US Government; The Judiciary - powers of the SC Flashcards

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1
Q

What federal courts exist in America?

A
  • The US Supreme Court is the main federal court in the US, as defined by Article 3 of the US Constitution.
  • The Constitution establishes that the judicial power of the United States is vested in one Supreme Court and inferior courts as the Congress may from time to time ordain and establish.
  • Therefore, Congress decides the makeup of all inferior courts and their workload. As a result, the structure of the judicial system starts with the US Supreme Court at the top, followed by 13 Court of Appeals and 94 US District Courts.
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2
Q

How do cases work their way up to the SC?

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  • Cases make their way up through the District Courts to the Court of Appeals and then finally the Supreme Court, with appeals before each stage.
  • Some cases only go through this federal court system but many also go through state courts as well, which include the Lower State Courts, followed by an appeal before reaching the State Supreme Court, before an Appeal and then the case reaches the US Supreme Court.
  • Each state is divided into many districts with each having their own district court, with each region of states having their own court of appeal with decisions made in these courts being binding on all states in this district.
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3
Q

Why are the 13 federal Courts of Appeal significant?

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The Supreme Court is only able to choose to review around 80 to 100 cases each year, even though 9000 to 10,000 cases are filed each year. As a result, 99% of cases are decided in the Courts of Appeals, making them vital parts of the judicial system as they are often the final say on many judicial questions.

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4
Q

What is the power of judicial review and how does it relate to the constitution?

A
  • When the judiciary reviews the actions of the legislative and executive branch, and decides if the laws or government actions are compatible with the Constitution.
  • However, this power is not explicitly mentioned in the US constitution, but is argued to be an implied power - legislation was not struck down until the case Marbury v Madison (1803) for not being constitutional
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5
Q

In which cases does the SC have original jurisdiction?

A
  • Article 3 illustrates the jurisdiction of the Supreme Court - this is known as original jurisdiction, the right to hear a case first
  • The SC has original jurisdiction over cases involving ambassadors, between two states and where citizens are within their state (where a state is a party)
  • Source of judicial review - Article 6, Clause 2 - The Supremacy Clause, states that in the Constitution all treaties, compatible federal laws or constitutional laws made under the authority of the US are the supreme law of the land, and so the supreme law overrules any other conflicting laws
  • They also have appellate jurisdiction, where they can review the decision of a lower court and they have this jurisdiction on almost any case involving federal or constitutional law.
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6
Q

What did the Marbury v Madison case mean for the SC? (1803)

A
  • President John Adams lost his reelection bid, and so appointed a number of new judes before his term ended, one of which was William Marbury, but was unable to be confirmed with documentation before Adams lost the election. The new Secretary of State, James Madison, refused to send Marbury his commission (legal documents) as the new President didn’t want him in the position. Marbury went to the SC
  • The Judiciary Act (1789) - gave the Supreme Court the power to issue a ‘writ of mandamus’ - a legal order telling government officials to fulfil their duties; the SC therefore agreed that Madison should send Marbury his commission but stated they were unable to help him as Article 3 did not give the SC original jurisdiction on this matter, and so the Judiciary Act was incompatible with constitutional law, and therefore unable to be instigated as it was conflicting with the supreme law - Marbury therefore should not have been able to go straight to the SC.
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7
Q

What was the significance of Fletcher v Peck (1810)?

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  • In 1795, the Georgia legislature passed a law selling 35 million acres of state land to private speculators for just 1.5 cents per acre, and it was later revealed that the legislators had been bribed - in 1796, newly elected representatives repealed the Act and voided the sale. In 1800, John Peck acquired some of the land that had been sold in 1795, and he then sold it on to Robert Fletcher in 1803, and Fletcher sued for breach of contract, claiming Peck had not owned the land when he sold it.
  • However, the SC unanimously ruled that the repeal of the 1795 Act was unconstitutional - the sale was a binding contract, and therefore had to be upheld even if it was passed corruptly. This was stated under the Contract Clause of the Constitution that the sale could not be invalidated, as Article 1 Section 10 states that no state can pass a law that impairs the obligation of contracts.
  • For the first time, the Justices struck down a state law, further expanding the parameters of judicial review.
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8
Q

How is the power of judicial review justified?

A
  • The Chief Justice John Marshall stated in his written review that judicial review was needed as he didn’t see the point in limiting the federal government constitutionally when Congress was able to simply pass laws that conflict with the constitution. The constitution limited SC cases, but the judiciary act had expanded this. - He also stated that the very essence of judicial duty was to decide that the case conformed to the law and disregard the Constitution, or to disregard the law for the sake of protecting constitutional law. When a law conflicts with the Constitution, they have to decide which to use to decide the case, which is ultimately always the Constitution. In the Marbury case, they chose the Constitution, even if they agreed to the law’s parameters. - They therefore gained a significant power and role - they decided what became a law, by deciding compatibility with the Constitution
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9
Q

What stages do cases go through once they reach the Supreme Court?

A

The term of the SC begins on the 1st Monday of October, finishing in June/July the following year.
Stage 1 - The term begins with the 1st stage of Conference -> This is a private meeting where the 9 justices meet to discuss which cases to take, and 4 votes are needed to take a case on - several factors influence the cases selected; are there important, interesting constitutional questions that need resolving, or have federal courts or state supreme courts made conflicting interpretations they have to solve

Stage 2 - Filing briefs:
-> Both parties involved in the case files briefs outline their argument, and interested pressure groups can file amicus curiae briefs (friend of the court) if justices grant them permission to introduce other perspectives and arguments the main parties may have overlooked

Stage 3 - Oral arguments

  • > Lawyers representing each side are given time to make their case, whilst justices ask questions
  • > Transcripts of these proceedings give the first clues to how the 9 justices may be leaning on the case

Stage 4 - Conference / Written decisions

  • > The 9 justices again meet to discuss the case, and then vote in order of seniority, on how they would decide it - votes can be unanimous or split 5-4
  • > One justice writes the majority opinion explaining the opinion of the majority
  • > Other justices in the majority can write concurring opinions
  • > Justices in the minority can choose to write a dissenting opinion to explain their choice if they wish
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10
Q

Limitations on power - What influence does Congress have over who sits on the Supreme Court?

A
  • The other branches have influence on appointing and dismissing justices, with the President nominating the candidate for life and Senate having the role of confirming the candidate through a majority vote.
  • The Constitution allows justices a life tenure, allowing them to serve on the court until their retirement or death, and only if they show ‘good behaviour’; Congress is able to impeach justices if they commit treason, misdemeanours, high crimes or bribery.
  • The House of Representatives must first gain a majority vote for this impeachment, or formally accuse the justice, and then the Senate holds a trial where a supermajority can remove the justice from the Court.
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11
Q

Limitations on power - How can Congress overturn the Supreme Court’s decisions?

A

Amendments to the constitution can result in decisions from the SC being overturned by Congress, as laws struck down for being incompatible with the constitution can trigger a constitutional change to make the law compatible, allowing a way round SC decisions. However, due to how difficult changing the Constitution is, this rarely happens.
4 examples -
- 11th amendment -> overturned Chisholm v Georgia (1793)
- 14th amendment -> overturned Dred Scott v Sandford (1857) - rights for former slaves
- 16th amendment -> overturned Pollock v Farmers’ Loan Trust (1895) introduced a federal income tax after they were ruled unconstitutional
- 26th amendment -> overturned Oregon v Mitchell (1970) - lowered the voted age
Most attempts to change the constitution do fail however, reducing the possible impact of this congressional power, as attempts to overturn decisions such as the one in Engel v Vitale (1962) to ban prayer in public schools, the abortion decision in Roe v Wade (1973) and the flag burning decision in Texas v Johnson were all failed to be overturned.

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12
Q

Limitations on power - Why is time such a big limit on the Supreme Court’s influence?

A

Justices can only issue a writ of certiorari to a tiny number of cases submitted (an order to lower courts for the case to be reviewed). Therefore, despite the great power of judicial review, there is only a small amount of cases they can have an impact on. Time therefore impacts the extensiveness of their powers.

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13
Q

Limitations on power - Why have some important constitutional questions gone unanswered?

A
  • The SC itself cannot actually initiate cases. As a result, they cannot answer questions that do not have a federal court case or state case already established and they also do not have the time to answer all 9000-10000 questions and cases in a term, only reaching about 80-100. The President and Congress can take initiative on political issues, whereas the SC has to wait for a lawsuit to be brought before the court that centres on the law or issue, and they therefore cannot answer abstract constitutional questions.
  • The SC also has little original jurisdiction, and so many cases are heard on appeal from the State Supreme Court or the US Court of Appeals, and the process of the cases to rise through the system and reach the court can take years, limiting its influence. For example, the issues with the 2nd Amendment could not be constitutionally addressed and interpreted by the SC until the case of D.C. v Heller in 2008.
  • Another example is the War Powers Resolution 1973 attempted to be brought in by Congress at the end of the Vietnam War which aimed to prevent presidents from ordering military action without Congressional Approval, and numerous presidents have largely ignored the resolution, arguing the restrictions are unconstitutional and depleting their enumerated powers.
  • This seems like an issue that could be addressed by the SC, but the issue has never received a lawsuit and therefore never came before the SC, and remains an unsettled constitutional question. This therefore impacts the ability of the judiciary to be a mitigating branch for the Executive and Legislature.
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14
Q

Limitations on power - Why did the decision in Brown v. Board of Education have only a limited impact on segregated schools?

A
  • It is difficult for justices to enforce their rulings - this case saw a unanimous ruling that separate educational facilities are inherently unequal, and therefore legal segregation violated the Equal Protection Clause of the 14the Amendment.
  • Southern states were however reluctant to act on these federal rulings, seeing them as undermining of state sovereignty, and so despite interpretation of the amendment it had little impact, as authorities in the Southern States, such as in 1957 when the Governor of Arkansas ordered the State’s National Guard to block black students from entering the newly integrated Little Rock Central High School.
  • President Eisenhower sent federal troops to enforce the integration and protect the students, and other branches are therefore relied upon to enforce and uphold decisions across the country.
  • In 1963, only 1.2% of black students in the south attended a school with white students, but this rose to 33% in 1968 - more civil rights cases had made its way to the court to enforce this ruling, but what caused the change most was Executive and Legislative acknowledgement of the issue with the introduction of the Civil Rights Act (1964) which pressured schools to desegregate or risk losing funding.
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15
Q

Limitations on power - How did FDR influence the decisions of the Supreme Court in the 1930s?

A
  • Congress also has great power to shape the structure of the federal court system, and the Constitution does not even specify how many justices there should be on the SC, and so the number began at 6 with the Judiciary Act 1789 but has changed multiple times, having between 7-10 judges from 1807 through to 1869. FDR used this to pressure the court, as the court kept ruling his legislation unconstitutional, blocking the National Industrial Recovery Act (1933), Agricultural Adjustment Act (1933) and the Frazier-Lemke Farm Bankruptcy Act (1934), as Court claimed they went far beyond Congress’ power under the commerce clause of the Constitution.
  • FDR therefore was forced into possibly having to wait for the conservative judges to leave the court to get through his legislative agenda and replace them with liberal judges who would do so. He introduced the Judicial Procedures Reform Bill to speed this process up in 1937, which would give the President the power to appoint an additional justice (up to a maximum of 6) for every member of the court aged over 70.
  • These reforms were argued by FDR to be in place to help older justices with their workload, but it was known that his actual aim was to liberalise the court to outvote the conservatives.
  • This ‘court packing scheme’ was defeated in Congress, including by Democrats who believed it would undermine the Constitution, but the threat along with considerable public support for the New Deal, appeared to influence a swing member of the court.
  • This could be seen in the National Labour Relations Board v Jones & Laughlin Steel Corporation (1937), where the National Labour Relations Act (1935) was narrowly upheld, guaranteeing the rights of workers to join trade unions and created the NLRB to oversee trade union elections and activities. They upheld the NLRB under the ‘commerce clause’ in a 5-4 vote they were expected to strike down. This suggests the court is not immune to government or public pressure.
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16
Q

Limitations on power - What is stare decisis? How does it limit the Supreme Court?

A
  • The judges are generally constrained by precedent - to stand by that which is decided, and so it is a legal principle that judges should respect the precedent established by past decisions, which aims to prevent inconsistency in law application and prevent undermining the law by giving conflicting interpretations.
  • This can be seen in the case of Roe v Wade 1973, which saw a 7-2 vote that the right to privacy, implied by due process clause of the 14th Amendment, protected a woman’s right to have an abortion. This was a controversial ruling, and more modern conservative courts have upheld decisions that conflict with the right to abortion but have not overturned the precedent set in this case. Planned Parenthood v Casey (1992) saw a more moderate judge uphold the right to abortion largely based on the precedent set in Roe v Wade.
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17
Q

Limitations on power - Why, despite the principle of stare decisis, are the Supreme Court Justices unable to bind future courts?

A
  • Precedent can prevent giving preferred opinions, but they also in some cases do undermine the set precedent and change the general ruling, therefore making them unable to bind future courts to their decisions. Precedents have been argued to be overturned if they are seen as unworkable, there have been subsequent changes in fact or if society has largely rejected the ruling.
  • Plessy v Ferguson (1896) - Upheld the constitutionality of state laws requiring racially segregated public facilities, as long as they were ‘separate but equal’ - however, in the case of Brown v Board of Education (1954) this same issue was given a different precedent, changing this ruling to establish that separate facilities are inherently unequal and were therefore unconstitutional. The justices felt compelled to overturn the Plessy v Ferguson 1896 precedent because societal opinion had changed.
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18
Q

Appointment of the SC - What protects the independence of the SC?

A

The idea that the judiciary should be free from influence of the other branches of government. It would undermine confidence in the courts decisions, if the public thought the presidents or congress members were pressuring them to reach a certain outcome.

Article II - US Constitution

  • Says that judges both of the supreme and inferior courts shall hold their offices during good behaviour.
  • This means the justices on the SC have life tenure, and can keep their jobs until they choose to retire as long as they behave well. In the event they break the law they can be impeached by congress. (Impeachment is not a simple process)

President Thomas Jefferson (1801-1809) feared the growing power of the judiciary, he urged the HoR to impeach the federalist justice Samuel Chase who he felt held particularly federalist views on the role of SC and gov. So was impeached in 1804- argued he was being tried for political opinions rather than his conduct. The Senate found that Chase was not guilty in 1805 and no justice has been impeached since. Sc justices usually outlast presidents that nominated them.

The judges shall at stated `times receive for their services a compensation which shall not be diminished during their continuance of office. Congress cannot threaten to lower their pay to put pressure on them to reach a certain decision.

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19
Q

Appointment of the SC - Nominations

A

On average, a vacancy comes up every two years, however some are much more lucky, Richard Nixon nominated four, Jimmy Carter nominated none.
- Article II says that ‘the presidents shall nominate and by and with the advice and consent of the Senate shall appoint Judges of the SC.’
- elections would undermine the idea that judges are neutral and base their opinions on the law.
- They cannot pick allies as they would likely be rejected by the Senate.
The process starts when a sitting justice dies, is impeached or retires.
1) the president’s advisors draw up a shortlist of suitable candidates.
2) The constitution does not have any specific qualifications for justices- e.g age, education, profession, law degree. James F. Burns was last appointed without attending law school in 1941.
3) Tend to nominate judges with similar political review with a detailed record of their past decisions, which indicates how they would vote on future constitutional questions.
4) 5 most conservative justices currently sitting who tend to produce decisions approved of by republicans, were all appointed by republicans. while the four more liberal justices were nominated by democrats.

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20
Q

Appointment to the SC - Why are nominees scrutinised?

A

To ensure that the nominee has paid their taxes and has not been convicted of serious crimes. They check records from former schools and employees and interview friends and past colleagues before passing a report and recommendation to the Senate Judiciary committee. (American Bar Association) Voluntary association representing lawyers who have considerable expertise on the qualities and experience needed to be an effective judge. the ABA began to rate SC nominees in 1956 giving them an overall rating of Well Qualified, Qualified, or not Qualified. It is rare for the nominee to not be endorsed by the ABA.

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21
Q

Appointments to the SC - What role does the Senate Judiciary Committee play in the confirmation process?

A

Hearings conducted.
- The senators spend several days questioning the nominee along with other witnesses to support or oppose the nomination. Overtime, these hearings have become a more lengthy process, when Richard Nixon nominated Warren Burger to serve as chief justice in 1969, only three groups have written or oral testimonies. However when George W. Bush nominated John Roberts, almost 70 groups did.

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22
Q

Appointments to the SC - Why was the 2005 nomination of Harriet Miers unsuccessful?

A

President George W. Bush nominated Harriet Miers. She had never served as judge and had little experience in constitutional law, so there was no clear written record of her approach to constitutional interpretation this unnerved many Republicans who feared the president must be nominating someone for all they knew would prove to be much more liberal than they would like on issues such as state rights, abortion or same sex marriage .Conservative group that began a nationwide campaign to oppose her nomination. With pressure mounting, Miers withdrew her nomination.

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23
Q

Appointments to the SC - How have Senate confirmation votes changed since the 1980s?

A

Voting has become much more partisan in recent years. Despite being one of the most conservative members of the SC, Antonin Scalia who died in 2016 passed with a unanimous vote back in 1986, with all 18 members recommending his appointment. only 1 republican supported each of Obama’s nominations.

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24
Q

Appointments to the SC - Why did Democrats oppose Robert Bork’s nomination in 1987?

A
  • a few nominees are actually defeated at this stage despite possibility.
  • Ronald Reagan nominated Robert Bork; he was a very well qualified judge with years of experience, but he was very conservative opposing broad interpretations of the constitution, a significant increase in the power of the federal government.
  • He had criticised the Civil Rights Act as an example of the federal government intruding on states’ rights and also criticised the SC decision in Griswold v. Connecticut where the judges had argued that even the constitution does not explicitly say so, it still protects a constitutional right to privacy, this that was then used to protect a woman’s right to an abortion the case of Roe v Wade in 1973.
  • The Senate Judiciary Committee voted 9-5 in the motion to send the nomination to the floor with an unfavourable recommendation. All democrats supported this motion, and all republicans were naturally opposed. Bord was then rejected 58-42 by the full Senate, and all but 2 senate democrats opposed the nomination.
25
Q

Appointment to the SC - Why do some argue that the confirmation process is now a test of ideology, rather than competence?

A
  • Consensus amongst many academics that Bork’s fundamentally changed the appointments process.
    Whereas previously, it was a vote on competence, a question of whether the nomination had sufficient experience and the qualifications needed for such an important role.
  • It is now increasingly a political vote based on ideology with senators deciding if the nominee was conservative or liberal enough and likely to support or oppose their agenda. Democrats were regularly infuriated by Justice Scalia’s decision on the SC, yet he was confirmed in 1986 by unanimous vote as it was clear that he was extremely qualified for the job.
  • Likewise, republicans might rarely agree with the decision of Justice Ginsberg but only three opposed her nomination but would these results be possible in today’s congress. According to Chief Justice Roberts said ‘Neither one of them would have a chance today. And that does not make any sense. That’s bad for the judiciary. ‘ -2014.
26
Q

Interpreting the Constitution - Why are there different theories on how the US Constitution should be interpreted?

A

The Constitution does not stipulate how it should be interpreted by future generations, as it does not provide guidance on the SC. Therefore, there are differing theories on how it should be interpreted by SC judges during cases. In some constitutional areas, there isn’t much to be interpreted, such as Article 1, Section 3, which states the amount of Senators that should reside in the Senate. Other parts are however more vague, such as the Commerce Clause (1.8), but there is room for interpretation on what commerce refers to. In this case, different theories would ask different questions to decide the interpretation:

  • Strict Constructionists - What does commerce literally mean?
  • Originalists - What did commerce mean at the time of ratification?
  • Loose constructionists - What is commerce in today’s society?
27
Q

Interpreting the Constitution - What do strict constructionists argue?

A
  • Strict constructionists believe that the Constitution should be interpreted literally and narrowly, and nobody should change the Constitution to fit their beliefs - fixed and unchanging meaning.
  • The Supreme Court originally fell into this strict constructionist category at the beginning of FDR’s New Deal, overturning much of the law, such as striking down the National Industrial Recovery Act 1933 (established the National Recovery Administration, which set new industrial regulations and codes) in the case of Schechter Poultry Corp vs US (1935), ruling that this law exceeded Congress’ power under the Commerce Clause, as regulations for workers were not part of the interstate commerce.
  • This was frustrating to President Roosevelt, who felt a relegation of power had been unnecessarily instilled. Roosevelt favoured Loose Constructionism, and wanted a reinterpretation of commerce to fit modern needs and society.
28
Q

Interpreting the Constitution - What do originalists argue?

A
  • Originalists are similar to SC’s, believing that the Constitution should be interpreted based on its original meaning when it was ratified e.g. the 2nd amendment SC judgments should be interpreted based on texts and public opinion from the time it was written to understand its meaning.
  • The SC was more originalists by the 70s and 80s, and it agreed with Lopez’s argument that the 1990 GFSZA in a 5-4 vote that the law was unconstitutional and did exceed Congress’ power under the Commerce Clause
29
Q

Interpreting the Constitution - What do loose constructionists argue?

A

Loose constructionists - the meaning of the constitution should evolve to reflect changes in society; it is a living document, and that if judges interpret the constitutional wording too broadly it will become outdated; they instead take the Constitutional principles as the basis of the law over the actual wording itself.

United States v Lopez (1995)

  • In 1990, Congress passed the Gun-Free School Zones Act
  • A high school student named Alfonso Lopez was caught breaking this law by taking a gun into school in his backpack, but he argued that possessing a gun near school broke no laws as it had nothing to do with interstate commerce
  • An example of the government taking a more loose constructionist approach can be seen in the case of the United States v Lopez (1995), where Congress argued to justify their law that guns can lead to violent crime, thus affecting learning and as a result impact their contribution to the economy, and so it was part of the Commerce Clause power.
30
Q

Interpreting the Constitution - How do the different philosophies view the decision in Roe v. Wade (1973)?

A
  • Justices voted 7-2 that the right to privacy, implied by the Due Process Clause of the 14th Amendment, protected a woman’s decision to have an abortion. Strict Constructionists argued that the Constitution says nothing about a right to privacy, and therefore there is no protection of abortion rights, and so the ruling is an incorrect interpretation.
  • Originalists also agree that the decision is incorrect, as the 14th amendment was a response to the treatment of former slaves following the Civil War, and so was never intended to be interpreted as an improvement of rights to privacy or abortions.
  • However, Loose Constructionists agree with the ruling as they see the Due Process Clause as a protection of life, liberty or property, and as privacy is an essential liberty, the right to an abortion is protected.
  • Judge Rehnquist’s originalist dissent clearly stated that his reasons for opposing the decision was due to evidence that the original Framers did not consider this right to be included under the 14th Amendment, as abortion laws were present in other states (36 by the time of the 14th amendment). He argued that other judges were simply inventing a right that didn’t exist in this clause to fit their liberal views
31
Q

Interpreting the Constitution - How else are originalists and loose constructionists usually different?

A

Strict constructionists and originalists focus on the text and the original meaning of the Constitution, but in contrast, loose constructionists also look at the value, purpose and context of the Constitution as well as the text itself, reading in elements they felt the Framers would agree with and that fit the needs of a much different, more modern society. On today’s SC, there are both Originalist and Loose Constructionists justices.

  • Justice Gorsuch -> favoured originalist interpretation, and thought that ‘judges should apply the law as it is, focusing backward, not forward and looking to text, structure and history to decide what the reasonable reader at the time of the events in question would have understood the law to be’
  • Justice Breyer -> Loose constructionist, ‘the Court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances’
  • Originalists tend to be more conservative, and are often appointed by Republican Presidents, with more favour towards the protection of state rights
  • Loose Constructionists tend to be liberal and appointed by Democratic Presidents, and due to their broader constitutional interpretation, they are likely to be in favour of a strong federal government
32
Q

Interpreting the Constitution - What are the arguments in favour of originalism?

A
  • The Founding Fathers deliberately created a difficult amendment process in order to protect original laws and meanings, and so judges who are unelected should not be regularly making their own changes; this should be left to the broad popular opinion - originalism is therefore the best method of interpretation; there is no reason to have a codified constitution if judges can so easily change it
  • An originalist approach is more objective, based upon the original understanding of the text, rather than judges’ personal political opinions
  • With a too powerful judiciary, a living constitution is a ‘mere thing of wax…they may twist and shape into any form they please’ - Thomas Jefferson, and so originalism checks judges’ powers
  • Originalism also ensures that decisions are more consistent and predictable, as they are based on the original meaning of the founders - greater stability in constitutional law rather than changing to fit broader beliefs of whoever is on the court at that time

1) Antonin Scalia, a SC Justice from 1986-2016 stated that you do not need a constitution to keep things ‘up to date’, you simply need a legislature and a ballot box, by which democracy decides new laws and interpretations - democracy is not about 9 judges imposing demands on society who have the position for too long, but rather about passing new laws as people and as Congress to update society and its laws.
2) One problem with decisions that require a broad reading of the Constitution can lead to decisions that may be seen to lack legitimacy, and many Americans may ignore the SC decision; 29% of people in a 2013 poll stated that it would overturn the Roe v Wade decision as they were believed to use their own politics over the Constitutional wording.
3) Scalia stated that an Originalist method of interpretation prevented the imposition of personal beliefs, such as in the Texas v Johnson (1989) case, in which the SC ruled in a 5-4 decision that laws banning the burning of the American flag violates free speech; Scalia personally believed that flag burning should be prohibited, but did not believe the Framers would have believed the same under the 1st amendment, and so had to vote to uphold it.

33
Q

Interpreting the Constitution - What are the arguments in favour of loose constructionism?

A
  • Is originalism equally subjective and inconsistent - can we definitely know how the Constitution was understood at the time of ratification?
  • Supreme Court justices are not historians, and what if there is not sufficient, clear evidence for how it was originally interpreted? - favours loose constructionism broad law making
  • Can the original meaning of the Constitution really be applied to radical new developments in society, such as new technology?
  • The Founding Fathers deliberately used vague language, suggesting that they intended the Constitution’s meaning to evolve over time

1) One example that demonstrates the downsides of the originalist approach is the Second Amendment, which is very confusingly worded. The original meaning is not clear - it does not state whether it is protecting the collective right to form a militia, or the individual right to own guns. A number of different sources support both arguments, and so using originalism to interpret this amendment is difficult due to a lack of historical consensus, making loose constructionism more effective at interpreting its application to a modern society.
2) Another example is Brown v Board of Education, where the SC unanimously ruled segregated schools were inherently unequal and violated the Equal Protection Clause of the 14th Amendment; this poses a problem for originalists, as at the time of passing the 14th amendment, the District of Columbia had racially segregated schools, and so at the time of ratification, the 14th amendment was not seen as incompatible with segregated schools. By originalist logic, the judge would have no choice but to vote against an obvious popular decision based on the original meaning, as they wouldn’t be able to change the interpretation to a society in which equal protection had grown.
- Loose constructionism was argued by Chief Justice Earl Warren after the decision, stating that approaching this problem should not involve ‘turning back the clock’ to 1868 but instead by considering public education in its full development and present place in American life throughout the nation, and only in this way can it be determined that segregation in public schools deprives these plaintiffs of equal protection under the law.

34
Q

The Supreme Court in the Constitution

A

Article 3 - Section 1

  • Justices hold their position on ‘good behaviour’
  • Judicial power extends to all cases, in law and equity, arising under the constitution (vague)
  • Presides over cases involving public officials or states
  • All trials of crime held by the jury except impeachment

Not in the constitution but implied -

  • 9 members of the SC - 1 chief justice and 8 associate justices
  • Number fixed by Congress and remained unchanged since 1869
  • 94 District Courts, 13 Courts of Appeals, Supreme Court of the US
  • Appellate jurisdiction means the Supreme Court cannot make a ruling until a case is appealed to it
  • Original jurisdiction hears the case first
35
Q

The current Supreme Court

A

Chief Justice: John G Roberts

  • Year - 2005
  • Nominated by: George W Bush
  • Ideological Leaning - Judicial restraint - Conservative

Associate Justice - Clarence Thomas

  • 1991
  • Nominated by: George W Bush
  • Ideological Leaning - Conservative

Associate Justice - Stephen G Breyer

  • 1994
  • Nominated by: Clinton
  • Ideological Leaning - Liberal

Associate Justice - Samuel A. Alito

  • 2006
  • Nominated by: Bush
  • Ideological Leaning - Conservative

Associate Justice - Sonia Sotomayor

  • 2009
  • Nominated by: Obama
  • Ideological Leaning - Liberal

Associate Justice - Elena Kagan

  • 2010
  • Nominated by: Obama
  • Ideological Leaning - Liberal

Associate Justice - Neil M Gorsuch

  • 2017
  • Nominated by: Trump
  • Ideological Leaning - Conservative

Associate Justice - Brett Kavanaugh

  • 2018
  • Nominated by: Trump
  • Ideological Leaning - Conservative

Associate Justice - Amy Coney Barrett

  • 2020
  • Nominated by: Trump
  • Ideological Leaning - Conservative

There is a current 6-3 ideological split in favour of more conservative ideology and judicial restraint, limiting the SCOTUS powers to simply their enumerated role, limiting their influence and conflict with legislative branches, giving Congress more power and also ensuring that the executive who is currently liberal is limited in his constitutional powers, and Congress is blocked in decisions such as the Texas Heartbeat Law.

36
Q

The Swing Justice

A
  • A swing Justice is a Supreme Court Justice who will move from the liberal to the conservative areas of the Court dependent upon the case. This was done by Justice Kennedy until his retirement from the court. At times, Chief Justice Roberts has behaved in this way.
  • The concept of a swing justice is important because it means that the supreme court is still able to have some ideological movement in terms of how it makes decisions in some cases, and therefore means that the vote and support of the SC is not always guaranteed, making the branch more deliberative and creating a less politicised judiciary; it means more emphasis is placed on the constitutional interpretation and law experience than political swing. It therefore adds a strength to the make-up, adding another dimension to the decision making.
37
Q

Issue 1 - Abortion and swing judges

A

This could create more room for pressure groups to sway the decisions of the court, and this can create security for voters that they may win cases where judges can be swayed and not purely vote on their conservative ideology, therefore creating an opportunity for judges to protect rights they may not believe and become unbiased decision makers in the way originally intended by framers - it allows justices to make decisions based on their impact on others, rather than their politics, making the judiciary a more effective assessor of constitutionality and more unbiased interpretation and body for the people, not just for Congress or the Executive (they are often a bridge between the two, and work to appease and support them, and so swing votes allow public opinion through, adaptation of SC judges to modern issues and independence as a branch with its own responsibilities both politically and personally to the US

38
Q

Issue 2 - Swing judges and Immigration

A

This means that immigration laws are not purely decided on alignment with the executive, but rather the quality and constitutionality of the laws, therefore creating a more unbiased assessment on a personal issue, and allowing justices the freedom to make a decision not based on their political ideology but their role as a justice rather than a constitutional delegate of the executive - they are not forced to vote with their President, allowing the judiciary more independence as a branch

39
Q

The appointment process - The vacancy

A
  • A Supreme Court member will either die on office or retire.
  • The nomination of a justice to the Supreme Court can be one of the most important appointment for President that they can make. This is because as a member of the Supreme Court they have tenure is for ‘life’ – this can mean they can easily have an impact on how laws are viewed, whether they are viewed as unconstitutional long after the term of the President.
  • An example of this can be seen by the fact that between the years 1994 to 2005 there was no vacancy on the Supreme Court – but because Clinton (1993-2001) and George W Bush (2001 to 2009) were two term presidents they still got to nominate someone to the Supreme Court.
40
Q

Stage 1 - Recruitment and Searching

A
  • President seeks advice from political advisors, Justice Department, senior WH aides, key congressmen, professional groups (American Bar Association), friends & associates.
  • Federalist Society for Trump – conservative lawyers’ group
  • Mainly come from the Court of Appeals – all except Kagan from there
    Looks also at Department of Justice – Kagan was Solicitor General
  • Might look at State Courts – David Souter from NH Supreme Court

Pools of recruitment often consist of those already in the political sphere of the President, showing their close connection to and interaction / dependency on the executive branch, and therefore the possible transactional interpretations that justices might make as unelected officials. Retrieving nominees from those with law experience lower down in the court system also shows the emphasis is on experience and political leaning.

41
Q

Stage 2 - The Announcement

A
  • FBI check shortlist & President interviews 2 or 3
  • President makes formal announcement attended by press, nominee, his/her family & key congressmen
  • Unofficial ABA rating of ‘well qualified’, ‘qualified’ and ‘not qualified’
  • Only Clarence Thomas (1991) received ‘qualified’ recently.

Supreme Court justices are in theory well-vetted and assessed on their ability to be an effective judicial member, showing the high quality expected and also the public pressure on judges. However, it also shows the amount of human error and bias that exists within the judicial system - for such an important body, there are flaws with the process that lead to less qualified but politically favoured judges to gain tenure.

42
Q

Stage 3 – The Confirmation Process

A
  • Nominee appears before Senate Judiciary Committee with hearings, from the nominee, supporters and maybe critics.
  • If the hearings go badly the candidate may withdraw or the President may halt it
  • Harriet Miers withdrew in 2005 after Senators unconvinced about ideological credentials.
  • After the hearings, the committee vote – normally foretells Senate approval or not.
  • 12 nominations been rejected since 1789
  • 1987 Reagan’s Robert Bork lost as he’d played a role in Watergate by firing the individual prosecutor investigating. He was an outspoken conservative and the court was finely balanced

That the nomination process is gruelling and expected to be an effective check on the judiciary members and an unbiased body in the checking of other branches. However, there is no standardisation on the Senate hearings and this leads to biased hearings and a mix of assessment on what is asked about, leading to more ideological pressure on some candidates and qualification pressure on others, and so approval may not be entirely unbiased. It is also difficult to be nominated - despite bias, it is still important for judges to be qualified and be able to be seen as upstanding deciders of the law, as well as their ability to make good informed decisions, and so despite not being elected they are essentially subjected to public pressure through the mandate given to the elected Senators

43
Q

Why is the Constitution so complex in the appointment of a Supreme Court justice

A

Because it is an unelected body, the elected bodies need a clear line of gruelling assessment of their suitability to decide constitutionality and therefore it is a complex process to Senators as mandates of the people can make the most informed and accurate decision about approving nominees for such an important and complex decision

44
Q

The influence of the nominee’s judicial experience on their nomination by the President

A

This is a very important factor and key to the searching and confirmation processes of the nomination. The American Bar Association will rate nominees on their experience and capability as advice for the president. Clarence Thomas is the only justice who did not receive a “well qualified” rating. Justice will be making many difficult and important decisions and, hence, experience is needed.

45
Q

The influence of the political leaning of the nominee (litmus tests) - Presidential nomination choice

A

Arguably more important than the experience of the nominee. The justice selected by the president will always share a similar ideological leaning – Republicans choose conservatives and Democrats choose liberal. This also is important for the confirmation stage as their leaning may make it easier or more difficult to pass through the Senate hearing.

46
Q

The influence of their likelihood to agree with the President on decisions

A

The Supreme Court possess the power to strike down statues proposed by the president. Justices that see eye-to-eye with the president makes this far less likely to happen.

47
Q

The effect of the appointment on the balance of the SC

A

Appointments can tip the ideological balance of the Supreme Court from one to another. Certain appointments will therefore be more important than others as they can lead to a more conservative Supreme Court, making it easier for Republican presidents.

48
Q

Their likelihood of approval by the Senate

A

If the opposing party is dominating the Senate, the president will be forced to select a more moderate nominee to appease them – e.g. Kagan and Obama.

49
Q

The importance of the SC nominations

A

What makes the Supreme Court nomination process so key?

  • They are infrequent; compared to the Cabinet which can happen 2/3 times a year
  • These appointments are for life as opposed to other executive positions
  • Only 9 members of the Supreme Court rather than 435 House members and 100 Senators
  • Judicial review – they can strike down laws or at very least lead interpretation of them.
  • They can make decisions on guns, federalism, abortion & freedom of speech – all of these have been critical in the understanding of the impact the American political system can have on society – see the arguments over Roe v Wade 1973.
  • The nomination process does not only ensure that a candidate is robust enough to last under the pressure of the responsibility of the supreme court, but also that they are able to make sound and competent decisions based on a range of factors surrounding making key interpretations on laws.
50
Q

Obama’s SC nominees

A

Sonia Sotomayor (2009)

  • A Hispanic federal appeal judge who was nominated to replace David Souter.
  • Well received by Democrats and prominent Republicans who didn’t want to be viewed as anti-Hispanic who had a big role in electing Bush
  • Sotomayor-for-Souter was a like to like nomination (moderate liberals)
  • Sotomayor distanced herself from Obama’s belief judges should rule with empathy.
  • 12 democrats and 1 republican voted yes in the committee against 6 Republicans.
  • Sotomayor approved in the Senate 68-31 and it took 66 days not far off the average 60.

Elena Kagan (2010)

  • John Paul Stevens retired and Obama nominated Kagan.
  • Democrats called her ‘unassailable’, ‘refreshing’ and ‘-‘brilliant’
  • Republicans saw her as a ‘political lawyer’ and ‘unqualified’
  • She gave a bland speech promising impartiality but livened it up with her sense of humour.
  • Lightly refused to answer which justice she identified with.
  • Committee voted 13-6 and Senate voted 63-37
51
Q

Trump’s SC nominees

A

Neil Gorsuch (2017)
- Nominated by Trump following ‘conservative’ Justice Scalia’s death in Feb 2016.
- Huge controversy over whether the nomination should be for Obama or the 2016 winner to decide.
- Youngest nominee since the nomination of Clarence Thomas in 1991.
- Senate majority leader Mitch McConnell used the so called ‘Biden Rule’ to justify not considering Obama’s choice of Merrick Garland.
- The US Bar Association gave him ‘a well-qualified’ judgement.
- In the Judiciary Committee party line vote (11-9)
Led to Republicans breaking a filibuster with a simple majority vote.
- Senate confirmed his nomination with a 54 – 45 votes with 3 Democrats joining with Republicans.

Brett Kavanaugh (2018)

  • Nominated by Trump following the retirement of Justice Anthony Kennedy.
  • A controversial nomination as Kennedy was a ‘swing justice’ and Kavanaugh is seen as more conservative.
  • The US Bar Association gave him ‘a well-qualified’ judgement.
  • Senate Judiciary Committee followed a partisan format and large demonstrations – 227 arrested for protests.
  • Several women have come forward with allegations of sexual misconduct.

Amy Coney Barrett (2020)

  • Nominated by Trump following the death of Justice Ruth Bader Ginsburg.
  • A controversial nomination coming close to the election like Merrick Garland
  • Senate ignored the Garland precedent and confirmed Barrett.
  • The US Bar Association gave her ‘a well-qualified’ judgement.
  • Senate Judiciary Committee followed a partisan format – Senate confirmed 52-48 with Susan Collins only GOP rebel.
52
Q

Judicial Review - Marbury v Madison (1803)

A
  • As the new President in 1801, Thomas Jefferson was affronted by the way in which his predecessor, John Adams, had attempted to move his party supporters into judicial offices before he left office. It seemed like a blatant attempt to ‘pack the courts’, and Jefferson ordered his Secretary of State, James Madison, to halt those appointments which had not already been put into effect. - One disappointed candidate was William Marbury, and he sought redress in the courts for his grievance. In particular, he wanted Madison to drop his attempt to stop the appointment, and argued that under the Judiciary Act of 1789 the Supreme Court could issue a writ to make the government official [Madison] carry out his responsibility to do so.
  • The Court, led by John Marshall, was in a difficult position. If it backed Marbury’s argument and the President then refused to appoint him its prestige would be undermined. Yet if it supported Jefferson and Madison, it would seem to be acknowledging that the Judiciary had no control over the Executive. In the event, it declared that although Marbury had a legitimate grievance, the Court was unable to ensure that he got his commission.
  • Marshall argued that the Judiciary Act conflicted with article iii of the Constitution, which limited the Supreme Court’s authority to appeals only except in a narrow range of cases - such as those involving an ambassador or foreign minister. In other words, the Judiciary Act was unconstitutional. He had avoided creating situation which he could not enforce, but had taken the opportunity to expound the doctrine of judicial review, by which the Court can declare null and void any statute or action of the federal government which conflicted with the Constitution; only the Court could say what was and was not ‘unconstitutional’.
53
Q

Why does this case demonstrate why judicial review was necessary?

A
  • Judicial review is necessary because the Constitution provides only broad and rather vague principles for the organisation and operation of government.
  • It establishes three branches based on the principle of the Separation of Powers, it sets out a federal structure and guarantees certain individual rights. These rules have remained largely unaltered, but they require elaboration and interpretation. Somebody has to decide what the Constitution actually means, and then interpret its relevance to specific cases.
  • The Supreme Court acts as the arbiter of the constitutionality of the acts of the legislature and the executive. In the words of Alexander Hamilton in The Federalist Papers (78) the duty of the Court ‘must be to declare all acts contrary to the manifest tenor of the Constitution void’.
  • Judicial Review developed from the time of the Marshall Court, and the convention means that the Court can declare as ‘unconstitutional’ any action or statute of the federal or state governments which are out of line with the Constitution. Interpreting the meaning of the Constitution is a key function.
54
Q

What is judicial review?

A
  • This is the most important power of the Supreme Court , being the main check on the executive and legislative to declare any laws on decisions they make to be unconstitutional
  • Judicial review is the power of the judiciary to examine and invalidate the actions undertaken by the legislative and executive branches of both federal and state governments
  • Appellate jurisdiction is the ability to review lower court decisions
55
Q

What things can the SC review judicially?

A

1) Congressional laws (statutes) - as judicial review is a form of appellate activity, it involves upholding or affirming the validity of laws or invalidating them - this invalidation was not common before the 20th century, and if the court were always striking down congressional statutes it would be hard to know what laws to follow and this contradicts one of the main things that courts are required to do in creating expectations and predictability
- They also do not overrule laws often as this would make the court seem too political and people would stop trusting its judgements - its power largely stems from its prestige and reputation for being impartial and above politics

2) State actions - laws passed by state legislatures and by state officials, including state police, and this power originates from the Supremacy Clause of the Constitution - whenever civil rights are expanded, this is usually due to state laws such as Brown vs Board of Education

56
Q

What things can the SC review judicially? cont.

A

3) Federal Bureaucratic Agencies - this is usually deferred to the bureaucracy’s expertise if the intent is lined up with the legislature; the court almost never strikes down congressional delegation of power to the executive

4) Presidential actions - the court defers to the President especially in areas of national security, but a classic example of the Court overturning executive action in U.S. vs Nixon where the claim of executive privilege was denied and the justices forced Nixon to turn over his recordings in relation to the Watergate Scandal
- More recently, the President’s authority to deny habeas corpus to suspected terrorists in Rasul vs Bush was limited

57
Q

What is the Supremacy Clause and how does it relate to judicial review?

A
  • The Supremacy clause gives the Court the authority to rule over state laws, but the power of judicial review comes from the Court itself through the case of Marbury v Madison (1803)
  • Justice Marshall rules that the court had the power to review, uphold, and strike down executive actions pursuant to the Judiciary Act of 1789 and in order to do so involved striking down part of that federal law; he ruled Marbury had a right to the commission, but the SC could not grant his writ because the law directing them to do so was unconstitutional

Why this was good -

  • Thomas Jefferson became president before the case came before the court, a Democratic Republican, whereas Marbury, Adams and Marshall were all Federalists and so by ruling against his own party, Marshall made a decision favourable to Jefferson and so likely to be supported
  • Marshall’s ruling took the power of the writs of mandamus away from the court, making it look weaker, whilst at the same time giving the Court the power to declare the law that had granted it the mandamus power in the first place unconstitutional, therefore strengthening the court long-term for the power of judicial review
58
Q

Why is judicial review good?

A

Judicial review allows the constitution to stay updated with modern society.

  • Some say that judicial review is just judges making laws and thus an anti-democratic usurpation of legislature’s power - however, this ruling has longevity as SC precedents are binding on future SC too because of the stare decisis principle (let the decision stand)
  • This doesn’t mean that future SC’s can never overturn the decisions of prior Courts, it’s just that it is avoided wherever possible
  • This idea of precedent is one way that judges can be said to make laws - appellate decisions are like common law in that they are binding on future courts and constrain their decisions, and because they do not have to be grounded in a specific statute
  • Other courts have to follow their interpretation of the law, and this interpretation has the effect of redefining the law without rewriting the statute
  • On the other hand, appellate decisions are technically not common law in that they are only binding on courts, not executive agencies or legislatures, but they are an indication of how courts and legislatures about how courts will rule in the future
59
Q

How does the case of Miranda v Arizona relate to judicial review?

A
  • Miranda vs Arizona provided the Miranda warning which is the right to remain silent; in this case, the SC threw out Miranda’s conviction because he hadn’t been told he had the right to remain silent - the court did not rewrite Arizona’s law but it sent a message to their law enforcement agencies and the agencies of other states that in future courts would throw out convictions of defendants that had not been informed of their rights
  • As a result, police procedures changed in every state, and now the police are supposed to read the Miranda Rights to anyone they arrest