The Supreme Court Flashcards
What is the role of the SC?
The central role of the Supreme Court is to uphold the Constitution, as outlined in article I. As a constitutional court (rather than a criminal one it is not trying to ascertain innocence or guilt
Instead it determines the acceptabilty or otherwise) of actions within the rules of the Constitution
‘The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain and establish.’
Article III, Constitution of the United States of America
How many SC justices are there?
9
Features of SC laid out in Constitution (6)
•Establishes a Supreme Court (art. Ill, sec. 1)
•Extent of judicial power ‘to all Cases in Law and Equity arising under the Constitution’ (art.Il, sec. 2). The Supreme Court cannot initiate cases but must wait for a constitutional dispute to arise.
•Life tenure for judges during ‘good behavior’ (art. Ill, sec. 1)
• Original jurisdiction - a case is tried at the Supreme Court and does not have to be heard first in a lower court, in cases such as those involving constitutional disputes between states and between federal government and the states (art. Ill, sec. 2).
•Appellate jurisdiction - most cases must go to another court before being presented to the Supreme Court on appeal. The losing side in a lower court can appeal to the next court level until finally reaching the Supreme Court.
•The appointment process (art. Il, sec. 2) - all justices are nominated by the president and ratified by the Senate.
Features of SC implied by Constitution (1)
•The power of judicial review is the central power of the Court, allowing it to overturn any other institution because the Court declares its actions to be unconstitutional. Some argue that this power is apparent in the Constitution, as the Supreme Court is charged with upholding matters arising under the Constitution.
Others argue that the power of judicial review is not a legitimate power, as it is not awarded to the Supreme Court by the Constitution.
When did the SC give itself the power of judicial review?
The Court gave itself this power in Marbury v Madison 1803 when it first overturned an Act of Congress. This power was further defined in Fletcher v Peck 1810 in which the Court overturned state law for the first time.
Powers of SC established by Acts of Congress under constitutional authority (2)
•’establish ‘inferior courts’ - Congress determined a series of federal courts with constitutional power. There are 13 circuit courts (or appeals courts) below the Supreme Court, the final court of appeal
•determine the number of justices on the Court, which has long been set at nine, originating from post-Civil War legislation.
Why is it important that the SC is independent?
The Constitution ensures that the highest court in the United States is independent from other political institutions. This is particularly important for a constitutional court because it has the role of determining the constitutional acceptability of the laws and actions of president and Congress.
A court that is accountable to these institutions may be unable to give a ruling that regulates the president or congress.
In which ways is the SC independent (4)
-Separation of powers
-Appointment process
-Life tenure
-Salary
How does the Separation of Powers ensure the independence of the SC?
The separation of personnel means that no one in the executive or legislature works closely with judges, so there is little chance of close connections or pressure. (By contrast, in the UK, the highest court, the Law Lords, was until recently placed inside a legislative body, the House of Lords.)
How does the appointment process ensure the independence of the SC?
The president cannot determine the appointment of justices alone, but instead nominates, then the Senate accepts or rejects, having the power to ratify. This could prevent the president appointing someone who will not act independently, because they have close connections to the president.
How does life tenure ensure the independence of the SC?
Justices are appointed for life, preventing a threat of removal. President or Congress cannot remove a justice (though if a justice has acted illegally, Congress can remove them through a supermajority). This gives justices the freedom to act regardless of the wishes of the president of the day.
How do salary terms ensure the independence of the SC?
The judicial compensation clause of article Ill protects the pay of judges, stating that their pay ‘shall not be diminished during their continuance
in office.
Can the SC initiate a case?
The Supreme Court cannot initiate a case. Cases are presented to court by an individual or institution who feels that the Constitution has been broken. The Supreme Court receives between 7000 and 8000 cases a year. The Court has no duty to hear a case and currently opts to hear more than 100 cases per year. In the 2015-16 term, the Court dealt with 80 cases. The Court has some discretion in determining its own constitutional priorities.
How does the SC operate?
The Supreme Court operates in a similar way to a criminal court. There is a plaintiff and a defendant. Lawyers make arguments on either side, being given just 30 minutes to present their oral arguments. All nine justices usually hear a case; the justices can ask questions or make points during these hearings.
Once a case is heard, the Supreme Court discusses the case in private in order to reach a majority opinion of five or more. A justice in the majority is tasked with writing the opinion, with input from other justices. The opinion of the Court is a written document detailing how the Constitution has or has not been broken, at some length - for example, the Affordable Care Act ruling, NFIB v Sebelius, runs to 193 pages.
A majority opinion is an agreement by five or more members. It helps set a precedent for future cases, particularly for political institutions, organisations and individuals. The Supreme Court could choose to have a narrow and limited impact, or a broad-ranging one, when writing their opinion.
In split decisions, a minority opinion is also written.
In hearing a case, the Supreme Court has the power to declare that the actions or laws of other institutions are unconstitutional. This allows the Court to overturn those actions or laws using the power of judicial review.
What is a conservative justice?
a justice who interprets the Constitution and produces conservative outcomes. This might mean favouring the authority of the government over civil rights, overturning liberal policies of law-makers or upholding conservative ones, or protecting freedoms championed by conservatives, such as the right to bear arms or the right to life.
How many steps in the appointment process?
Three
Step one of the appointments process
A vacancy occurs-
Vacancies are caused by the death, resignation or impeachment of a justice. Justices are protected from threat of removal by life tenure.
Step two of the appointments process
The president nominates a new justice-
Presidents, with the aid of White House officials, will typically draw up a shortlist of nominees. The nominees’ public records and private lives are scrutinised, including FBI reports, before a president settles on a single nominee.
Step three of the appointments process
The Senate decides-
The Senate Judiciary Committee holds hearings, including an interview with the nominee, and makes a recommendation to the full chamber. The American Bar Association issues a report on the extent to which the justice is qualified, which may or may not influence the final decision. The full Senate votes with over 50 per cent required for the nominee to be appointed.
Examples of failed SC nominations
• Robert Bork 1987 was nominated by Reagan and was the last nominee to fail a vote in the Senate, 42-58.
• Harriet Miers 2005 was nominated by George W. Bush. Her moderate conservative nature and lack of judicial experience were both used as criticisms of her nomination. With a Republican Senate majority, Bush could have proposed a more conservative justice. Democrats chose to attack Miers, focusing on her lack of experience and connections to the president. This could be seen as irrational partisanship: after Miers withdrew, Bush nominated the far more conservative
Justice Alito - a political own goal for the Democrats
• Merrick Garland 2016 was nominated by Obama to replace conservative Justice Scalia. The Senate blocked any nomination by refusing to hold a vote. This can be seen as extreme partisanship: the Senate did not fulfil its constitutional duty to advise and consent. This is of major importance because it allowed President Trump to fill the vacancy instead - with Justice Gorsuch - and prevented the Court from switching to a 5-4 liberal majority.
Strengths of the appointments process (3)
-IT ENSURES INDEPENDENCE:
The life appointment and the use of separation of powers and checks and balances, after careful scrutiny, prevent a justice feeling under obligation to any one political institution or public opinion.
-IT ENSURES JUDICIAL ABILITY:
As nominations are carefully scrutinised by the Senate Judiciary Committee and rely on a full Senate vote, they are vetted for their ability to operate as a justice on the highest court in the United States. Justices without significant legal experience are unlikely to be successful. Since the start of the Clinton presidency, seven of the nine nominations to the Supreme Court worked in the US circuit courts. Harriet Miers, nominated by President George W. Bush in 2005, withdrew her nomination after heavy senate opposition.
-IT ENSURES PERSONAL SUITABILITY:
The intensive nomination also ensures that there are no historical concerns or character flaws. Sonia Sotomayor was questioned by some members of the Senate Judiciary Committee who were concerned about apparent racial and gender bias, especially her publicly expressed view that a ‘wise Latina’ might make a better judge than a white male. Reagan also experienced failure with the nomination of Douglas Ginsburg who was withdrawn after evidence emerged of previous mariana use.
Weaknesses of the appointments process (3)
-THE NOMINATION PROCESS IS POLITICISED:
The president’s own policy preferences infect the Court. This makes the Supreme Court a highly political body; justices are even described as liberal or conservative. This threatens the neutrality of the Court and its rulings.
There are constant criticisms that a justice has not based a decision on the Constitution. This threatens the Court’s authority - and the Constitution itself - with the risk that rulings are not respected. The decision of justices to retire can also be seen as a political decision, with a justice choosing to retire at a point where a like-minded president is in office.
-THE RATIFICATION PROCESS IS POLITICISED:
Increasingly the Senate appears to be acting in a partisan manner, supporting or opposing the nomination according to which president made it. The appointments in the 1980s of Kennedy and Scalia passed with huge bipartisan support and no votes against them. The nomination of Bork in 1987 appears to be something of a turning point. The Bork nomination was rejected, by Democrats in particular, who tried to prevent a strong conservative influencing the outcome of Court decisions. Since then, hearings have become more politically charged. This affects the heutrality of the Court as justices become entangled in a political dispute between Democrats and Republicans. Of the last four justices eventually nominated, all were opposed by more than
30 Senators.
-IT IS INEFFECTIVE:
As a result of this politicisation, nominees tend to avoid giving much detail of their views of the Constitution and recent constitutional issues, so the process fails to provide adequate scrutiny of the nominee. Nominees avoid what was arguably Bork’s mistake of being very open about their views (for example, Bork said that Roe v Wade had little or no legal basis). Instead they Simply argue, as Gorsuch frequently did in 2017, that they can only be expected to give a ruling on a case in front of them where they have all of the facts. Gorsuch regularly cited the need to maintain his public neutrality before he heard cases and said that he could not even say which precedents of the Court he particularly supported. In the Sotomayor nominations, Judiciary Committee Senators spoke twice as many words as Sotomayor, making this less of a hearing and more of a ‘talking’.
Also for other reasons such as for social characteristics
Why are some nominations more controversial than others?
The level of criticism is often affected by the political context and details of the nomination. Some nominations will have limited impact on the Court and the process tends to be less controversial - for example, when the nominee has similar values to the one being replaced. The nature of party control will also have an impact on how the nomination process plays out, with presidents more likely to secure a successful nomination if their party has a majority in the Senate (see case study below).
What is a swing justice?
informal name for the justice on the Supreme Court who falls ideologically
in the centre of the nine current justices and sometimes swings towards a liberal interpretation and at other times acts more conservatively
Case study: The nominations of Alito and Garland
When Justice Alito, a strong conservative, was nominated to replace Sandra Day O’Connor (a moderate swing justice), this led to strong opposition from the minority Democratic Party, with the late Senator Kennedy referring to it as a vote of a generation. The eventual appointment of Alito tipped the ideological bias on the Court, firmly establishing a conservative majority.
This can be easily illustrated with their change in attitude to campaign finance regulations and 1st amendment freedom of expression. In McConnell v FEC 2003, the majority delivered a 5-4 opinion, upholding the Bipartisan Campaign Reform Act 2002 and limiting campaign expenditure in US elections. After Alito replaced O’Connor, the Court reversed this decision in Citizens United v FEC 2010, undermining the regulations.
The death of conservative Justice Scalia gave Obama the chance to replace a conservative with a liberal, and to tip the ideological balance on the Court from a 5-4 conservative majority to a
5-4 liberal one The subsequent refusal of Senate majority Republicans to hold confirmation hearings, thus blocking the nomination until President Trump was in office, is evidence of both the importance of this particular nomination as well as the polarised nature of the process.
Trump’s nomination of Gorsuch had less significance in changing the composition and outlook
of the Court than Obamas nomination would have done. Gorsuch has a similar conservative ideology to Justice Scalia whereas Garland, the choice of Obama, was far more liberal. The nomination of Gorsuch led to a radical departure from traditional practice, where Senate Democrats for the first time led a successful filibuster against a Supreme Court nominee. As such, Gorsuch required 60 votes in order to end the filibuster (and not the 50%+ vote required by the Constitution). The Republicans then decided to change Senate rules to end the filibuster so that the Corsuch nomination could pass
Factors influencing the president’s choice of nominee (4)
-Judicial ability
-Ideology
-Social characteristics
-Political motivations
How can judicial ability affect the President’s choice of nominee?
First and foremost, presidents are picking from a pool of qualified people with legal expertise.
The vast majority of recent justices worked in the circuit courts, one level below the Supreme court.
Those with a lack of judicial experience have arguably faced tougher confirmation hearings. In his opening remarks to the Senate Judiciary Committee hearings on Kagan, Senator Jeff Sessions expressed concern at her background in legal academia father than judicial practice: MS. Kaganhas less real legal experience of any nominee in at least 50 years, and it is not just that the nominee has not been a judge. She has barely practiced law and not with the intensity and duration from which I think real legal understanding occurs.’
How can ideology affect the President’s choice of nominee?
Presidents are undoubtedly influenced by the ideological bias shown by the nominee, usually in the way in which they have interpreted the law or the Constitution in the past. Presidents are highly unlikely to nominate someone of an opposing political view; a Republican president is likely to choose a conservative justice.
Presidents have acknowledged as much, often highlighting other important qualities. Obama, appointing Sotomayor, said that judicial experience alone was insufficient. He said: ‘Experience being tested by obstacles and barriers, by hardship and misfortune, experience insisting, persisting, and ultimately, overcoming those barriers. It is experience that can give a person a common touch and sense of compassion, an understanding of how the world works and how ordinary people live:’
How can social characteristics affect the President’s choice of nominee?
Geographical background has long been a consideration (Washington was careful to award his six court appointments to different states), but there is an increasing racial and gender diversity on the Court. The Supreme Court in 2017 has three women sitting; only four women have served in total in its entire history. The Court has one black (two in total) and one Hispanic justice. It could be that presidents are making a value judgement about the desirability of diversity in positions of power. This is something that might be expected in a liberal president such as Obama replacing to white males with two females, including the Court’s first Hispanic justice. George H.W. Bush cominated Clarence Thomas, the second black justice on the Court, in 1990 (although Bush was also replacing the first black justice, Thurgood Marshall).
How can political motivations affect the President’s choice of nominee?
Presidents may be concerned more with personal political gain than with fulfilling ideological goals. nominating president has to consider the likely response of the Senate. A president facing a hostile majority in the Senate might make a more moderate choice to limit opposition. Conversely, a president may choose a justice to maintain support from key voting groups. After choosing Sotomayor, Obama was able to use this to increase his support among Hispanic voters between 2008 and 2012.
Info about the The Warren Court
1953-69
known for hearing a series of civil rights cases delivering liberal opinions. Cases such as Brown V Board of Education 1954 and Miranda v Arizona 1966 are seen as landmark liberal rulings.
Described as activist by those who daim it overturned established practices to achieve its own political goals.
Info about The Rehnquist Court
1986-2005
Seen as a more restrained rather than active court. It heard fewer cases, dealing with fewer than 100 per year, reducing its political impact.
Associated with a states’ rights agenda with several rulings that protected the power of the states, halting decades of expansion of federal power.
Info about The Roberts Court
2005- (update)
Arguably more conservative than the Rehnquist Court with the nomination of Justice Alito to replace the moderate conservative swing justice, Sandra Day O’Connor.
Has delivered a series of conservative rulings undermining campaign finance regulations such as Citizens United v FEC
2010 and McCutcheon v FEC 2014.
Has disappointed conservatives in other cases such as
NFIB v Sebelius, which upheld Obama’s Affordable Care Act.
No. Of unanimous decisions
.
Case study: The conservative agenda of the Roberts Court
The dominant outcome of the Roberts Court has been conservative in its impact. This can be seen in a number of 5-4 cases that have angered liberals. In DC v Heller 2008, the Court departed from judicial precedent, stating for the first time in its history that the 2nd amendment gave individuals (as opposed to those joining militias as a form of protection of state power) the right to bear arms. This overturned one of the most restrictive gun laws in the US, favoured by liberals, in which handguns were banned from homes. The Court’s conservative credentials were further established in Citizens United V FEC 2010 and McCutcheon v FEC 2014. These cases overturned congressional restrictions on the use of money in US elections, making it easier for the wealthy to donate unlimited dollars. One of the most controversial rulings was Shelby County v Holder in 2013, which undid some of the major aspects of the civil rights movement by critically undermining the Voting Rights Act. This means that states cannot be checked by the federal government to ensure that their voting practices are not discriminatory. According to the NAACP the National Association for the Advancement of Colored People), this ruling has led to an explosion of restrictive practices in the 2016 elections.
However, conservatives have been disappointed and in some cases angry at some of the most important decisions made by the Court. In NFIB v Sebelius, the Court was given an opportunity to review Obama’s Affordable Care Act with only four of the conservative justices arguing that it restricts state power, breaking the interstate commerce clause. Chief Justice Roberts, in a surprise interpretation, stated that the act was constitutionally acceptable because the health care provision was a form of tax, which Congress had the right to impose. The four liberals also ruled in favour of the act but for different reasons, meaning the Court upheld Obama’s flagship policy. This interpretation shows how much control justices have over their rulings. In Obergefell v Hodges 2015, the Court issued a landmark liberal ruling by stating that gay rights were
protected by the tach amendment.
Significant public policy cases of Roberts Court (update)
-DC v Heller 2008: 2nd amendment case overturning a ban on handguns in the home in Washington DC
-Citizens United v FEC 2010: 1st amendment case overturning public policy regulating money in elections, declaring that parts of the Bipartisan campaign Reform Act were unconstitutional
-NFIB v Sebelius 2012: States’ rights/interstate commerce clause and the 16th amendment right of federal government to impose income tax, which upheld a major piece of public policy in the Affordable Care Act
-Shelby County v Holder 2013: Overturned longstanding public policy of Voting Rights Act 1965, arguing that there was no case for it under the 14th amendment, equal treatment, thus protecting states’ rights to decide election laws
-Riley v California 2014: 4th amendment case that unanimously protected people from unwarranted police searches of their mobile phone
-Obergefell v Hodges 2015: Created a constitutional guarantee of the right to gay marriage under the 14th amendment, covering both the due process and equal treatment clauses, forcing many states to change their public policy
-Whole Woman’s Health v Hellerstedt 2016: Overturned Texas state regulations on abortions (which required health compliance leading to the
closure of most Texas clinics on the grounds of 4th amendment restrictions on equal protection, placing an undue burden on women.
Three ways in which the SC impacts public policy
Removes existing policy:
• Citizens United v FEC 2010
• Shelby County v Holder 2013
Upholds existing policy:
• NFIB v Sebelius 2012
• King v Borwell 2015
Establishes new policy:
• Obergefell v Hodges 2015
What is public policy?
legislation and judicial decisions made on any policy that affect the
US populations.
Definition of judicial activism
an approach to judicial decision-making that holds that a justice should use their position to promote desirable social ends by overturning political institutions or court precedent.
Definition of 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 principle established in previous court decisions
Two key components of judicial activism
•justices use their own views and values in order to achieve their own social or political goals
•activism involves the Court overturning other political institutions or the precedent of previous courts.
This activism might reflect itself in the approach of an individual justice who is associated with. a particular stance, which they use to challenge political institutions. However, it is most forceful when used by the majority on the Court, and is most easily seen over a series of cases where justices consistently appear to be attempting to challenge political institutions.
Previous judicially active courts
A judicially active court is likely to have a major impact on public policy. Judicial activism is associated with the Warren Court 1953-69, which gave a series of rulings that promoted civil rights, typically at the expense of state law. This civil rights agenda can be seen in cases such as Brown v Board of Education 1954 and Miranda v Arizona 1966. The Roberts Court has consistently ruled against campaign finance regulations - for example, in the Citizens United and McCutcheon cases - suggesting it is using its interpretation of the 1st amendment to promote conservative judicial activism.
