic reversals on issues such as abortion and speech rights
  • it is hard to imagine a return to the days when justices were confirmed by near-unanimous margins: Justice Scalia and Ginsburg were confined by the Senate by the votes of 98-0 and 96-3 respectively (Scalia faced a Democratic-controlled congress)
  • Sonia Sotomayor and Elena Kagan only had a handful of republican votes to win confirmation and John Roberts had 22 Senators vote against him
31
Q

checking power

A
  • judicial review to strike down or uphold legislation and executive action
  • notable examples include:
    1. NFIB v. Sebelius (2013) struck down the Patient Protection and Affordable Care Act ability
    2. campaign finance ruling in Citizens United v. FEC (2010)
    3. gay rights ruling in US v. Windsor
  • all struck down acts of Congress
32
Q

Citizens United v. FEC

A
  • Supreme Court struck down the BCRA (2002)
  • the act designed to restrict the influence of corporations in the election process
  • Supreme Court ruled in a 5-4 decisions that the Act was unconstitutional as it limited free speech through limiting the communications which could be made by corporations
33
Q

US v. Windsor

A
  • repealed the Defence of Marriage Act (1996)
  • the court struck down the law in a 5-4 ruling along ideological lines
  • the ruling specifically referred to the due process clause in the 5th amendment and the Equal Protection Clause in the 14th amendment
34
Q

Presidential Power

A
  • the Supreme Court is similarly able to check the power of the executive branch by declaring actions by any member of the executive as unconstitutional
  • e.g. in US v. Nixon the Supreme Court ruled that Nixon’s use of executive privilege to hide audio tapes regarding the watergate scandal was unconstitutional
  • e.g. Clinton v. City of New York the Supreme Court ruled that the Line Item Veto Act (1996) was unconstitutional because it violated the Presentment Clause of the constitution
35
Q

DC v. Heller

A
  • 2008
  • struck down Firearms Control Regulations Act (1975) which banned residents from owning handguns and automatic firearms thus implying that the possession of firearms was not permitted on the grounds of self-defence
  • the court ruled for the first time that the 2nd amendment ‘right to bear arms’ applied to those wishing to retain them for self-defence purposes
36
Q

Shelby County v. Holder

A
  • 2013
  • the case invalidated the key principle of the Voting Rights Act of 1965
  • section 5 of the Act allowed the federal government to give pre clearance to any changes to voting practices or laws within the state in those states where there had been a history of voter discrimination
  • the provision was struck down on the grounds that the formula had not been updates since 1975 and thus was not responsive to current needs in the sense that it represented an impermissible burden on federalism and the principle of equal sovereignty for all states
37
Q

Rasul v. Bush

A
  • 2004
  • court ruled that the US courts had the authority to decide whether foreign nationals held in Guantanamo were wrongfully imprisoned
  • Guantanamo, despite being Cuban territory, was de facto controlled by the US and therefore came under federal judicial jurisdiction
38
Q

Boudediene v. Bush

A
  • the court ruled in a 5-4 decision that all prisoners had a right to habeas corpus and declared that the 2006 Military Commissions Act was unconstitutional
  • this affected the ability of Bush to execute the War on Terror
39
Q

example of the court upholding presidential power

A
  • Koresmatsu v. US (1994)
  • 6-3 decision
  • ruled that the controversial Executive Order 9066 issued by Roosevelt in 1942 was permissible
  • this forced the relocation of Japanese Americans living on the Pacific Coast to ‘War Relocation Camps’ for fear of espionage in favour of the Japanese
  • Rehnquist wrote in his book ‘All the Laws But One’ that civil liberties in wartime would necessarily be more greatly restricted than in peacetime
40
Q

1st amendment

A
  • guarantees freedom of religion, speech and expression
  • Synder v. Phelps (2011) upheld the defence of free speech even if what is being said is highly objectionable. The Westboro Baptist Church’s right to
  • Texas v. Johnson (1989) ruled that flag burning was a constitutional right
  • several attempts were made by Congress to advance a Constitutional amendment outlawing flag-burning; after achieving 2/3 majority in the House in 2005, the Flag Desecration Amendment was a single vote away from a 2/3 majority in the Senate in 2006
  • Citizens United v. FEC (2010) - business corporations and labour unions should have the same rights as individuals in respect of making donations to political campaign
41
Q

2nd amendment

A
  • US v. Lopez (1995) struck down the 1990 Gun-Free School Zones Act which made it a federal offence to knowingly possess a firearm in a designated school zone, thus the ruling upheld 2nd amendment rights
  • DC v. Heller (2008) the court ruled that residents living under federal jurisdiction namely the district of columbia had the right to possess arms for self-defence purposes
42
Q

14th amendment

A
  • case of Roe v. Wade (1973)

- upheld a woman’s right to choose by ruling that they were protected by the 14th amendment’s right to privacy

43
Q

14th amendment: rights of racial minorities

A
  1. Desegregation: Brown v. Board of Education (1954) ruled unanimously that segregation was unconstitutional. It overturned Plessy v. Ferguson (1898). Loving v. Virginia (1967) which overturned laws barring interracial marriage
  2. Racial: Meredith v. Jefferson (2007) ruled that it was unconstitutional to assign students to public schools solely for the purpose of achieving racial balance
  3. Gratz v. Bollinger and Grutter v. Bollinger (2003) aimed to ensure that ethnic minority students are equally represented
44
Q

Limitations on the Court’s power:

reject appointments

A
  • Congress can reject appointments as seen by the rejection of Bork in 1987 and the anticipated rejection of Harriet Miers in 2005
45
Q

Limitations on the Court’s power:

heavy scrutiny

A
  • Congress also has the ability to subject nominees to heavy scrutiny in their appearance before the Judiciary Committee which was most powerfully demonstrated in the questioning of Clarence Thomas in which Anita Hill had accused Thomas of sexual misconduct
46
Q

Limitations on the Court’s power:

impeachment

A
  • the power has only been used once in 1805 with the impeachment of Samuel Chase
  • it is nonetheless a powerful threat
  • Justice Abe Fortas resigned in 1969 rather than face almost-certain impeachment following allegations that he had been involved in financial impropriety
  • 8 lower court judges have been removed through impeachment
  • the last was judge Thomas Porteous in March 2011
47
Q

Limitations on the Court’s power:

constitutional amendments

A
  • Congress can propose constitutional amendments
  • if the constitution is amended it can limit the interpretive power of the Court
  • e.g. Pollock v. Farmers’ Loan and Trust Company (1895) declared federal income taxes to be unconstitutional. This ruling was superseded by the passage of the 16th amendment in 1913 which explicitly allowed for the collection of income tax
  • e.g. Oregon v. Mitchell (1970) ruled that Congress only had the power to set age requirements for federal election. The states ratified the 26th amendment which established the voting age as eighteen years
  • but it is hard to amend the constitution, made increasingly harder by polarisation which would make it hard to reah a 2/3 majority in Congress
  • recent attempts to amend the constitution in respect to flag burning, abortion, gay rights, and school prayer, have all failed to progress to the States for ratification
48
Q

Limitations on the Court’s power:

president

A
  • president has appointment power
  • they seek to appoint judges who share his judicial philosophy
  • Justices Kagan and Sotomayor both were nominated by Obama and both voted with the majority in protecting Obamacare and against the majority in Citizens United v. FEC
  • however Justices may evolve their as was seen in Justice Kennedy
49
Q

Limitations on the Court’s power:

no power of initiation or enforcement

A
  • the Court has to wait for cases to come to them
  • they can only pass their judgement and can’t enforce a law
  • e.g. Brown v. Board did not see the end to racial segregation. Eisenhower has to deploy troops in Little Rock to enforce the ruling
50
Q

Limitations on the Court’s power:

Court is a check on itself

A
  • the Supreme Court can amend and overturn earlier rulings

- e.g. Brown overturned Plessy, Gonzales overturned Stenberg

51
Q

Stenberg v. Carhart (2000) and Gonzales v. Carhart (2007)

A

1) Stenberg ruled that restricting abortion rights could lead to an erosion of the principles of Roe v. Wade
- struck down the provision as unconstitutional

2) Gonzales upheld the ban on the grounds that it did not impose an undue burden on women in the context of the due protection clause

US Politics - The Supreme Court (2 decks)

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