The Supreme Court

Question 1

Antonin Scalia

Answer 1

• Appointed in 1986 by Reagan
• Confirmed 98-0
• Originalist/Conservative
• Italian-American
• Catholic

Question 2

Anthony Kennedy

Answer 2

• Appointed in 1998 by Reagan
• Confirmed 97-0
• Swing Justice (Conservative leaning)
• Caucasian
• Catholic

Question 3

Clarence Thomas

Answer 3

• Appointed in 1991 by George H.W. Bush
• Confirmed 52-48 after controversy over sexual harassment allegations by former employee Anita Hill
• Originalist/Conservative
• African American
• Catholic

Question 4

Ruth Bader Ginsburg

Answer 4

• Appointed in 1993 by Bill Clinton
• Confirmed 96-3
• Loose Constructionist/Liberal
• Caucasian
• Jewish

Question 5

Stephen Breyer

Answer 5

• Appointed in 1994 by Bill Clinton
• Confirmed 87-9
• Loose Constructionist/Liberal
• Caucasian
• Jewish

Question 6

John Roberts

Answer 6

• Appointed Chief Justice by Bush in 2005
• Confirmed 78-22
• Originalist/Conservative (though not consistently)
• Caucasian
• Catholic

Question 7

Samuel Alito

Answer 7

• Appointed by Bush in 2006
• Confirmed 58-42
• Originalist/Conservative
• Italian-American
• Catholic

Question 8

Sonia Sotomayor

Answer 8

• Appointed by Obama in 2009
• Confirmed 68-31
• Loose Constructionist/Liberal
• Hispanic
• Catholic

Question 9

Elena Kagan

Answer 9

• Appointed by Obama in 2010
• Confirmed 63-37
• Loose Constructionist/Liberal
• Caucasian
• Jewish

Question 10

US v. Nixon

Answer 10

1974 - ruled in a unanimous decision that President Nixon’s executive privilege did not give him the right to withhold potentially incriminating evidence against him from Congress during the Watergate scandal.

Question 11

NFIB v. Sebelius

Answer 11

2012 - upheld the vast majority of the provisions of Obamacare (2010) in a 5-4 decision. Particularly notable due to the fact that Roberts sided with the majority (though in his opinion he did note that he thought it was a bad law, but not an unconstitutional one). Evidence both of judicial restraint and the inconsistency of his conservatism.

Question 12

Bush v. Gore

Answer 12

2000 - in a 5-4 decision, overturned the Florida Supreme Court’s decision and ordered an end to the state-wide manual recount in the Presidential election, despite widespread reports of irregularities, thus awarding Bush victory in the election. Evidence of the politicisation of the court, and of conservative activism, as the court directly overturned a lower court’s decision.

Question 13

US v. Virginia

Answer 13

1996 - ruled that public universities could not be gender-exclusive, thus forcing the Virginia Military Institute to admit female students under the equal protection clause of the 14th Amendment.

Question 14

Gonzales v. Oregon

Answer 14

2006 - ruled that the federal government could not use the Controlled Substances Act (1970) to prevent assisted suicides from taking place in Oregon - the practice had been instituted via initiative. Seen as a victory for states’ rights.

Question 15

Stenberg v. Carhart

Answer 15

2000 - ruled 5-4 that a Nebraska law prohibiting late-term abortions was unconstitutional, as it placed an “undue burden” on a woman’s right to choose, arising from fear of arrest and prosecution. Sandra Day O’Connor

Question 16

Gonzales v. Carhart

Answer 16

2007 - upheld the federal Partial Birth Abortion Ban (2003), which was virtually identical to the Nebraska law struck down in Stenberg v. Carhart. The change in view arose from the replacement of the moderate Day O’Connor with the strongly conservative Alito. The New England Journal of Medicine wrote that “this is the first time that the Court has held that physicians can be prohibited from using a medical procedure deemed necessary by the physician to benefit the patient’s health.”

Question 17

Importance of Anthony Kennedy

Answer 17

The retirement of Sandra Day O’Connor in 2005 left Kennedy as the court’s only swing justice, with distinct liberal and conservative blocs on either side of him. In the Court’s 2012-13 session, 23 cases were decided 5-4. In 16 of these, the majority was formed by the liberal or conservative bloc plus Kennedy - in this way, he was able to essentially decide those cases alone, which included Shelby v. Holder (2013) and US v. Windsor (2013).

Question 18

Texas v. Johnson

Answer 18

1989 - struck down 48 states’ bans on burning the American flag in a 5-4 decision, under the 1st Amendment, with Scalia unexpectedly joining the liberal majority. He later expressed his personal abhorrence of flag-burning, evidencing the judicial restraint involved in his decision.

Question 19

Judicial Activism

Answer 19

Black’s Law Dictionary defines judicial activism as “a philosophy of judicial decision-making whereby judges allow their personal views to guide their decisions.” Also interpreted with overturning precedent, striking down laws, even if they have strong democratic mandates, and “finding” new rights in the Constitution.

Question 20

Judicial Restraint

Answer 20

A philisophy of judicial decision-making whereby judges decisions are made independently from their own personal views. Judges will also tend to defer to the elected legislative branches of government, as well as preexisting precedent.

Question 21

Rejection of Robert Bork

Answer 21

• Nominated by Reagan in 1987 to replace the moderate Lewis Powell
• Explicitly described himself as an originalist and stated his opposition to Roe v. Wade
• Democratic Senator Ted Kennedy made a passionate speech against his nomination, accusing him of favouring segregation and censorship
• Became the 3rd nominee to be opposed by the American Civil Liberties Union
• Rejected by the Senate Judiciary Committee 9-5, but insisted on a full Senate vote
• Rejected 58-42

Question 22

Clinton v. City of New York

Answer 22

1996 - struck down the Line Item Veto Act (1996), which allowed the President to remove certain sections of bills without vetoing the entire thing.

Question 23

Korematsu v. US

Answer 23

1944 - Ruled that the internment of Japanese Americans on the West coast was constitutional, despite the fact that the only criterion for internment was ethnicity, under the principle of deference to the Executive branch in a time of war. Evidence of the fact that judicial restraint can lead to the curbing of civil liberties.

Question 24

Planned Parenthood v. Casey

Answer 24

1992 - upheld a Pennsylvania law requiring women who want an abortion to receive advice on the risks and alternatives, and wait for 24 hours. The law also required parental consent for minors. However, the Court did strike down the section of the law that required married women to notify their spouse. Evidence of the erosion of Roe v. Wade.

Question 25

Oregon v. Mitchell

Answer 25

1970 - ruled that the federal government could set age restrictions on voting in federal elections alone, not state elections. Congress and the States responded by passing the 26th Amendment in 1971, which set a unilateral voting age of 18, thus superseding the court’s decision.

Question 26

Impeachment

Answer 26

Only one Supreme Court justice has ever been impeached - Samuel Chase in 1805. However, the threat of impeachment may be an equally effective check - Justice Abe Fortas resigned in 1969 before he could be impeached over allegations of financial impropriety.

Question 27

McDonald v. Chicago

Answer 27

2010 - reinforced the individual right to bear arms established in DC v. Heller (2008) by ruling that overly onerous restrictions on gun ownership are unconstitutional also.

Question 28

Shelby v. Holder

Answer 28

2013 - struck down, in a 5-4 decision, the section of the Voting Rights Act which required states with a past history of racial discrimination to have any plans to alter their voting arrangements reviewed by an independent body, through a process known as preclearance. Clear example of conservative judicial activism, as the decision overturned clear democratic will - the act had been reauthorised in 2006 with only 33 votes against it, all in the House. Evidence of the problems with activism - Justice Sonia Sotomayor argued that any legislation that has helped to reduce racial discrimination, as the Voting Rights Act clearly has, falls under the federal government’s 15th Amendment mandate, and thus should not be considered unconstitutional.

Question 29

Structure of the Judiciary

Answer 29

US District Courts (94)
                 l
US Courts of Appeal (13)
                 l  
    Supreme Court

Question 30

How do cases get to the Supreme Court?

Answer 30

• Cases go to the SC via appeal from either the Court of Appeals (for a federal crime) or from a state Supreme Court (for a state crime).
• Court holds a conference in which it agrees which cases it will hear - usually hears 80-90 out of around 10,000 (about 1%)

Question 31

Appointment Process

Answer 31

• President nominates a successor to a dead or retiring justice - if the chief justice needs replacing, he may opt to promote an incumbent associate (e.g. Rehnquist) or an entirely new justice (e.g. Roberts).
• Nominee is scrutinised by the FBI and American Bar Association - the latter rates the nominee Well Qualified, Qualified or Not Qualified. Of the current court only Thomas was rated as Qualified.
• Senate Judiciary Committee holds hearings to question the nominee on their judicial philosophy, before voting on whether to recommend them for a whole Senate vote
• Whole Senate votes - simple majority needed for appointment

Question 32

Criticisms of the appointment process

Answer 32

• Committee hearings, votes and media coverage have become increasingly partisan - confirmation votes under Bush and Obama have seen far more partisan dissent that previous votes. Chief Justice Roberts claimed that “neither [Scalia or Ginsberg] would have a chance today, and that doesn’t make any sense. That’s bad for the judiciary.”
• Disproportionate focus on “litmus test” issues, such as abortion - many nominees are questioned on their religious values, and how they impact their views on abortion, which some argue violates the prohibition on religious tests for federal office. The first question asked to Bush Sr. after nominating David Souter was “did you ask Judge Souter his views on abortion?”
• Involvement of interest groups in the process can remove the focus from the core issue of whether the nominee is sufficiently qualified, e.g. National Organisation of Women spent $15m opposing Robert Bork (Bork referred to their efforts as “a public campaign of distortion”), and also attempted to engineer the rejection of Clarence Thomas.
• Presidents consistently nominate justices whose political outlook matches their own - e.g. Court’s current conservative bloc all nominated by Republicans, liberals by Democrats. When he was a Senator, Obama called Alito “an election to appease the far right wing of the Republican Party.” Nominees may not be the best-qualified option, e.g. Bush Jr. nominated Harriet Miers, a family friend and lawyer, despite having no experience as a judge (she later withdrew).

Question 33

Did Roe v. Wade effectively protect abortion rights?

Answer 33

• Yes: In principle, any woman can get an elective abortion in every state, within the first 12 weeks of the pregnancy - this right cannot be taken away. Prior to the case, 30 states had instituted blanket bans on abortions, whilst a further 20 had only legalised it in limited circumstances, such as in cases of rape or danger to the woman’s life. Though there are some restrictions on abortion rights, these are surely less impactful than those in place before Roe.
• No: The Court has consistently voted to uphold restrictions on abortion rights at both the state and federal level, e.g. Planned Parenthood v. Casey (1992), Gonzales v. Carhart (2007). These rulings allowed for a ban on late-term abortions, and mandatory waiting periods - these can extend to 48 hours in some states, such as Texas. Abortions can cost up to $1500 - many argue that this represents an “undue burden” on the poor.

Question 34

Arguments in favour of Loose Constructionism - Subjectivity

Answer 34

• Originalism cannot be said to be truly objective - how can we definitively ascertain the exact original meaning of the Constitution? Supreme Court justices are not historians, and there is often insufficient evidence to accurately determine the intended meaning of the vaguer passages of the Constitution.

Question 35

Arguments in favour of Loose Constructionism - Flexibility

Answer 35

• The Constitution must be allowed to be flexible, for two key reasons: firstly, it is perverse to allow a centuries-old document to dictate how a modern society, with modern values, is run, without any consideration of contemporary circumstances. Secondly, it is unrealistic to expect the framers to have allowed for modern developments like the internet, so some degree of interpretation is necessary in order to apply it to such modern cases.

Question 36

Arguments in favour of Loose Constructionism - Vagueness

Answer 36

• Some argue that parts of the Constitution were written with deliberately vague language in order to allow for interpretation. For example, Justice Sonia Sotomayor has commented on the fact the 4th Amendment’s prohibition of “unreasonable searches and seizures” offers no definition of “unreasonable,” “search,” or “seizure,” thus leaving its interpretation for the justices to decide - this issue came to the fore in US v. Jones (2012), in which the government had tracked the movements of a suspected drug dealer without a warrant - its actions were ruled unconstitutional, as the tracking was classed as a “search.” “Cruel and unusual punishment” also falls under this banner, e.g. Trop v. Dulles (1958).

Question 37

Arguments in favour of Loose Constructionism - Adaptability

Answer 37

• A consistent originalist ought to vote against Brown v. Board, one of the most popular Supreme Court decisions of all time, as at the time of the ratification of the 14th Amendment, with its “equal protection” clause, schools across much of the country were segregated, including in Washington D.C. The 14th Amendment was clearly viewed as being compatible with segregation, as was reaffirmed in Plessy v. Ferguson (1898), which coined the doctrine of “separate but equal.” Nevertheless, Brown was a unanimous ruling, in spite of the presence of noted originalists and textualists, such as Hugo Black, on the court. The fact that originalism should have allowed for segregation demonstrates its inability to adapt to reflect social values, whilst the fact that the court’s originalist justices’ votes did not reflect this demonstrates the inconsistency which is often exhibited by originalists.

Question 38

Arguments in favour of Loose Constructionism - Protection of Individual Rights

Answer 38

• It is the legitimate role of the Supreme Court to offer a broad application of constitutionally guaranteed rights - loose constructionist verdicts have delivered protection of LGBT rights (Lawrence v. Texas (2003)), abortion rights (Roe v. Wade (1973)) and the rights of prisoners (Miranda v. Arizona (1966)).

Question 39

Arguments in favour of Loose Constructionism - Difficulty of Amendment

Answer 39

• The alternative method for updating the Constitution is the amendment process, which is hugely complicated - the requisite supermajorities in Congress and 3/4 majority of states is extremely difficult to achieve, even when there is clear political will for an amendment. For example, a proposed Equal Rights Amendment (ERA) for women passed Congress in 1972, but several states refused to hold votes for ratification, and the amendment died. The Supreme Court must compensate for such circumstances, as it did in Reed v. Reed (1971), striking down a sexist Idaho law.

Question 40

Arguments in favour of Originalism - Amendments deliberately difficult

Answer 40

• It is argued that the framers made a deliberate decision to make it difficult to amend the Constitution, thus ensuring that any change required very broad support, not just the fleeting whim of one party.

Question 41

Arguments in favour of Originalism - Objectivity

Answer 41

• Despite any difficulties, an originalist approach to judicial decision-making will always be more objective than a loose constructionist one, which will inevitable call on the justices’ own views - Clarence Thomas epitomised this view by saying “there are really only two ways to interpret the Constitution - try to discern as best we can what the framers intended or make it up.” OR Scalia in Atkins v. Virginia.

Question 42

Arguments in favour of Originalism - Neutrality

Answer 42

• Originalism is more conducive as a judicial philosophy to judicial neutrality, a key principle of the judiciary. Thomas Jefferson, a Founding Father, expressed the view that a “living Constitution” is “a mere thing of wax in the hands of the judiciary” - he worried that the proliferation of loose constructionism would bring about an over-powerful judiciary.

Question 43

Arguments in favour of Originalism - Limited Government

Answer 43

• A loose constructionist approach to interpreting the commerce clause throughout much of the 20th century allowed for unprecedented expansion of the federal government, leading to the erosion not only of states’ rights, but also potentially of individual rights - it took an originalist decision in US v. Lopez (1995) to reverse this trend, thus protecting 2nd Amendment rights, by severly limiting the Gun-Free School Zones Act (1990).

Question 44

Criticisms of Judicial Activism

Answer 44

• Liberals criticise conservative activism on the grounds that it tends to allow for the continuation of unacceptable discrimination via the prioritisation of states’ rights over all other considerations, e.g. Shelby v. Holder (2013).
• Conservatives criticise liberal activism as it inevitably allows justices’ personal views to intrude on their judgement of cases, e.g. in his dissent in Atkins v. Virginia (2002), Justice Scalia warned that the court’s decision rested “obviously on the personal views of its members.” Conservatives also abhor the liberal activist tendency to “find” new rights in the Constitution, as in Roe v. Wade (1973), and to vastly extend existing ones, as in Lawrence v. Texas (2003), as they view it as undemocratic, and not in keeping with the Founding Fathers’ intentions for the country.

Question 45

Criticisms of Judicial Restraint

Answer 45

• Conservatives critique judicial restraint on the grounds that deference to the legislature and executive will allow for growth of the federal government far beyond its constitutional framework, primarily via subversion of the 10th Amendment and exploitation of the commerce clause, e.g. from the 1930s until 1995, no bill was struck down for exceeding the commerce clause, leading to a huge erosion of states’ rights, e.g. Katzenbach v. McClung (1964).
• Liberals contend that judicial restraint allows for infringement upon Constitutionally guaranteed civil liberties, especially at the state level, as the status quo is allowed to persist. Judicial activism is necessary in order to ensure that civil liberties are protected, as they must be in a self-proclaimed “liberal democracy,” e.g. Lawrence v. Texas (2003). Detrimental impact of restraint can be demonstrated by Korematsu v. US (1944), in which judicial deference to the executive branch allowed for internment of Japanese Americans.

Question 46

Demographics of the Judiciary

Answer 46

• Obama specifically cited the need for the judiciary to reflect wider society when explaining his nomination of Sonia Sotomayor, the court’s first Hispanic justice.
• It is claimed that George H.W. Bush’s choice of Clarence Thomas to succeed Thurgood Marshall was made at least partially out of a desire to maintain the court’s African American presence.
• The appointment of Elena Kagan to succeed John Paul Stevens in 2010 meant that there were no protestants left on the court - 3 Jews and 6 Catholics, meaning both religious denominations are vastly over-represented. No WASPs, who are the largest denomination in US society.

Question 47

How effectively have LGBT rights been protected?

Answer 47

• 14 states’ “sodomy” laws struck down by Lawrence v. Texas (2003)
• DOMA struck down in US v. Windsor (2013)
• California’s ban on same-sex marriage, established by Prop. 8 (2008) struck down in Hollingsworth v. Perry (2013). HOWEVER, the Court has declined to issue a nationwide rejection of bans on same-sex marriage, meaning that same-sex couples are still not allowed to marry in 14 states.
• Nevertheless, overall protection has been good - 70% of Americans now live somewhere where same-sex marriage is legal, and homosexual activity is completely decriminalised. However, conservatives/originalists would argue that this does not amount to good protection of constitutional rights, as they do not believe that LGBT rights are constitutionally guaranteed.

Question 48

How effectively has free speech been protected?

Answer 48

• Texas v. Johnson (1989) extended the definition of speech to flag-burning.
• NSPA v. Skokie (1977) protected freedom of assembly by allowing the American Nazi Party to march through a heavily Jewish area.
• Citizens Utd v. FEC (2010) further extended the definition of speech to spending money (by corporations as well as individuals), as was reaffirmed in McCutcheon v. FEC (2014).
• Snyder v. Phelps (2011) allowed the Westboro Baptist Church to picket the funerals of soldiers, provided they did not encroach on private property.
• Overall, protected very well - Johnson and Citizens Utd extended the definition of free speech (the latter dramatically), whilst NSPA and Snyder protected free speech from popular will - both the NSPA and the Westboro Baptist Church are highly unpopular groups. There have been no significant decisions to restrict 1st Amendment rights.

Question 49

The Imperial Judiciary - New Rights

Answer 49

Conservatives in particular would argue that by extending the individual rights enumerated in the Bill of Rights, as well as subsequent amendments, the Supreme Court is able to illegitimately extend its influence to cover new areas of public policy. E.g. the right to privacy “found” in the 14th Amendment in Roe v. Wade allowed the SC unprecedented influence over abortion rights and, subsequently, LGBT rights, as the same justification was given for the Court’s decision in Lawrence v. Texas (2003). Thus, the Court’s ability to find new rights in the Constitution allowed it to rule on two of the most contentious issues in contemporary politics. Unchecked extension of influence = Imperialism.

Question 50

The Imperial Judiciary - Lack of Accountability

Answer 50

• Once appointed, Justices have life tenure, meaning that they cannot be held accountable to either the public or the other branches of government.
• The Court has proven itself very willing to strike down legislation that has rock-solid legitimacy and overwhelming support, e.g. Shelby v. Holder (2013) struck down a section of the Voting Rights Act (1965) which had been reauthorised in 2006 with only 33 votes against it, all of which were in the House.

Question 51

The Imperial Judiciary - Breadth of Influence

Answer 51

• The Supreme Court is able to rule over public policy at all levels and branches of government:
• Local: McDonald v. Chicago (2010) - forced the city to remove its overly restrictive regulations on gun ownership.
• State: Lawrence v. Texas (2003) - struck down Texas’ prohibition on homosexual activity, along with similar laws in 13 other states.
• Congress: US v. Windsor (2013) - struck down the longstanding Defence of Marriage Act (1996).
• Executive: Hamdan v. Rumsfeld (2006) and Boumedeine v. Bush (2008), the combined effect of which forced the executive to significantly alter its policy with regard to Guantanamo detainees.

Question 52

The Imperial Judiciary - Personal Views

Answer 52

Supreme Court justices are often accused of allowing their own personal and political views interfere with their judgements. E.g. Bush v. Gore (2000) essentially decided the 2000 Presidential Election for Bush in a 5-4 decision - the court’s 5 most conservative members formed the majority, and were accused of holding a Republican bias. Scalia’s opinion in Atkins v. Virginia (2002).

Question 53

The Non-Imperial Judiciary - Judicial Restraint

Answer 53

Justices have been known to make significant decisions with a distinct lean towards judicial restraint. This may manifest itself in two forms: firstly, the justice may explicitly keep their own views separate from their decision, e.g. Roberts’ opinion in NFIB v. Sebelius (2012) stated that he considered Obamacare to be a “very bad law,” but did not see that its stipulations were explicitly unconstitutional.

Secondly, the court may show deference to the other branches of government, e.g. Justice Hugo Black’s opinion in Korematsu v. US (1944) specifically cited deference to the executive in a time of war as the primary reason for allowing the internment of West-coast Japanese Americans to continue.

Question 54

The Non-Imperial Judiciary - Activism is not Imperialism

Answer 54

Liberals argue that by striking down legislation which is perceived to violate constitutionally guaranteed rights, the Court cannot be considered to be overstepping its powers, but instead is simply fulfilling its intended role of applying the Constitution. E.g. Reed v. Reed (1971) and US v. Windsor (2013) extended the equal protection clause of the 14th Amendment to cover women’s and gay rights respectively.

Question 55

The Non-Imperial Judiciary - Lack of Enforcement Power

Answer 55

The Court has no power to enforce its rulings - if there is no political will for this, it may simply not happen, e.g. Brown v. Board (1954) did not achieve immediate desegregation of schools as there was no political will in the Southern states to enforce the ruling - Johnson forced to authorise the use of the national guard to achieve desegregation in the Civil Rights Act (1964) - 10-year gap between ruling and effect. This represents a significant check on the Court’s ability to exert its influence on American society.

Question 56

The Non-Imperial Judiciary - Checks on Power

Answer 56

Checks on the Supreme Court are limited, but do exist:

• President can influence the ideological position of the court through the appointment process, e.g. George H.W. Bush engineered a conservative shift through the replacement of Thurgood Marshall with Clarence Thomas, which manifested itself in the Rehnquist court’s landmark commerce clause decisions. The recent increase in conservative activism can be partially attributed to the fact that 17 of the last 23 Supreme Court nominations have been made by Republican Presidents.
• Congress and the States can pass a constitutional amendment to supersede a Supreme Court decision, e.g. the 16th Amendment (1913) allowed the federal government to levy an income tax without apportioning it amongst the states, a practice previously outlawed in Pollock v. Farmers’ Loan and Trust Co. (1895).
• Justices can be impeached, like any other public official. Whilst no justice has been impeached since 1805, the threat of impeachment can be equally effective, e.g. Abe Fortas resigned in 1969 in order to avoid the ignominy of being impeached for financial impropriety.

Question 57

The Non-Imperial Judiciary - Constitutional Intentions

Answer 57

It can be argued that an activist judiciary, that is willing to strike down popular and democratically enacted legislation, is simply fulfilling its constitutionally allocated role as a check on unfettered democracy. Many aspects of the original Constitution are indicative of a general wariness of democracy, with Founding Father John Adams coining the phrase “tyranny of the majority” to express this wariness. Therefore, by complaining that the Supreme Court is overly powerful, one takes issue not with the court specifically, or its perceived imperialism, but rather with a core principle of the Constitution, a position which would be far harder to justify, given Americans’ affinity for the document.