The judicial branch of government

Question 1

What is the appointment process of SC judges?

Answer 1

1. Vacancy opens
2. President considers possible nominees
3. Candidates are shortlisted and background-checked
4. The final few are interviewed by the president
5. The president’s choice is formally announced, leading to massive media attention
6. Nominee appears before the Senate Judiciary Committee

Question 2

Is the nomination of SC judges an effective process?

Answer 2

1. No, the Senate Judiciary Committee appears to be politicised.
   E.g. questioning from the opposition party is often aggressive or focused on embarrassing a nominee rather than on analysing judicial expertise such as Brett Kavanaugh

Yes, nominees are heavily scrutinised by multiple other institutions
E.g. every nominee is scrutinized by the White House, the FBI and the media.

2.
No, President’s usually try to choose nominees who appear to support their own political philosophy.
E.g. Obama appointed Sonia Sotomayor and Elena Kagan who are both liberals like himself

Yes, attempts by presidents to pick justices who share their political philosophy are not always successful.
E.g. Republican President George W. Bush appointed David Souter in 1990, but Souter was unexpectedly a liberal member of the court.

3.
No, the Senate can refuse to consider a nominee
E.g. the Republican Senate refused to consider Obama’s nominee Merrick Garland, as it was near the end of his second term and they wanted a Republican nominee.

Yes, the Senate confirmation is a crucial check on the power of the president, he must choose a candidate who commands sufficient support for senators.

Question 3

What is the nature of judicial review?

Answer 3

1. Declaring Acts of Congress unconstitutional
   E.g. in Obergefell vs Hodges 2015 the 1996 Defence of Marriage Act was struck down as unconstitutional as the 14th amendment protected the right of everyone to marriage. (this effectively legalised same-sex marriage)
2. Declaring actions of the executive unconstitutional
   E.g. in 2017 Trump’s executive order banning on travellers from certain Muslim-majority countries was struck down as unconstitutional due to the 1st amendment right of freedom of religion.
3. Can declare actions of state governments, or Acts passed by state legislatures as unconstitutional
   E.g. in Brown v. Board of Education 1954, the SC struck down American state laws establishing racial segregation in public schools, as this was unconstitutional according to the 14th amendment
4. Can check the President’s power
   E.g. in Boumediene v Bush 2009, the court ruled that foreign nationals detained at Guantanamo Bay by Bush’s administration had a right to challenge their detentions in federal court.

Question 4

What are the types of SC judges?

Answer 4

1. Strict constructionists believe that the text of the Constitution should be followed as closely as possible.
   E.g. usually appointed by Republican presidents such as Clarence Thomas and Brett Kavanaugh.
2. Loose constructionists believe the Constitution should be interpreted more loosely, taking into account general intensions of the framers.
   E.g. usually appointed by Democrat presidents such as Sonia Sotomayor and Elena Kagan.

Question 5

How has the Court interpreted the constitution in recent years?

Answer 5

1. The Court has interpreted the 1st Amendment to protect freedom of speech.
   E.g. in Citizens United v FEC 2010, the Court ruled that corporation had the same rights to free speech as individuals and could therefore make political donations.

2.
The Court has interpreted the 2nd Amendment to protect gun control.
E.g. in District of Columbia vs Heller 2008 the Court ruled that the amendment does grant an individual the right to bear arms.

3. The Court has interpreted the 8th Amendment to protect the death penalty.
   E.g. In Baze v Rees 2008 the Court ruled that lethal injections was not ‘cruel and unusual punishment’ and could therefore be used for executions.

Question 6

Why has the Court been accused of making political decisions?

Answer 6

Obergefell vs Hodges 2015
E.g. the 1996 Defence of Marriage Act was struck down as unconstitutional due to the 14th amendment
(this had the same effect as new law legalising same-sex marriage, the court has gone beyond interpreting the law, to making it)

Question 7

Is the SC too political?

Answer 7

1. No, attempts by presidents to pick justices who share their political philosophy are not always successful.
   E.g. Republican President George W. Bush appointed David Souter in 1990, but Souter was unexpectedly a liberal member of the court.

Yes, president’s usually try to choose nominees who appear to support their own political philosophy and it usually works
E.g. Obama appointed Sonia Sotomayor and Elena Kagan who are both liberals who share his ideas.

2.
No, many justices are strict constructionists, who practise judicial restraint.
E.g. Clarence Thomas, who interprets the constitution word for word, believed that the framers had no intention of authorising same-sex marriage when they write the constitution. This was therefore ‘legislating from the bench’

Yes, the approach of loose constructionists to interpreting the Constitution have led to criticisms of the Court acting as ‘third house of the legislature’.
E.g. Obergefell vs Hodges 2015 which struck down the 1996 Defence of Marriage Act was struck down as unconstitutional due to the 14th amendment, effectively legalising same-sex marriage through interpretation without making a law.

Question 8

‘3 ways in which the SC has protected civil rights’

Answer 8

1. SC acts as the ultimate court of appeal for people who believe their rights have been infringed.
   E.g. Brown v Board of Education 1954 the SC struck down American state laws establishing racial segregation in public schools, as this was unconstitutional according to the 14th amendment. This case was brought by 13 black women whose children were denied access to all-white schools.
2. SC has interpreted actions of the executive as unconstitutional.
   E.g. in 2017 Trump’s executive order banning on travellers from certain Muslim-majority countries was struck down as unconstitutional due to the 1st amendment right of freedom of religion.
3. The SC strikes down laws passed by federal or state legislatures if they do not comply with the Bill of Rights E.g. in Obergefell vs Hodges 2015 the 1996 Defence of Marriage Act was struck down as unconstitutional as the 14th amendment protected the right of everyone to marriage. (this effectively legalised same-sex marriage)
4. The Court interprets the Bill of Rights, to rule on how its provisions should be enacted.
   E.g. In Baze v Rees 2008 the Court ruled that lethal injections was not ‘cruel and unusual punishment’ and could therefore be used for executions.

Question 9

Explain and analyse three ways in which the Supreme Court interprets the constitution. [9]

Answer 9

1. Judicial activism, justices should use their position to promote desirable social ends
   E.g. Obergefell v Hodges 2015, gay marriage is not what the Founding Fathers intended but it has a desirable social end
2. Strict constructionism, justices should interpret the words literally
   E.g. District of Columbia v Heller 2008 the court interpreted the ‘right to bear arms’ in the 2nd Amendment to give citizens the ability to own guns
3. Loose constructionism, justices should read between the lines and make inferences
   E.g. Roe v Wade 1973, the SC interpreted the 4th Amendment right to private property to include a woman’s right to her unborn child and therefore allow her have an abortion