US Supreme court Flashcards
How many justices are their in the SC?
9 One chief justice and eight associate justices
Who nominates supreme court justices?
By the president but need to be confirmed by a simple majority vote of the senate
How long are justices appointed for?
Life, usually leave voluntarily, resignation or on dying
If necessary they can be impeached, and if found guilty removed the office
Who’s the chief Justice?
John Roberts Appointed by George Bush in 2005
Is the supreme court in the US more established than the UK Supreme Court?
Yes, as UK was only founded in 2009
What are the 2 main strands of judicial philosophy?
Strict constructionists/originalists
Loose constructionists/living constitution
Originalism tends to:
- interpret the constitution in a strict, literal fashion
- favour state government rights over federal government power
- lead to an outcome that is often seen as being ‘conservative’
- Try to interpret the constitution in line with its or final meaning and intent
- Be appointed by republican presidents
Loose constructionists tend to:
- interpret the constitution in a loose fashion
- favour federal government power over state government rights
- read elements into the document that they think the framers would have approved of
- see the constitution as a living, dynamic document, which should be adapted to take account of the views of contemporary society
- Seen as liberal justices
- appointed by democratic presidents
A loose constructionist appointed by a liberal justice?
Sonia sotomayor
Obama
A strict constructionist appointed by a republican president?
Brett Kavanaugh Trump
What’s a swing justice? and example
a justice that’s quite liberal
Justice Anthony Kennedy
Define strict constructionist
A supreme court justice who interprets the constitution, strictly or literally and tends to stress the retention of power by individual states
Define originalism
Where a supreme court justice interprets the constitution in line with the meaning or intent of the framers at the time of enactment
Define loose constructionists
A supreme court justice who interprets the constitution less literally and tends to stress the broad grants of power to the federal government
Define living constitution
The constitution considered as a dynamic, living document, interpretation of which should take account of the views of contemporary society
Define liberal justice
A SC justice who is usually a loose constructionist and generally interprets the constitution in ways that give people more freedom
Define swing justice
The pivotal justice in an otherwise evenly balanced court, who will often be in a position of casting the deciding vote
What’s the appointment process?
- A vacancy occurs
- The president instigates a search for possible nominees and interviews shortlisted candidates
- The president announces their nominee
- The Senate judiciary committee holds confirmation hearings on the nominee and makes a recommendatory
- The nomination is debated and voted on in the full senate. A simple majority vote is required for confirmation
What are the factors that affect a presidents choice of nominee?
- Shares a similar judicial philosophy to the president
- Is quite young, meaning they are likely to remain on the court for longer
- is likely to be acceptable to a majority of the senate (especially important if the presidents party is in the minority)
- has an uncontroversial background - from both a judicial and personal point of view
- if going to be highly rated professionally
- has relevant experience
How has the confirmation process changed over recent years?
supreme court nominees used to be approved mostly by overwhelmingly bipartisan votes
Nowadays although rejections are still rare, confirmation votes are much more likely to be along party lines
Criticisms of the appointment process? Political nominations
Presidents have tended to politicise the nominations by attempting to choose justices who share their political views and judicial philosophy
EXAMPLE obama with Kagan
Criticisms of the appointment process? Senate political
The senate has tended to politicise the confirmation process by focussing more on hot button issues eg womens rigjts than on qualifications
What are some criticisms of the appointment process?
Senate judiciary committee
Members of the senate judiciary committee from the presidents party tend to ask soft questions of the nominee
Criticisms of the appointment process? Opposition senate judiciary committee
Members of the senate judiciary committee, from the opposition party attempt, through their questions, to attack or embarrass the nominee rather to elicit relevant information
Criticisms of the amendment process?
Party Lines and media
Justices are now frequently confirmed on party line voted
Eg Kavanaugh
The media conduct a feeding frenzy often connected with matters of trivia
Why are judicial appointments often regarded as the most important nominations?
- they occur infrequently
- they are for life
- just one new appointee to a 9 member body can significantly change its philosophical balance
- the SC had the power of judicial review
- their decisions will profoundly affect the lives of ordinary Americans for generations to come
Is the power of judicial review mentioned in the constitution?
No
It was ‘found’ by the court in Marbury V Madison 1803 regarding a federal law
Why does the court have political importance?
Because it rules on key political issues such as the rights of racial minorities, capital punishment, gun control and freedom of speech
What does the court into because of its political influence?
A quasi- legislative body
because the effects of its decisions have almost the effect of a law having been passed by congress
Turns the court into a third house of the legislature, a political institution
Define judicial review
The power of the SC to declare acts of congress, actions of the executive, or Acts or actions of state governments unconstitutional
Define judicial activism
An approach to judicial decision making that holds that judged should use their position to promote desirable social ends, even if that means overturning the decisions of elected officials
What’s an activist court?
one that sees itself. as leading the way in the reform of US society
Judicial activism strives for what?
Acting as a safeguard of civil rights and liberties
In some cases how can judicial activism be seen?
As legislating from the bench by an imperial judiciary
Define judicial restraint
an approach to judicial decision making that holds that judges should defer to the legislative and executive branches, and to precedent established in previous court decisions
Define imperial judiciary
A term used by critics to describe an activist judiciary that allegedly exceeds its constitutional powers and attempts to overrule federal or state law rather than interpret the law.
The term is used to criticise unelected judges having too much power
Roe V Wade
Guaranteed a woman’s right to choose abortion
District Of Columbia V Heller
guaranteed individual gun ownership rights
Obergefell V Hodges
Guaranteed same sex marriages
What’s a restrained court?
Is one that is more inclined to accept the actions and decisions of elected officials
How do restrained courts see congress and president?
as the shapers of US society not themselves
Zelman V Simmons - Harris
the court upheld an ohio state programme giving financial aid to parents, allowing them, if they so choose, to seek their children to a religious or private school
Significance - acknowledged that state government money could be used to pay for children attending religious private schools
Town of Greece V Galloway 2014
The court allowed legislative bodies to begin meetings with prayer
Significance - strengthened individuals rights to practise their religion in public even in state constituted and state funded bodies
Burwell V Hobby Lobby stores inc
Significance strengthened individual rights of christian business executives to run their companies along lines that agreed with their religious beliefs
Mcconnell V Federal Election commission
Significance - limiting campaign finance is not incompatible with the freedom of speech provision of the constitution
Citizens United V FEC
Significance - opened the door to unlimited spending by cooperations in election campaigns, mostly funnelled through political action committees
McCutcheon V FEC
Significance- reaffirmed giving of money to candidates and PACs as a fundamental right
District of Columbia V Heller
Guaranteed individual gun ownership rights
Mcdonald V City Of Chicago
Extended the rights announced in Heller to state and local governments
Never before had the courts ruled this interpretation of the 2nd amendment
Roper V Simmons
The court was clearly seen as telling us what 18th century words mean in the 21st century USA
what’s a conservative justice?
Justices with a narrow view of the constitution, a term usually used to refer to strict constructionists who try to interpret the constitution in a literal way rather than loose manner
Is the SC a political institution?
Yes appointment
Members are appointed by a politician , the president
Appointments are confirmed by politicians, the senate
Is the SC a political institution?
Yes decisions on issues that feature in elections
For example gun laws, abortion, marriage equality over which the 2 main parties disagree on
Is the SC a political institution?
Yes quasi legislative effect
Some of its decisions have a quasi legislative effect, it is as if a new law has been passed, and passing laws is what politicians do
Some have described the court as a third house of legislature
Is the SC a political institution?
No judges
They’re judges not politicians
the court is independent, not subject to political pressure
Is the SC a political institution?
No party politics
Judges do not involve themselves in party politics, elections, campaigning or endorsing candidates
Is the SC a political institution?
No politically neutral
No such thing as a democratic or republican justice, members make decisions based on legal and constitutional argument, not political ideology
The SC and federal government power
Trump V Vance 2020
The court shows it’s power to say what congress and the president can and cannot do according to its interpretation of their respective constitutional powers
Checks on the power of the SC
Checks by congress
- senate has the power to confirm or reject appointments
- congress had the power of impeachment
- Congress can initiate constitutional amendments that would have the effect of overturning the courts decision
Checks on the SC by the president
- can nominate justices
- president can decide whether to throw their political weight behind a decision of the court
Other checks on the SC
- no power of initiation
- no enforcement powers
- public opinion
Does the SC have too much power?
Yes judicial review
The court gave itself the power of judicial review
It has declared more acts of congress unconstitutional as the decades have passed
It has made decisions that are out of line with the majority of public opinion
It is an unelected body
Largely unaccountable body
Does the SC have too much power?
Yes abuse of power
Some critics would say it has abused its power to bring about significant policy change eg abortion
It could be seen in this way when justices believe in a living constitution
Does the SC have too much power?
No
It’s checked by congress, which may initiate constitutional amendments, effectively overriding court decisions
Congress has the power of impeachment
It has no initiative power: it must wait for cases to come before it
It is dependant upon the rule of the law and other branched of government to enforce its decisions
Does the SC have too much power?
No public opinion
Is a restraining force on the courts power
It is checked by the words of the constitution where they are not precise and not open to interpretation by the court
