US SC and civil rights Flashcards
1
Q
List criticisms of judicial activism
A
- Unelected and therefore UNACCOUNTABLE
- SC can STRIKE DOWN Acts of Congress with limited checks, breaches SoPs
- SC can strike down state law, undermining FEDERALISM
- The court can OVERRULE itself without the constitution changing, acts politically rather than neutrally
2
Q
List criticisms of judicial restraint
A
- If the SC isn’t different from the elected branches, this might allow laws and policies which directly CONTRADICT the constitution to stand
- Frequent CYCLES means elected branches don’t necessarily handle CONTROVERSIAL issues
- The constitution would be OUTDATED if the SC could’t interpret in a modern way
- The power of judicial review could be considered an IMPLIED power
3
Q
List some factors which ensure the independence of the US SC
A
SoPs
Appointment- Senate and Pres.
Life tenure- no threat of removal
Salary- no punishment/ reward via salary
The American Bar Association- not politically motivated
4
Q
Give 3 strengths of the appointment process
A
- Ensures INDEPENDENCE- highly scrutinised
- Ensures judicial ABILITY- scrutiny means highly experienced and qualified
- Ensures PERSONAL suitability- lack of bias and character flaws- (Sotomayor questioned for racial and gender bias in Senate )
5
Q
Give 3 weaknesses of the appointment process
A
- Nomination is POLITICISED- based on President’s ideology
- The ratification process is POLITICISED- partisan,
- INEFFECTIVE- nominees withhold information on their ideology and views on recent constitutional issues (eg Bork (1987) stating that Roe v Wade had little to no legal basis)
6
Q
Give 4 factors which affect the President’s choice of nominee
A
- Judicial ability
- Ideology
- Social characteristics/ demographics
- Political motivation
7
Q
Name 2 cases which removed existing public policy through judicial review
A
Citizens United v FEC 2010- 1st amendment and elections, money
Shelby County v Holder 2013- Overturned Voting Rights Act 1965, no case under 14th amendment, state’s decide own election laws
8
Q
3 ways in which campaigners try to help the protection of racial rights
A
- Demonstrations and civil resistance
- Legal methods
- Voter registration drives
9
Q
Give 3 arguments in support of AA
A
- Improve SOCIO-ECONOMIC status of minority and close the gap in income and education
- Reduce racist ATTITUDES by helping overcome de factor segregation. Greater interaction between racial groups got overcome prejudice
- It WORKS- where AA has ended there has been a decline in racial minority enrolment in top colleges
10
Q
Give 3 arguments against AA
A
- Its a from of racial DISCRIMINATION- breaks 14th AMENDMENT, illogical
- Wrong FOCUS- focuses on jobs and universities rather than early years
- DOESN’T WORK- racial inequality still persists
11
Q
List and explain 3 features outlined within the constitution that help the SC protect rights
A
- JUDICIAL REVIEW-
Overturn other institutions and elected bodies
Based on constitutional sovereignty
Especially powerful with judicial activism - INTERPRETATION-
Vague (apply personal views)
Detailed constitution would undermine their power - INDEPENDENCE-
Court is protected from external pressure
Justices make judgements based on constitutional sovereignty and protects judicial review and interpretative powers
Amendment process means its hard to overturn court decisions
12
Q
List and explain 3 limits on the SC that prevent the protection of rights
A
- WORDING of the constitution-
Bound by constitutional sovereignty - LIMITED JURISDICTION-
Only deal with constitutional issues
Weaker than other branches, can’t make policy
Cant deal with annual budget and foreign policy - EXTERNAL PRESSURE-
Some external influence and restraint eg pressure groups and public opinion
President’s authority can undermine the court
Overturned via constitutional amendment
13
Q
3 points in favour of originalism
A
- Restricts PERSONAL influence
- Gives Constitution greater AUTHORITY
- Any changes or progress should be done by the DEMOCRATIC process, not by the unelected unaccountable judges
14
Q
3 points in favour of a Living Constitution
A
- Keeps RELEVANT and up to date, reflects modern SOCIETY
- Originalists are no more objective than Living Constitutionalists, impossible to know exact views of FFs
- Deliberately VAGUE by FFs, allowing judicial discretion.
15
Q
How can Congress influence the balance of the court?
A
Congress can change the number of justices
16
Q
What are some other words to describe the ideology of a more liberal judge?
A
Loose constructionist
Living Constitutionalist
17
Q
What are some other words to describe the ideology of a more conservative justice?
A
Strict constructionist
Originalist
18
Q
Give an example case of conservative judicial activism
A
Citizens United v FEC
19
Q
Give an example case of liberal judicial activism
A
Obergefell v Hodges (struck down laws of 13 states and DOMA, LGBTQ, overruling elected officials)
20
Q
Give an example of conservative judicial restraint
A
Glossip v Gross (continues lethal injection)
21
Q
Give and example case of liberal judicial restraint
A
Whole Woman’s Health v Hellerstedt (defence of Roe v Wade)
22
Q
Give 6 points that suggest the court is imperial
A
- Unelected, therefore UNACCOUNTABLE
- IMPEACHMENT process too hard
- Constitutional AMENDMENT process too difficult
- Overturn branches which have a MANDATE
- Judges go beyond the Constitution, eg new RIGHTS which aren’t mentioned
- More cases (8,000) are brought to the SC than they can hear which means they are SELECTIVE on the issues it wants to rule on
23
Q
Give 5 points which suggest the court is not imperial
A
- Cannot ENFORCE its rulings
- SC cannot rule on any case- REACTIVE
- AMENDMENTS overturn court
- WORDING of the constitution limits judges from interpreting based purely on personal agenda and ideology
- Can be IMPEACHED
24
Q
Give 5 points which suggest the SC is judicial (and not politicised)
A
- Based on CONSTITUTION and its wording not personal agenda
- They have LEGAL EXPERIENCE not political
- Cannot ENFORCE, needs directly elected branches to do so
- There are large majority/ UNANIMOUS decisions despite ideological differences eg Kelly v US 2020
- The court uses legal principles like STARE DECISIS, which helps with LEGITIMACY
25
Give some points which suggests the SC is politicised
1. Striking down acts of ELECTED branches and influencing ELECTIONS (eg Bush v Gore and Citizens) is inherently political
2. APPOINTMENT process
3. Each justice has their own IDEOLOGY or agenda
4. AMICUS CURIAE briefs means the court is influenced by pressure groups
5. Doesn't always address CONTROVERSIAL issues such as gerrymandering and gun control
26
Define judicial activism
A justice should use their position to promote desirable social ends by overturning political institutions or court precedent
27
Define judicial restraint
The SC's role should be minimal, and decisions should be deferred to elected branches (eg Clarence Thomas)
28
Define stare decisis
Judicial principles
| 'let the decision stand'- justices should refer to, and where possible, adhere to the previous rulings of the Court
29
What is the power of judicial review?
The ability of the SC to review the actions and laws of any other body, and overturn anything deemed unconstitutional
30
What are the main FFs intentions?
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Protecting minority rights
Constitutional sovereignty
SoPs
Checks and balances
Uphold federalism
(also democratic principles)
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31
What case established judicial review?
Marbury vs Madison 1803
| declared an act on Congress unconstitutional
32
Name two cases which influenced public policy on election spending
Citizens United v FEC 2010
1st- money is free speech, SuperPACs
McCutcheon v FEC 2014- remove individual cap
33
Name two cases which influenced public policy on healthcare
NFIB v Sebelius 2011- Upheld Obamacare
King v Burwell 2015- upheld Obamacare
34
Name a case which influenced public policy on the environment
Michigan v EPA 2015 undermined Obama's environmental policy
35
Significant amendments and the rights protected in them
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1- free speech, religion, assembly
2- Right to bear arms
4- Unreasonable searches and seizures
8- cruel and unusual punishment
10- reserved rights of the states
14- equal protection
15- right to vote (race)
19- right to vote (gender)
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36
Two SC rulings that modernised rights protection
Caetano v Massachusetts 2016- stun guns etc full under bearing arms despite not being invented by the time the constitution was written
Carpenter v US 2018- Phone data counts as a search therefore a warrant is required
37
Name 2 cases that could be considered to undermine federalism
14th- Obergefell v Hodges 2015
Same sex marriage legal in all states
10- Gonzales v Raich 2005- gov. Can ban growing of marijuana in states under interstate commerce clause
38
Name a case that could be considered to uphold federalism
Shelby County v Holder 2013
| Overturned Voting Rights Act 1965 under 14th amendment
39
Name a case that could be considered to undermine rights protection
14th- Burwell v Hobby Lobby Stores 2014- Obamacare and birth control despite religious beliefs, all women justices dissented
40
Name a case which checked exec. power
Hamden v Rumsfeld 2006 5-4 Bush administration could not try terrorist suspects at Guantanamo Bay
41
Failed nomination that suggests the appointment process is partisan
Obama's nomination of Garland was blocked, allegedly as it was his last year, however, Trump was able to appoint Coney Barrett
42
Justice which upheld mandate
Roberts joining lib. side to respect Obama's mandate on healthcare
43
Give two controversial quotes from Sotomayor
‘I hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion than a white male who hasn’t lived that life’.
'Judges make policy'
44
Which groups lobbied against Kavanaugh?
MeToo
| Pro-choice group NARAL
45
Quote from Truman on independence
'Whenever you put a man on the SC, he ceases to be your friend'
46
A case in which justices voted against the person who appointed them
Trump v Vance 2020
| 7-2 majority
47
Name a failed appointment which highlights strengths of the appointment process
Bush nominated Harriet Miers in 2005- lack of constitutional experience highlighted
48
Name a pressure group sponsored case that protected racial rights
Brown v Board 1954- sponsored by NAACP
49
An example of a group that went through the courts to defend AA
2014- legal method
| Coalition to Defend Affirmative Action
50
Campaign to encourage ethnic minorities to vote
2016- nativevote.org- Native Americans to register to vote
51
Successes in voting rights
1965 Voting Rights Act- prevented gov. from introducing processes that discriminate
Minority voter registration therefore increased
52
Lack of success in voting rights
Turnout among black and Hispanic voters is lower- illegitimate, and illegitimate representation
Shelby v Holder lead to voter ID laws that disproportionately affect minority voters
Husted v Randolph Institute 2018- SC upheld Ohio's 'voter caging'
53
Successes in representation
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117th- highest levels, 23% of Congress is not white
House- 13% black, representative of US
Senate, 3 black, 6 Hispanic
SC more diverse also
Kamala Harris and Obama 2008
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54
Lack of success in representation
Still underrepresented- 60% US white, 77% of Congress
| Trump Cabinet least diverse since George Bush Senior
55
Successes in AA
Sotomayor said she stated she benefitted from AA programmes
| Has increased numbers
56
Lack of success in AA
Many states have banned AA- Schuette v Coalition Defend AA 2014 states have the right to use initiatives to end AA
Counter-productive
Informal segregation
57
Successes in immigration
Growing proportion of Hispanic voters- greater focus on immigration and issues that affect Hispanic voters
DACA and DAPA- Obama, undocumented immigrants and threat of deportation
Biden made the issue a priority- Jan 2021 introduce US Citizenship Act
58
Lack of success in immigration
Obama's failed DREAM Act
Key aspects of DAPA were suspended in 2016
Trump's attitude and building a wall
59
Executive on protecting racial rights (5)
1. Obama- AA helps to ensure 'the diversity of a workforce or student body'
2. TROOPS deployed to enforce legislation- Einshower SC's order to desegregate schools
3. REPRESENTATION- Harris and Obama
4. DACA 2012, DAPA 2014
5. APPOINTMENTS to the Civil Rights Commission and SC (Sotomayor's impact on AA)
60
Executive against the protection of racial rights (5)
1. Trump attempt to reverse DAPA and DACA
2. Trumps' cuts to Department’s Office of Civil Rights
3. T's failure to condemn Charlottesville white supremacists 2017
4. Bush's slow response to Hurricane Katrina (disproportionally affects, accusations of racism)
5. Most of Obama's immigration reform struck down
61
Congress protecting racial rights (3)
1. REPRESENTATION
2. BIPARTISAN SUPPORT- immigration reform under Biden for 'fair and humane system', Senate under Obama 2013, renew VRA in 2006
3. DEMOCRATS- Civil Rights Act 1964 and the Voting Rights Act 1965
62
Congress failure to protect racial rights (3)
1. ILLEGITIMATE- 2020, only 59.6% of black, eligible voters turned out, in comparison to the 61.4%
2. PARTISAN- Obama couldn't pass immigration reform after 2014, GOP filibuster of DREAM
3. FAILED- 2015 survey revealed that 495 out of 500 CEO’s of America’s top companies are white, and black Americans are more like to live in poverty and twice as likely to be unemployed
63
SC protect racial rights (4)
1. PROMOTED equality- Brown v. Board 1954 and Swann v. Charlotte-Mecklenberg 1971
2. IMMIGRATION- Arizona v. US 2012, Trump can't suspend DACA
3. AA- 2016 Fisher v Texas and 2003 Grutter vs Bollinger
4. AMICUS BRIEFS- NAACP’s on Trump V. Hawaii 2018 and the travel ban
64
SC failure to protect racial rights (5)
1. AA DAMAGES- Thomas, AA is condescending and prevents a truly ‘colour-blind’ society, stating that ‘Any policy that accepts the notion that blacks are inferior is a non-starter with me’
2. AA undermines 14th AMENDMENT
3. key sections of DACA struck down in Texas v US 2016
4. ASIAN AMERICAN groups discriminated against
5. Bound by WORDING
65
SC para topic- imperial
1. DESERVING of their power (or political not judicial)- appointments- Senate hearings vs Gorsuch, Harriet Miers
partisanship- Garland, quote Truman, Trump v Vance 2020,
Legal training and unanimous rulings- Kelly vs US
2. UNACCOUNTABLE, NO MANDATE-
can't allow contradictions to stand, need checks eg Hamden vs Rumsfeld 2006 cannot try terrorist suspects act Guantanamo
Non-ideological activism, eg Citizens v FEC and SuperPACs- however, affects elections- Bush v Gore 2000
Strike down- SoPs and Fed., Obergefell v Hodges 2014, but also NFIB v Sebelius
Does/ doesn't handle controversy due to unelected, eg abortion eg gun control, however handles abortion, upheld liberal restraint, Whole woman's health v Hellerstedt
3. CONSTITUTION'S WORDING- wording allows for or prevents rights protection
Only handle constitutional issues, limited jurisdiction eg foreign policy, amendments, select from 8000
Checks- impeachment, amendments, cannot enforce, number of justices eg Dem. increase to 13, FFs made to reflect society
Overrule itself eg Plessy vs Ferguson and Brown v Board, vague allows for update and rights protection, Carpenter v US 2018
66
SC para on topic- political
1. APPOINTMENT process-
partisan eg Garland, other external pressure, NARAL, NAACP
no election cycles, no issues of controversy or trying to impress and win votes,
legal training- Miers
Withhold eg Gorsuch, controversial issues vs Sotomayor
2. Judges affect PUBLIC POLICY-
public policy, non-ideological- Glossip v Gross, Citizens
amicus briefs, external eg NAACP
Mandate- NFIB v Sebelius
legal training and unanimous, Kelly v US 2020
limited jurisdiction eg foreign policy, cannot allow contradictions to stand, Hamden v Rumsfeld, Bush v Gore eg Shelby v Holder
Strike down- eg Obergefell vs Hodges 2014
3. Personal IDEOLOGY- reactive v selective, 800
unanimous eg Kelly v US 2020
Judges make policy, insignificant as court rarely handles controversial issues, originalism doesn't interfere with the politics, AA eg Fisher v Texas 2016
Up to date- Carpenter v US
overrule eg Brown v Board, stare decisis
Ideology- Burwell v Hobby Lobby 2014, all female justices dissented, religion and Obamacare
67
SC para on topic- independent and neutral
1. APPOINTMENTS- withhold eg Gorsuch,
partisanship eg Garland,
vote against person who appointed, Trump v Vance 2020 7-2, Kavanaugh and Gorsuch
Neutral umpire- Roberts not trying to impress voters, controversial issues
Hearing- Thomas, Kavanaugh, Sotomayor
Life tenure and fixed salary- no binding to party
2. PERSONAL agenda-
overrule itself eg Brown v Board, but also stare decisis 'making policy',
unanimous decisions therefore judicial eg Kelly v US 2020,
reactive v selective, 8000 cases, ideological balance of the court- Sotomayor's affects on AA, and 'wise Latina woman'
no mandate- respect for mandated branch eg NFIB v Sebelius
Whole Woman's Health v Hellerstedt
3. Bound by CONSTITUTION- its powers and its wording, amendments and impeachment, external pressure due to democratic and pluralist environment eg NAACP,
constitutional issues and limited jurisdiction
updated, Carpenter vs US 2018
Power of judicial review implied- checks on both the states and SoPs- Gonzales v Raich 2005, Obergefell v Hodges 2014. Hamden v Rumsfeld 2006, Texas vs US
originalism v activism, cant allow contractions to stand
68
Quote to include in introduction
Former justice HUGHES- ' We are under a constitution, but the constitution is what the judges say it is'
GLAZER- Imperial SC theory
SOTOMAYOR- The SC is where policy is made
69
Para titles on Imperial
1. Deserving/ appointments
2. Unaccountable/ public policy without mandate
3. Bound/ enabled by constitution
70
Para titles on politicised
1. Appointments
2. Public policy
3. Ideology/ agenda
71
Para titles of independent
1. Appointments
2. Ideology/ agenda
3. Constitution
72
Para on appointments (/deserving) (3)
1. Hearings
2. Partisan
3. Legal exp./ unanimous
73
Para on public policy (/accountable) (5)
1. Pres. contradictions
2. Controversial
3. Strike down
4. Mandate
5. Limited jurisdiction
74
Para on constitution (5)
1. Amendments, enforce, numbers
2. Overrule
3. Updated
4. Limited jurisdiction
5. Judicial review implied, Gonzales v Raich
75
Para on ideology (5)
1. Reactive v Selective
2. Unanimous v overrule
3. Personal agenda eg Hobby Lobby
4. Mandate (eg EPA v Michigan)
5. Judicial activism not ideological
