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 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
What is judicial restraint?
Judges should defer to the legislative and executive, and precedent when making decisions, making them more inclined to leave things as they are - typically strict constructionists
What did Marbury v Madison do?
-1803
-Established judicial review - ruled that the SC must check Congress against the constitution
-SC is equal to and independent to congress and the president
-Protected citizens rights - protected bill of rights - can declare something as unconstitutional
What is judicial review? What was it set out in
-The process of ensuring that the legislature and the executive do not exceed their constitutional powers - Set out in Marbury v Madison
What does judicial review include? How does this impact the SC?
-Striking down laws seen to be at odds with the Constitution e.g. Defence of Marriage Act (United States v. Windsor, 2013) – invalidated the part that denied federal recognition of same-sex marriages
-Ruling against actions of the government e.g. Obama eo to recognise 5 million immigrants
-A check on presidential power e.g. Nixon not wanting to hand over documents even though he was subpoenaed
-Checking that civil rights and liberties are not being infringed e.g. Brown V Board
-Gives the Court political importance even though not a political body
-Makes it a quasi-legislative body - somewhat passes laws - rulings have the same impact as a law
What was the bill of rights? What has the Supreme Court got to do with it?
-The first ten amendments to the Constitution
-Includes freedom of religion; freedom of speech; gun control’ and capital punishment
-Supreme Court’s job to decide what it means today
What were 2 Controversial Landmark Rulings?
- Brown v Board of Education of Topeka (1954)
- Obergefell v Hodges (2015)
What was Brown v Board of Education of Topeka 1954 about?
-The case was about desegregation in public schools and whether segregation in public schools is constitutional or not as it violated the Equal Protection Clause of the Foruteenth Amendment
-segregated schools made black children feel inferior to white children
What was Brown V Board 1954 ruling? What did it lead to? Why was it controversial?
-The ruling was that ‘separate educational facilities are inherently unequal’
-it overruled the ‘separate but equal’ doctrine of Plessy v Ferguson 1896 and expanded the civil rights movement due to increasing awareness of racial inequalities (leading to further desegregation) and ended segregation in school - discredited the racial caste system (social class based on race that creates a hierarchy).
-whites in south resisted the ruling - plan created called ‘massive resistance’ to stop desegregation
What was Obergefell v Hodges 2015 about? What did the SC rule? Why was it controversial?
-it was about whether same sex marriage should be allowed in all states
-Ruled that banning same sex marriage in states was unconstitutional - right to marry is inherent and is therefore protected of the due process clause in the 14th amendment
-Controversial because of religious reasons
-controversial as many argued that states should have a say in legislation on same sex marriage and that it should not be a federal issue
What 4 amendments has the Supreme Court protected the rights within?
- The First Amendment: Freedom of Religion
- The First Amendment: Freedom of Speech
- The Second Amendment: Gun Control
- The Eighth Amendment: The Death Penalty
What does The First Amendment: Freedom of Religion say?
‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’.
How has the Supreme Court protected the rights within The First Amendment: Freedom of Religion?
-Evangelical Christian’s argued that the Supreme Court ignore the fact that free exercise of religion shouldn’t be prohibited
-1960s-80s - SC gave a number of rulings against overtly Christian practices in state schools - established a religion
What was one key case for The First Amendment: Freedom of Religion?
-Burwell v Hobby Lobby Stores Inc. (2014)
-The owners of hobby lobby operate it around Christian faith and explicitly expressed that contraception being immoral
-So refused to provide preventative care in their employment based group healthcare plans, even though this is a requirement under the ACA
-asked whether through the Religious Freedom Restoration Act of 1993 they were allowed to do this based on religious grounds
-Ruled 5-4 in favour of Hobby Lobby Stores, arguing that the law offered other ways to ensure access to contraception and that forcing Hobby Lobby to provide contraception, infringes on their right to religious freedom
What does The First Amendment: Freedom of Speech say?
‘Congress shall make no law… abridging the freedom of speech of of the press’
How has the Supreme Court protected rights within The First Amendment: Freedom of Speech?
-Buckley v Valero 1976, SC rules limits on expenditure by presidential candidates unconstitutional as it infringed freedom of speech
-2014 ruling of McCutcheon v Federal Election commission discussed what is ‘speech’ and what is ‘abridged’
What is a key case for The First Amendment: Freedom of Speech?
-Janus v American Federation of SCM Employers (2018)
-Argued that the law that allowed unions representing public employees to charge fees to all employees they represented, even those who didn’t join the union as they fought for the rights of all of the employees, was unconstitutional as it compelled employees who disapproved of the union to contribute money
-asked if Abood v. Detroit Board of Education shouldbe overturned so employees who do not belong to a union cannot be required to pay a fee to cover the union’s costs to negotiate a contract that applies to all employees
-Ruled 5-4 in favour of Janus (the law was unconstitutional) - as an individual shouldn’t be required to endorse ideas they disagreed with which went against the first amendment
What does The Second Amendment: Gun Control say??
‘A well regulated Militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed’
How has the Supreme Court protected rights within The Second Amendment: Gun Control?
-2008 - first ruling - original intent
-Two interpretations: (1) amendment guarantees collective rights to own guns (by the state so for police etc.) (democrats) and (2) individual right to own guns (republicans) - ruled in favour of the latter
What is a key case for The Second Amendment: Gun Control?
-District of Columbia v Heller (2008)
-District of Columbia made it illegal to carry an unregistered firearm and prohibited the registration of handguns even though the chief of police could issue one year licenses for handguns
-Heller applied to hold the handgun at home but this was denied - argued it went against his second amendment right to keep a firearm in home without a license
-Ruled 5-4 in favour of Heller, ruling that the amendment guarantees and individual right to possess and carry weapons as the term ‘militia’ in clause 1 referred to an able bodied man
What does The Eighth Amendment: The Death Penalty say?
‘Cruel and unusual punishment’
How has the Supreme Court protected rights within The Eighth Amendment: The Death Penalty?
-21 states dont use death penalty but the SC made rulings on this including issues such as the age the death penalty can be handed down
-Ruled on method of execution which is considered to be a key issue as if death by legal injection was ruled unconstitutional, this could pave the way for many states to remove death penalty
What is a key case of The Eighth Amendment: The Death Penalty?
-Ring v Arizona (2002)
-At Ring’s trial for murder, he couldn’t be sentenced to death as the jury didnt convict him of premeditated murder, so wasnt eligible for death penalty, the judge found that he was the killer, even though he had a minimal criminal record, so was sentenced to death
-Ruled 7-2 arguing that yes, only a jury can rule if there are aggravating factors present to allow the use of the death sentence, not the judge and that it didnt allow for the right to a jury trial - his death penalty was unconstitutional
What is public policy?
The beliefs that society holds about a certain policy area that then impacts the law - the principle upon which social law is based
What areas of public life can the Supreme Court impact?
-Federalism
-Civil rights
-Race
-Gender
-Punishment
-Abortion e.g. Roe v Wade
-Education
-Healthcare
Timeline of how the Supreme Court shaped public policy on abortion?
- Roe v Wade 1973
- Planned Parenthood v Casey 1992
- Gonzales v Carhart 2007
- Whole Women’s Health v Hellerstedt 2016
- Trumps Conservative Court
What was Roe v Wade 1973? How was it relevant to abortion? What was the ruling? What is its significance?
-Relevant to abortion because the fourteenth amendment says ‘personal choice in matters of family life’ and legalised it saying that it includes ‘the right of a woman to decide whether or not to terminate her pregnancy’
-Division between democrats who were pro choice and republicans who were pro life
-7-2 vote in favour
-Unelected justices legislating from the bench
-It had a big significance of the whole of the US even when it was overturned - protests, people want to go back to it - greater significance now than before
What was Planned Parenthood v Casey 1992? How was it relevant to abortion? What was the ruling? What is its significance?
-Upheld the rights of states to regulate abortion in early stages if it wasn’t an ‘undue burden’ and didnt create problems for the individual seeking an abortion
-Many hoped it would overturn Roe
-Declared stare decisis - legislating in line with precedent
-Increased power of the states
-It ruled that a woman’s right to abortion was established in Roe
-It increased the power of the states, and limited abortion unless it caused a burden on the woman - this made it easier to ban abortion, making it have a large significance as it could impact more people
What was Gonzales v Carhart 2007? How was it relevant to abortion? What was the ruling? What is its significance?
-Ruled 5-4 in favour of the Partial Birth Abortion Ban Act of 2003 - banned late term abortions that required the crushing of the skull - found unconstitutional by lower courts but SC ruled in favour
-No exception made for the health of the woman
-Conservative interest groups changed their goal to the chipping away of abortion rights rather than full overhaul
-O’Connor replaced by Alito - more conservative court
-Supreme Court agreed with congress
-It has a big significance as it stopped late term abortions for all women, which restricted access to certain types of abortions, it impacted all women and meant that some clinics had many issues as they couldn’t run for a period ot time as they didnt make money - limiting access for some to abortion in general
What was Whole Women’s Health v Hellerstedt 2016? How was it relevant to abortion? What was the ruling? What was its significance?
-Opposition to strict abortion clinic laws in Texas arose - laws required all clinics to meet a certain standard and other restrictions
-Abortion clinics dropped from 41 to 20 as a result of the law
-5-3 decision against the Texas laws with Kennedy as the swing vote - appeal court took the contrary view so would’ve resulted in the opposite ruling if there was a tie
-Setback for conservatives
-Increase in abortion rights
-It just had an impact on Texas, and there were still abortions allowed - it didn’t have much of a significant impact on all women
What is Trumps Conservative Court? How was it relevant to abortion? What was the ruling? What was its significance?
-Trump appointed 3 justices - all conservatives - Robert’s court was now conservative
-24th June 2022 - SC overturned Roe v Wade in Dobbs v Jackson Women’s Health Organisation - abortion banned in many states as each state could decide what their policy on abortion was e.g. Alabama - Planned Parenthood v Casey was also overturned
-Led to an increase in consideration for other landmark rulings to be reconsidered
-Extremely significant - impacting all - but impacted some more than others depending on what the majority of each state believes
Reasons why the SC is an effective shaper of public policy?
-Rulings are federally recognised - influences everyone
-Judicial review - scrutinises public policy and are able to interpret the constitution through this - means that they have a large influence on public policy
-Can rule on key political debates
-Many rulings have the same effect as passing a law
-Legislation can be overturned by executive and judicial
-Rulings can only be repealed by the SC
-Harder to overturn legislation than rulings
-Amendments are permanent
Reasons why the SC is not an effective shaper of public policy?
-Rulings arent permanent - they can be overruled
-If ideologies shift, rulings can be overturned - the make up the Supreme Court can affect this and changing composition
-More political than it should be
-Have to wait for cases to come to it before it does anything - reactionary
How does the Supreme Court check power?
-Can override executive orders
-Judicial review - check the executive
-Can deem actions as unconstitutional
-Can strike down laws passed by congress or state legislatures
-Can rule against actions of the federal or state governments
-Can check presidential power e.g. trumps travel ban was unconstitutional
-Prevents civil rights and liberties being infringed by executives and legislatures
Reasons why the Supreme Court is powerful?
-Makes decisions on a federal level
-Protects the rights of citizens, or can remove their rights
-Acts as a protector from tyranny - overrules executive orders
-It has given itself the power of judicial review
-Has made decisions which are out of line with the majority of the public opinion - they can rule based on what they think is right - powerful
-unelected - dont have to worry with being elected again so not forced into voting a certain way - ensures independence - unaccountable
-Has abused its power to bring about significant public policy changes - legislates from bench
-When justices believe in a living constitution - loose constructionism
Reasons why the Supreme Court is not powerful?
-must wait for a case to go to them before they can make a ruling on it - can take years
-Justices can be impeached - Clarence Thomas?? - Samuel Chase in 1804
-Congress can override its decision through constitutional amendments
-Congress has the power of impeachment - dont have that power
-It is dependent on the rue of law and other branches to enforce its deacons e.g. Brown v Board - many state legislatures ignored this and had to wait for another ruling to enforce this fully
-Public opinion can restrain its power
-Checked by the words of the constitution - e.g. gun rights, the constitution says gun rigths must exist so SC cant rule against it even if it causes harm to others
Reasons why the Supreme Court is a political institution?
-Decisions have great effects - Brown v Board of education 1954 or Roe v Wade - have a lot of political influence - landmark rulings play a role in relationship of the public with the gov
-Nominations are presidential opportunities that require advice and consent from the Senate - presidents appoint those who have views - Senate also has too much of a say
-Nomination and confirmation process is highly politicised
-Most judges tend to either make conservative or liberal judgments - very few are swing voters
-Share political stance of the president that appointed them
-‘Third house of legislature’ - arguments that it makes the law not just interprets it
-Some rulings act as a dividing line between liberals and conservatives such as roe v wade
Reasons why the Supreme Court is a not political institution?
-Must be experienced - justices are neutral with rulings - provide legal reasoning
-There are swing voters - not partisan figures - vote as they wish, for example, Kennedy was a swing voter - makes him the justice that ultimately decides the law
-Justices are independent and free from political influence once appointed
-Decision made on the basis of a legal argument not political principles
-Some justices dont reflect the stance of the present that appointed them e.g. Souter OR vote against the presidents interests e.g. Gorsuch or Kavanuagh
-Congress can check the court if it is too political - can initiate a constituonal amendment to overall the courts decision
What are the 4 topics one can look at to compare the judicial branch of both the US and the UK?
- History and justices
- Impact on government and politics
- Bases and extent of powers
- Relative independence
What are the 5 subtopics one can look at to compare the judicial branch of both the US and the UK within history and justices?
- History
- Selection and appointment of justices
- Characteristics of justices
- Tenure of justices
- Judicial approach
How can one compare the judicial branch of both the US and the UK based on its history?
US
-Intended to provide independent judiciary that was separate from the other two branches
-Included in constitution – integral part of the republic
UK
-Intended to provide independent judiciary separate from other two branches
-created in 2009 - stopped UK Law Lords in the Appellate Committee of the HoL - not independent from parliament
How can one compare the judicial branch of both the US and the UK based on its selection and appointment of justices?
US
-they are political appointees nominated by the president and confirmed by senate
-Highly politicised - President appoints based on ideology - Thomas always votes conservative
-Scrutiny is present in both nomination processes - ABA, and senate judiciary committee
UK
-they are selected by an independent commission before being president to lord chancellor (secretary of justice) for approval who then gives the name to the PM - can reject names
-independent with less media involvement
-scrutiny through the independent judicial commission
How can one compare the judicial branch of both the US and the UK based on the characteristics of justices?
US
-No official requirement to be a Supreme Court justice – but modern appointees usually have significant legal or judicial experience
-Women and ethnic minorities are underrepresented – but has a higher proportion of women (never had a female chief justice) – 3 justices of ethnic minorities
-More diverse than UK – could be due to higher proportion of women and ethnic minorities in lower courts
UK
-UK justices must’ve been a senior years or be a solicitor judge for at least 2 for one of UK’s highest courts for 15 years
-Underrepresented women (only 2 women) and ethnic minorities (just white people)
-UK had a female president – Lady Hale – 2017-2020
-No justices of ethnic minorities
How can one compare the judicial branch of both the US and the UK based on the tenure of justices?
US
-Security Of tenure – can only be removed during term for wrongdoing by impeachment – gives independence
-Life tenure
-Can be difficult for justices to retire e.g. Breyer would’ve been anxious to vacate seat during trump as trump would’ve appointed conservative
UK
-Security Of tenure – can only be removed during term for wrongdoing by judicial complaints procedure – gives them independence
-Must retire by 70 years of age – arguments that it forces people out in their prime like Lady Hale
How can one compare the judicial branch of both the US and the UK based on its judicial approach?
US
-Mainly conservative justices use judicial restraint
-Some US justices believe their role is to interpret living constitution in a modern context – loose constructionism – leads to judicial activism – make decisions to improve society
UK
-Some follow precedent and defer to Parliament
-Judges have a much limited role in interpretation
What are the 3 subtopics one can look at to compare the judicial branch of both the US and the UK within its impact on government and politics?
- Impact on culture and society
- Impact on the executive and legislature
- Impact on federalism and devolution
How can one compare the judicial branch of both the US and the UK based on its impact on culture and society?
US
-The Supreme Court has made key judgements in the US
-such as Brown v Board, Roe v Wade, both which heavily influenced society and their actions
UK
-The UK Supreme Court has not made judgements that have a comparable impact as the ones that the US has made other than the ruling on Brexit - miller v Secretary of State for exerting the European Union
How can one compare the judicial branch of both the US and the UK based on its impact on the executive and legislature?
US
-the Constitution provides for a set of laws that the Supreme Court can base their judgements on
-When they make politically controversial judgements about how the Constitution should be applied, they are accused of legislating from the bench
-can strike down legislation
-has judicial review
UK
-due to parliamentary sovereignty, the Supreme Court cant do as much - can’t strike down legislation
-Two of the Supreme Courts controversially political judgements were in defence of sovereignty - R Miller v Secretary of State for Exiting the EU, led to the Court finding that the government could not invoke Article 50 (exiting EU) without approval from parliament
-has judicial review
How can one compare the judicial branch of both the US and the UK based on its impact on federalism and devolution?
US
-played a key role in defining the rights of the constitution
-many rulings extended the scope of state law - e.g. NFIB v. Sebelius (2012), ruled that the federal government could not force states to expand Medicaid by threatening to take away existing funding - protected state power - state sovereignty
-some give more rights to the federal gov - Gonzales v. Raich (2005) - gov could ban marijuana, even when states had legalized it, under the Commerce Clause
UK
-Withdrawal from EU (Scotland Bill), the UK supreme court ruled that the Scottish parliament had gone beyond devolved powers by seeking to write its own laws for certain areas of EU law that were to be returned to the UK after Brexit - ruled that the sovereignty of UK Parliament meant that Scottish Parliament could not exceed its powers granted to the Scotland Act
-often rule in favour of devolution e.g. Reference by the Counsel General for Wales (2021) - upheld the Welsh Senedd’s ability to pass laws without interference from Westminster
What are the 5 subtopics one can look at to compare the judicial branch of both the US and the UK within its bases and extent of power?
- Bases of powers
- Final courts of appeal
- Judicial review
- Protection of rights
- Constitutional interpretation
How can one compare the judicial branch of both the US and the UK based on its bases of powers?
US
-Article 3 of the constitution establishes the US Supreme Court and gave it judicial powers
-Given judicial review of legislature
UK
-UK Supreme Court was made in 2005 (the constitutional reform act)
-The courts powers of judoka review is much more limited than the USA
How can one compare the judicial branch of both the US and the UK based on them being final courts of appeal?
US
-Court of appeal for those seeking justice
UK
-Court of appeal for those seeking justice
-2 times where the court has not acted at the final court of appeal
-1st was during when the UK part of the EU and the second was during the withdraw of the EU
-When UK left the EU all legislation was passed on to the UK parliament not the court
How can one compare the judicial branch of both the US and the UK based on judicial review?
US
-Has the power of judicial review e.g. United States v. Nixon (1974) - SC unanimously ruled against him, stating that no president is above the law and must comply with judicial subpoenas - he said he had executive privilege and didn’t have to hand over tapes
-The US has greater judicial review power than the UK
-In the US acts of congress are also subjected to judicial review and can be struck down if the court finds them unconstitutional
UK
-Has the power of judicial review e.g. Miller v The Prime Minister (2019) - 11-0 ruling against Johnson advising the Queen to prorogue Parliament for five weeks which would limit parliamentary scrutiny of the government’s Brexit plans - prorogation was unlawful, void, and of no effect because it prevented Parliament from carrying out its constitutional functions without reasonable justification
-In the UK if government with a majority in parliament could override the Supreme Court
-If the government lacks sufficient support it will be forced to comply
How can one compare the judicial branch of both the US and the UK based on protection of rights?
US
-The US Supreme Court can strike down laws that infringe the bill of rights
-In the US as the constitution is codified the laws are entrenched in the constitution
UK
-Uk Supreme Court can only identify a law as being incompatible Whitby Human rights act 1998 and invite parliament to consider redrafting legislation
How can one compare the judicial branch of both the US and the UK based on constitutional interpretation?
US
-Much greater role in interpreting the constitution that the UK court
-different approaches to interpreting the constitution
UK
-The UK Supreme Court cannot interpret the constitution - uncodified
-no different judicial approaches
What are the 3 subtopics one can look at to compare the judicial branch of both the US and the UK within relative independence?
- Judicial independence
- Politicised courts
- Political or public pressure
How can one compare the judicial branch of both the US and the UK based on judicial independence?
US
-Encourage Judicial independence
-Tenure ensures that position of Justice is protected from government interference
-Structurally and physically independent from the two other branches
-Can rule against government
- Allows the judiciary to make decisions solely based on law, and hold the most powerful members to account
-President has no influence over justices once they are appointed, as they have tenure
-Justices may rule against the political interest of politicians who appointed them, Neil Gorsuch and Bret Kavanaugh did against Donald Trump in Trump v Vance (2020)
-United States v Texas (2016) struck down Barack Obama‘s executive order, giving millions of illegal immigrants and indefinite delay in deportation
UK
Encourages Judicial independence.
-Tenure ensures that position of Justice is protected from government interference
-Structurally and physically independent from the two other branches
-Can rule against government.
-Allows the judiciary to make decisions solely based on law, an hold the most powerful members to account.
-R v Lord Chancellor (2016) rule that the Lord counsellor was acting ultra vibes by imposing a residence test for legal aid (state support with legal costs)
How can one compare the judicial branch of both the US and the UK based on politicised courts?
US
-President appoints either liberal or conservative justices (political leaning).
-A republican president is likely to be challenged on few occasions by conservative majority
-The court doesn’t always split along ideological lines and frequently makes unanimous rulings - The 6-3 conservative majority court anonymously declined to hear a case in which Trump challenge the 2020 election results, even though three of his justices were his appointees.
-Trump was frustrated with ‘ liberal’ rulings -> he reshaped the composition of US appeals courts - Trump picked young justices -> insures a long-term legacy of conservative judges
-Senate Republicans blocks Obama‘s nomination to the judiciary at the end of his presidency
UK
-Judges rule on narrower basis of the constitution interpretation, their political views are not the focus of public in the same way.
How can one compare the judicial branch of both the US and the UK based on political or public pressure?
US
-Trump used Twitter to criticise ‘ so-called judges’ and ‘ slow and political quotes’ in 2017, he condemned the court system as ‘ broken and unfair’ in 2018 and described Trump v Vance (2020) as ‘ a political prosecution’, comparing it to‘ a witch hunt’.
-Obama has criticised the Supreme Court citizen United v federal election commission (2010) judgement.
UK
-2017, the UK lord chief said that social media puts judges on intolerable pressure.
-Initially it was mainly used to criticise the interpretation of HRA.
-Home secretary Theresa May accused judges of ‘ ignoring’ deportation laws by making it more difficult to deport foreign people
What was the impact of the appointment of Coney Barrett?
-Barrett replaced Ruth Bader Ginsburg when both the senate and the president were controlled by republicans - a liberal could be replaced by a conservative
-It could maintain women’s representation on the court but allowed more judges to side with authorities over minority rights
-She is likely to impact the rulings of the court and make them more conservative
-Was not asked about abortion during hearings but is an originalist and Catholic - didnt defend abortion or roe v wade - refused to appeal an anti abortion law in Texas in 2021
-Appointment made the court more conservative
-Barrett is only 48 so her appointment means that a conservative majority on the court could have a large long term significance as justices now live longer - likely to serve 30 years on court
What was the impact of Trumps and Bidens appointments to the Supreme Court?
-Nominees will have a lasting impact on the court
-September 2021 - his 3 nominees were still young and long careers ahead of them - currently in their 50’s to early 60’s - unlikely to be vacant especially becuase of high life span
-Trumps appointments have proved to be reliable conservatives and dont swing
-Calls for Biden to pack the court after Barrett’s rushed appointment and expand it to appoint more liberals as there isn’t a number of Supreme Court judges that must be on the court - similar to Roosevelt’s policy which was strikes down
-2021 - executive order of presidential commission on the Supreme Court to look at reforms like their role in the constitution, length of service and the size of the SC - liberals in favour but conservatives not as it would politicise the court
-There is going to be a report on these changes led by the executive - it could challenge the independence and neutrality of the SC
Who has had the biggest impact on the SC out of Biden and Trump?
-Trump has had the biggest impact on the SC
-although Biden made a series of reforms on the Supreme Court that he hopes to introduce, they are unlikely to pass particularly with a Republican majority in the senate because of their view on conservativeness and originality
-trumps appointments are likely to have a long lasting impact on the Supreme Court
-The appointments create an imbalance between liberal and conservative judges which may mean that the views of liberals will be underrepresented in the Supreme Court for the time being, especially because the judges are unlikely to retire soon.
What is the impact of Ketanji Brown Jackson’s appointment?
-Ketanji Brown Jackson was the first Black woman on the Court, this enhanced its diversity and trust in the court to guarantee minority rights - opened the possibility for further diversity to be present in the court
-Brown Jackson was a public defender and federal judge, which brung unique perspectives, particularly on criminal justice and civil rights
-Jackson is a liberal, contributing thoughtful questioning despite the conservative majority
-Her nomination shows the importance of representation and may shape legal debates in the future
-There were worries from republicans that her sentencing record in criminal cases wasnt reliable and that she would fulfil Bidens political agenda
Shadow docket
The SC’s ability to grant an emergency stop or not on a law being carried out e.g. eviction moratorium - SC blocked administrations suspension on eviction during covid 19
