The Supreme Court and civil rights Flashcards
Evaluate the view the the SC has become an imperial judiciary
For:
- SC dominates issues of paramount importance particularly social issues e.g. Roe v Wade
- Once appointed, judges has security of tenure and May vote in court ways that are at odds with the impression they created during confirmation hearings e.g. Reagan appointee Kennedy who has arguable voted in a liberal way on some issues due to his belief in judicial restraint (Obergefell v Hodges)
- Some would say that some of the rights which the court has established in recent years only have a tenuous basis in the constitution e.g. Obergefell v Hodges
Citizens United vs FEC 2010 declared large swathes of the campaign finance law unconstitutional. It is felt that this decision will benefit Republicans, who tend to receive money from corporations. It is politicised as Citizens United vs FEC overturned McConnell vs FEC. This is because a Republican had been appointed, giving a Conservative majority
Against:
Federalism means that the individuals rights of states have been able to limit the influence of these supposed ‘imperial decisions’ e.g. Roe v Wade faces threats locally, states have enacted more than 1000 laws restricting the procedure
- There is a need for justices to give at least some regard to public opinion and the political context e.g. Brown v Board of Education Topeka
- Court must intervene to strike down legislation sometimes if basic rights are to be maintained e.g. Engel v Vitale - school prayer
1) check on SC:
congress can propose constitutional amendments - to in effect overturn a decision of the Supreme Court. for example, in 1896 the Supreme Court declared federal income to be unconstitutional, but congress proposed the 16th amendment granting congress the power to levy income tax. it was ratified and became operational in 1913.
however the nature of the US constitution makes it extremely difficult to amend. this makes the ability of congress to propose constitutional amendments a weak and ineffective check on the judiciary much more potent power of the judicial review.
Check on SC
the congress posses the power of impeachment, trail and removal from office of members found guilty of misconduct. 8 members of the judiciary have been successfully impeached.
the presidential power can overturn judgments of judiciary. it has become increasingly controversial owing to claims of abuse
evaluate the extent to which the supreme court is more powerful than congress and the presidency
The president is the most powerful branch of government and can be seen acting influentially over the Supreme Court.
trump appointed strict conservative judges. by the end of 2020, trump had been able to nominate 3 justices to the supreme court in just one year 4 year term. Trump with his first Supreme Court nominee, Neil Gorsuch. Trump with his second Supreme Court nominee, Brett Kavanaugh. Trump with his third Supreme Court nominee, Amy Coney Barrett.
The extent to which this gives power to an individual president is arguably very limited, however. Most presidential appointments make little or no difference to the overall ideological balance of the Court. This is partly because Justices choose when to retire and typically do so when they are ideologically aligned with the current president
The Supreme Court is only able to respond to cases put to it, they can’t introduce legislation
e.g Conservative justices have expressed a desire to overturn Obergefell V Hodges and outlaw gay marriage but they haven’t been able to as the appropriate case hasn’t come up
in contrast, the President and Congress can be much more reactive and are able to pass laws on issues they feel strongly about
therefore, although the SC can do judicial review, they have a lot of limitations on their power
the SC has the power of judicial review, which is a powerful tol for judges
gives them power over key areas like civil rights, abortion and gun control
Supreme Court decisions are final and are not subject to further review, unlike the President and Congress
they have the power to directly adress the people
as the Head of State, the President has the largest platform available to influence the people of America, e.g Bush’s speech on the Iraq War
the President gives the annual State of Union adress laying outt their priorities e.g Obama announcing Obamacare
the SC do not have a similar platform
justices have the ability to influence in the same way as the President through verdicts
e.g Ruth Bader Ginsburg was a liberal minded court justice, and even when she was of the minority, her verdicts were used as guidance
evaluate the extent to which the Supreme Court can rightly be described as a political institution
appointment process is politicised
trump appointed strict conservative judges. by the end of 2020, trump had been able to nominate 3 justices to the supreme court in just one year 4 year term. Trump with his first Supreme Court nominee, Neil Gorsuch. Trump with his second Supreme Court nominee, Brett Kavanaugh. Trump with his third Supreme Court nominee, Amy Coney Barrett.
however
senate are meant check the judge - in 2005, George W Bush initial nominee, Harriet Miers, withdrew before formal confirmation hearings, when it became clear she would not secure enough votes. this was due to opponents within bush own Republican Party, who felt she lacked both experience and the conservative. in march 2016, conservative justice Antonin Scalia died. baa now nearing the end of his second term as president nominated a moderate and experienced appeals court judge, Merrick Garland to fit the vacancy. the republican controlled senate simply declined to hear the nomination. arguing it was too close to the November election. background checks on trumps nomination of Brett kavanaugh in 2018, allegations of sexual assault while at high school.
2.It can also be said that it is a political institution as the Supreme Court has the power to create new constitutional rights such as the Roe v Wade case which looked determined abortion as being legal.
Therefore, the Supreme Court is able to make decisions on controversial issues that most politicians steer clear of and in turn affect the laws of many states such as Texas in which there were strict abortion laws stating that a doctor needed to determine that the mother’s life was in danger before they could get an abortion.
As well as this, the Supreme Court has been seen to settle other largely political decisions such as determining the outcome of the 2000 presidential elections between Bush and Gore. The controversy over the counting of the votes in Florida meant that the Supreme Court was to revsolve the decision, stopping a recount that had been initiated upon a ruling by the Florida Supreme Court.
That in turn gave Bush a majority of votes in the Electoral College and led to him winning the presidential election. Therefore it can be seen that the Supreme Court is a political institution in parts as they decide the outcome of many political cases.
Yet can be seen that most of the cases the Supreme Court hears are not political and instead the Court hears cases where only matters of law are at issue, deciding if the law has been correctly applied.
Therefore it can be viewed that the Supreme Court is only a judicial institution due to the fact they hear cases that generally involve very important and difficult issues of law, rather than just settling political disputes.
3.The Supreme Court can also be seen as being a political institution because justices have to be aware of public opinion and this will most likely impact the decisions they make, therefore they have to appear as if they are making decisions that are in the public’s interest rather than the interest of the politicians and judges alone. This is important in the way in which the Supreme Court is viewed, as they do not want to appear out of touch.
This view of the court has been seen in the past as they were viewed in this light after the decision to strike down New Deal legislation in the 1930s which made the impression that Judges were out of touch from ordinary people; therefore undermining the status of the Court. However the extent that this makes the Supreme Court a political institution is limited as the Supreme Court does not always have to ensure they get the public’s approval as they are not elected by the people and so therefore are not relying on their opinions for re-election.
This can be seen through the way the Court is forced to make decisions on sensitive cases that are often divided among public opinion. For example, the court ruled in the Brown v. Board of Education that it is unconstitutional for states to establish separate schools for blacks and whites. This was a highly controversial issue, that divided many and shows how the Supreme Court does not always take the opinion of the people as an influential factor and instead primarily decide if the law is being correctly applied.
However, it can be seen that despite this, the Supreme Court is largely political due to the fact the justices will be aware of public and political reactions to their decisions so will therefore keep this in mind.
evaluate the extent to which affirmative action has been successful
It works- 86% of African Americans finish high school (two times the levels in the 1960s), also university graduation is up 10% to 15%, so it should continue
Delivers equality of opportunity- it is an effective means of delivering what it was arguably designed to do, because there continues to be high levels of inherent racial prejudice in America: unemployment is considerably higher in black communities up to 50% in NY and Chicago
Creates opportunities for minorities- by creating aspiration amongst the young, in 1970s 15% of African Americans were white collar workers, in 2010 it was up to 70%
Creates racial diversity and tolerance- promotes tolerance and acceptance for future leadership by minorities, see the Michigan Mandate
Creates diversity- this is better for society, 35% of federal employees are of ethnic minorities, including 18% African American (this is over-representation)
It is justified- People of colour in America have been historically socially wronged, see through ‘Separate but equal’
Disadvantages
Creates ill-equipped minorities- individuals end up in institutions and workplaces that they are not equipped for, this causes them to be disadvantaged and quite often drop out, see the 2004 Stanford Review
It undermines America’s meritocracy- generalises the group and removes individual achievement and identity
Its condescending- suggests that minorities would be incapable of achieving without a helping hand and so detracts from their achievement
It perpetuates the racial focus- America needs a colourblind society and “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race” said by current chief justice of the Supreme Court John Roberts
It is still a quota system- (this was declared as unconstitutional by the Supreme Court,) institutions feels as though they have to consider race, so they have to have minorities, meaning they will perhaps unintentionally create indirect quotas, see the Bollinger cases and 2007 Meredith v. Jefferson County
Creates tension between the group and the individual- there is conflict between the worth of an individual and the identity of the group, the individual’s worth becomes intrinsically tied to their race and ignores their potential economic advantage (due in part to the rise of the Black middle class), see 2003 Gratz v. Bollinger
The advantage = disadvantage- disadvantages the racial majority, Fisher v. Texas 2013 & 2016
Evaluation
Enough evidence/ arguments to be successful either way in an essay. Take note of the public opinion though:-87% of Blacks said they had felt no impact from affirmative action. - 72% of people disagreed with using preferential treatment. - 13% of Whites felt they had been hurt by affirmative action. - 8% of Blacks felt they have been hurt by affirmative action. - Only 47% of Americans felt affirmative action was fair. - But 63% of Americans were in favour of programs which overcame past discrimination. Overall public opinion sees affirmative action in principle as a good thing, but also in need of reformation.
Evaluate the view that presidential appointments to the Supreme Court ensure it is a political body rather than a judicial one
Paragraph 1:
The appointment process is politicised
Presidents will appoint justices who will likely align with their views for example a Republican will appoint a Conservative justice, and a Democrat will appoint a liberal justice
Obama appointed Sotomayor and Kagan
Obama also was a senator in 2005 and voted against the appointment of Chief Justice Roberts, who is a conservative justice and was appointed by President Bush, a Republican
Obama stated that a when the constitution is hard to apply, a justice’s personal and political views will have a role to play
Trump, a Republican, appointed Brett Kavanaugh, Amy Coney Barrett and Neil Gorsuch
Trump appointed Barrett after the death of Ginsburg in 2020, and this led to a Conservative majority 6-3 in the S.C
Paragraph 2:
Appointment process is politicised because of decisions being overturned
Eg the McConnell vs FEC 2002-03 case regarding the Bi-partisan campaign reform act stated that campaign finance must be reformed
Limited donations by big corporations
In 2002-03, there was a liberal majority in the S.C and they favoured limits on campaign finance and advocated for reform
Sandra Day O’Connor was a liberal justice retired and was replaced by Alito, a conservative justice appointed by Bush, a Republican
Citizens United v FEC 2010 overturned McConnell vs FEC as the limit on spending infringed the 1st amendment
Donations were unlimited and corporations could donate huge sums of money
Shows the S.C is politicised as the appointment of Alito gave a conservative majority and the Republicans favour unlimited donations
EVALUATION: Obama in 2012 was a Democrat and raised the most money and spent the most
Obama benefitted from the decision of Citizens United v FEC as he won the 2012 Presidential election and served his second term
Paragraph 3:
The appointment process can still be judicial
Eisenhower appointed two justices, Justice Brennan and Justice Warren
The appointment of Chief Justice Warren and Justice Brennan was a failed politicised appointment process which led it to be a judicial one
Eisenhower was a Republican president which would have led to him appointing a Conservative justice
However, Warren and Brennan proved to be more liberal
Eisenhower stated, “biggest-damned foolish mistake he has ever made”
Warren and Brennan allowed for a liberal majority under a Republican president and reversed segregation in schools through Brown vs Board Topeka 1954
Reversed Plessy v Ferguson 1896 with Brown v Board of Education
