The Supreme Court Flashcards
Outline the significance of the appointment process for the president.
Justices sit for life and thus can be the only legacy of that presidency long after the president leaves office. E.g. Justice Kennedy served from 1988 to 2018 - 30 years (appointed by Raegan).
Outline the confirmation process of the judiciary in the Senate.
- Nominees appear before the Senate Judiciary Committee.
- The nominee may wish to withdraw to prevent embarrassment - e.g. 2005 Harriet Miers withdrew because conservative Senators became sceptical as to her ideologies.
- The ratio of the committee gives an indication as to the Senate’s intention -e.g. Ginsberg’s 18-0 vote led to a 96-3 vote.
Give three ways the judicial appointments process has become more politicised.
- President’s use a ‘litmus test’ - looking at previous rulings rather than legal qualifications e.g. Clarence Thomas.
- Clarence Thomas’ mendacity was focused upon (allegations of sexual assault) rather then meritocracy (legal acumen) during hearings.
- During divided government appointments become almost impossible e.g. Merrick Garland - refused to be heard by Republican Senate. - Unified government - questions are soft and there is little resistance.
Give three ways in which the appointments of the judiciary are important.
- Life tenure - Kennedy appointed by Raegan - served for 30 years.
- Judicial review places great power in the hands of a few -e.g. Hamdan v. Rumsfeld.
- They occur infrequently - average of every 2 years - following National Labour Board v. Canning, Obama didn’t appoint for 4 years.
Give some ways that judicial review has made the Supreme Court a political institution.
- Mark Shields - ‘the only thing separating the two parties is abortion’. - the SC is the main body to rule on this issue - politics is an implication of the SC’s remit.
- Bush v. Gore - effectively handed the 2000 election to Bush - a result of Raegan and H. W. Bush’s conservative appointments?
Define judicial activism and give some examples.
- Taking on a larger case ‘docket’ and making rulings into contentious social matters e.g. abortion.
- The Warren Court was said to be a judicially active institution because of rulings such as Brown v. Board.
- Roe v. Wade
- Obergefell v. Hodges.
- Hamdan v. Rumsfeld.
- Baze v. Rees - lethal injection was not cruel or unusual.
Define judicial restraint and provide examples.
Justices only use their power in seldom cases - they would rather congress legislate on contentious matters.
e.g. Toto v. United States - the federal government had the final say on gun policy.
Follow the principle of stare decisis.
Give an example of ruling on the first amendment right - freedom of religion.
Zelman v. Simmons-Harris - an Ohio programme that provided financial aid to parents to send their children to religious schools was unconstitutional.
Give an example of a ruling on the first amendment right - freedom of speech.
- Citizens United v. FEC - businesses and unions have the same rights of freedom of speech as individuals.
- Texas v. United States - burning a flag was considered freedom of speech.
Give an example of a ruling on the second amendment right - the right to bear arms.
- District of Columbia v. Heller - Columbian law that banned handguns and placed restrictions on shotguns was unconstitutional.
Give an example of a ruling on the 8th amendment right - cruel and unusual punishments.
- Ring v. Arizona - death penalty sentenced by judges, rather than a jury, contravened the 6th amendment - the right to a fair trial.
Give an example of a public policy ruling on abortion.
- Roe v. Wade- 14th amendment’s right to ‘liberty’ extended to marriage and family life.
- Gonzales v. Carhart - upheld the ban on partial birth abortions under the Partial Birth Abortion Ban Act 2003.
- Medical Services v. Russo - highly restrictive Louisiana state laws were unconstitutional.
Give an example of a public policy decision on marriage equality.
- United States v. Windsor - Defence of Marriage Act 1996 was unconstitutional.
- Obergefell v. Hodges - decriminalised same-sex marriage in the US - dissenters took the view that the court was not a legislature.
Give two occasions on which the SC has ruled on congressional statute.
Healthcare Reform:
- National Federation of Independent Business v. Sebelius - Upheld the Affordable care Act’s requirement for individuals to be covered by health insurance.
Immigration:
- United States v. Arizona - struck down Arizona immigration law (SB1070) that encroached on the federal government’s remit on immigration.
Give some occasions on which the Supreme Court have overruled the president.
- Hamdan v. Rumsfeld - the military commissions created to sentence detainees was unconstitutional.
National Labour Relations Board v. Canning - Obama’s recess appointments were unconstitutional - Obama’s own appointees (Sotomayor and Kagan) found against him.
United States v. Texas - Obama’s Deferred Action for Parents of Americans - would allow 5 million refugees residence in US - was unconstitutional as he had no grounds to make such drastic changes without congressional approval.
Give some analysis of judicial review allowing for interpretation of the constitution.
Prevents amendments to the constitution because the ease of judicial ‘interpretation’ amendments removes the need for formal amendment.
Gonzales v. Carhart - prodigious impact on the constitution that would only be possible through congressional amendment.
Give some analysis of judicial review politicising the judiciary.
An institution that interferes with issues such as: abortion, gun control and the death penalty is a political institution.
- E.g. United States v. Texas - Obama’s Deferral for Parents of Americans - declared unconstitutional.
Give some analysis of judicial review giving the judiciary a quasi-legislative function.
‘Legislating from the bench’ - characterised by loose constructionists.
E.g. decriminalisation of gay marriage in Obergefell v. Hodges - seen to be crossing into the remit of congress.
Give some analysis of judicial review allowing for the protection of rights.
- Ring v. Arizona’s ratio demonstrates the SC’s ability to upkeep and guard ancient legal principles (Magna Carta)
- Their decision to protect certain rights is often criticised ‘one man’s equality is another man’s discrimination’.
Make the case that the USSC is more political than it’s UK counterpart regarding judicial review.
US - can use judicial review to strike down laws - e.g. Arizona v. United States - SB1070 immigration law stuck down as it encroached on Federal gov’s remit.
UK - Merely persuade parliament to change the law - statute is supreme law - e.g. R (Anderson) v. Secretary of Housing - s.29 of the Crime (Sentences) Act 1997 violated article 6. - repealed by Parliament in s.303 of the Criminal Justice Act 2003.
Make the case that the USSC is more political than its UK counterpart in relation to presidential actions.
US - National Labour Relations Board v. Canning - Obama’s recess appointments were declared unconstitutional.
UK - also declare ultra vires PM’s actions - R (Miller) v. PM - proroguing parliament was ultra vires.
More serious consequence in the US though.
Make the case that the USSC is more politicised than its UK counterpart in relation to elections.
US - can decide the outcome of presidential elections - e.g. Bush v. Gore - split largely on party lines (5-4) - effectively handed the election to Bush - different philosophy, different result.
UK - Separation of powers - would never occur in the UK - form coalition instead.
Make the case that the UKSC is more politicised than its US counterpart in relation to devolution.
UK - able to apportion devolved powers - e.g. Attorney General’s Reference of the Wales Agriculture Bill 2014 - challenged the bill by claiming it went beyond the Wales Act 2006.
US - Toto v. United States - federal government have the final say on gun policy.
Make the case that the USSC is more political than its UK counterpart in relation to the appointments process.
US - Appointed by the president - the president may choose someone based on their philosophy rather than legal merit - e.g. Raegan’s Justice Kennedy who served for 30 years.
- Majority of Senate rejections occur during times of divided government - e.g. Robert Bork and Merrick Garland.
- UK - made by the Judicial Appointments Committee - completely free from political interference.
