US Government; The Judiciary - powers of the SC Flashcards
What federal courts exist in America?
- 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.
How do cases work their way up to the SC?
- 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.
Why are the 13 federal Courts of Appeal significant?
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.
What is the power of judicial review and how does it relate to the constitution?
- 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
In which cases does the SC have original jurisdiction?
- 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.
What did the Marbury v Madison case mean for the SC? (1803)
- 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.
What was the significance of Fletcher v Peck (1810)?
- 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.
How is the power of judicial review justified?
- 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
What stages do cases go through once they reach the Supreme Court?
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
Limitations on power - What influence does Congress have over who sits on the Supreme Court?
- 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.
Limitations on power - How can Congress overturn the Supreme Court’s decisions?
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.
Limitations on power - Why is time such a big limit on the Supreme Court’s influence?
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.
Limitations on power - Why have some important constitutional questions gone unanswered?
- 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.
Limitations on power - Why did the decision in Brown v. Board of Education have only a limited impact on segregated schools?
- 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.
Limitations on power - How did FDR influence the decisions of the Supreme Court in the 1930s?
- 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.
Limitations on power - What is stare decisis? How does it limit the Supreme Court?
- 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.
Limitations on power - Why, despite the principle of stare decisis, are the Supreme Court Justices unable to bind future courts?
- 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.
Appointment of the SC - What protects the independence of the SC?
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.
Appointment of the SC - Nominations
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.
Appointment to the SC - Why are nominees scrutinised?
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.
Appointments to the SC - What role does the Senate Judiciary Committee play in the confirmation process?
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.
Appointments to the SC - Why was the 2005 nomination of Harriet Miers unsuccessful?
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.
Appointments to the SC - How have Senate confirmation votes changed since the 1980s?
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.
