Unit 4 - The Judicial Flashcards
What is the Supreme Court?
The highest federal court in the USA. It is the final court of appeal and is responsible for interpreting the Constitution (what the constitution means in this scenario)
What does the Supreme Court do?
-It does not concern itself with innocence or guilt but what the Constitution means in relation to these cases
-They are asked to review 7,000 cases a year and agree to hear 100-150 which they deem to be of constitutional importance
-It is allowed to declare laws passed by Congress or the state legislatures and actions of the executive unconstitutional (judicial review)
What are the 3 types of courts in the US? (In order of the hierarchy)
- US Supreme Court
- US Courts of Appeals (circuit courts)
- US District Courts
What is the make up of the current Supreme Court? (Split into conservatives and the liberals)
- Kavanaugh - Trump
- Thomas - Bush Jr
- Alito - Bush Jr
- Coney-Barrett - Trump
- Gorsuch - Trump
- John G Roberts (chief justice) - Bush
- Sotomayor - Obama
- Jackson - Biden
- Kagan - Obama
Can justices be politically involved?
Justices CANNOT be politically involved - they arent necessarily members of party but they typically lean a certain way
What are the roles of the Chief Justice?
-The chief justice is responsible for chairing the court and decides who will write opinions (the decision on the case and why they made this decision) on cases where he is in the majority, influencing the character of the judgements the Court makes
-They also administer the oath of office at presidential inaugurations
-Chair presidential impeachment trials in the Senate
-The Court is also named after them
What is the current supreme court called?
Roberts Court
How are many votes made in the Supreme Court?
-Many votes are made on ideological grounds, e.g. Rucho v Common Cause (2019) where the Court voted 5-4 that partisan gerrymandering was not unconstitutional (those who voted each way were ideologically alike)
-However, rulings are technical legal interpretations and therefore not political - not on politically ideological grounds, but legal ideological grounds
What is a swing vote? Example?
-justices who don’t always vote either conservative or liberal, but fluctuate 8
-e.g. Anthony Kennedy (appointed by Reagan) frequently made conservative judgements but also some liberal judgements, writing the majority opinion for Obergefell v Hodges (2015) (allowed gay marriage)
-e.g. Chief Justice Roberts was the swing vote for the 2019-20 term
What statistic shows that there are more swing voters than expected? What does this show?
-from 2018-2019, less than 50% of 5-4 decisions had all five conservatives in the majority
-they made decisions against Trump, such as overruling his attempt to end Deferred Action for Childhood Arrivals (DACA) - immigrant children entering the US illegally
-not necessarily always vote based on ideological grounds
Is the Supreme Court diverse? Why/why not?
-criticised for its lack of diversity
-The first woman was Sandra Day O’Connor in 1981
-only three black Americans have ever sat on the Court
-Ketanji Brown Jackson is the first black female
-Sotomayor is the first and only Hispanic
What happened to balance in the Supreme Court in 2016? Why? What did this mean?
-In 2016, the balance was 4-4
-McConnell didnt let Obama appoint another judge at the end of his term as he argued that the republicans should do so due to their control in the house and senate - hypocritical as Trump was allowed to appoint at the end of his first term
-meant that the Deffered Action for Parents of Americans was upheld and blocked Obamas key immigration policy
What are the 4 stages of the nomination process?
- Vacancy
- Search
- Announcement
- Confirmation
What is in the vacancy stage of the nomination process?
-Roughly every 2 years, a vacancy comes up
-Could be the result of death, retirement or impeachment
What is in the search stage of the nomination process?
-The president usually already has a list of suitable candidates ready if a vacancy is anticipated
-President seeks advice from advisers especially in the Democrats e.g. the America Bar Association may ask for advice from personal friends too
-Courts of Appeals most likely pool employment - Elena kagan is only exception in last 3 decades - but there are others like state courts or the department of justice
-President must be confident they have support in senate
What is in the announcement stage of the nomination process?
-FBI background checks happen
-Finalists interviewed by President
-Formal announcement
-ABA (American bar association) rates them - this is a tradition - Clarence Thomas was the only one who didn’t receive a well qualified rating and was still appointed - looks at their experience and education
What is in the confirmation stage of the nomination process?
-Senate Judiciary committee (standing com) assesses suitability through interviews
-Can result in withdrawal by the president e.g. Harriet Miers withdrew after criticism of her ideologies from Republican senators - 10 withdrawn since 1789 and 12 rejected
-Committee refers nominees to senate
-Simple majority required since 2017 (nuclear option)
Reasons for why the nomination process is fit for purpose?
-Background checks by the FBI and the ABA and the senate committee make sure the candidates have undergone scrutiny - scrutiny by several branches of
-Opportunity for withdrawal of unsuitable candidates
-Senate checks power of the president
-Some nominees dont follow philosophies of elector
-Senate Judiciary Committee - experts in judicial matters
-Court has a range of conservative and liberal justices - balanced
Reasons for why the nomination process is not fit for purpose?
-Too politicised - president will choose based on their philosophy and the senate being a political body and having a large influence, media also politicises
-Pressure groups can sway opinion - Coney Barretts appointment were pro and anti choice groups were trying to influence the appointment
-Public scrutiny e.g. Thomas and Kavanaugh confirmed even with sexual assault allegations
-If the president and congress are from the same party, they ask soft questions
-Refusals to consider some nominations e.g. Merrick Garland - Obama tried to appoint him near the end of term but wasnt allowed as it was too late - links to lame duck presidency
-Simple majority required since 2017 - increase in partisanship - votes on judges were usually unanimous but coney Barrett was opposed by all democrats and one Republican
What are the constitutional roles of the SC?
- Interpreting the constitution
- Protecting citizens rights
What is the strict constructionist approach? Examples?
-A judicial approach in which the text of the constitution is followed as closely as possible when making judgements and should be interpreted strictly according to what it says as its a precise legal document that is rarely changed so interpretations shouldn’t depart from the meaning of the text even in modern rulings - typically conservative
-Closely associated to originalists who used the langauge of the constitution according to the original intentions of the founding fathers
-E.g. Antonin Scalia (1986-2016) who said the constitution doesnt mean what current society thinks it should mean but what it meant when it was adopted
-E.g. Coney Barrett is an originalist as well as Kavanaugh and Gorsuch
What is the loose constructivist approach? Examples?
-A judicial approach where the constitution is interpreted more loosely, according to modern context rather than the precise meaning of the founding fathers - allows the document to evolve over time and say that the constitution is living (should be interpreted according to needs of modern society) - typically liberal
-E.g. Bader Ginsburg and Stephen Breyer
What are the strengths and limitations of strict and loose constructionism?
-Strengths: provides a concrete legal basis, focuses on original intentions why it was created
-Limitations: outdated, doesnt apply to all modern circumstances
-Strengths: allows for changes
-Limitations: there must be legal basis
What is judicial activism?
An approach which holds that judges should use their position to promote desirable social ends, advocating reform rather than focusing on what the constitution prohibits - typically lose constructionists