US supreme court Flashcards

Question

Explain the stage of presidential nominations as a part of the nomination process for SC

Answer 1

Presidential nominations - The P can choose whomever he likes to fill a vacancy. It is expected that the nominee will have judicial experience and pass the senate vote. They are likely to share the P's ideology but he may consider the Court's demographic too. Examples: - Bush and Trump both nominated Js who were likely to be conservative in their rulings (Roberts, Alito, Gorsuch and Kavanaugh), while Obama appointed those with a likely liberal outlook (Sotomayor and Kagan) - Bush nominated Miers who had already worked with him but she had no experience as a judge - nomination withdrawn - Douglas Ginsbury withdrew his nomination in 1987 after allegations surfaced of smoking marijuana as a student

Answer 2

American Bar Association Rating - Not a constitutional requirement, but the ABA offers a professional opinion rating: 'unqualified', 'qualified' or 'well qualified' for nominees. Examples: - All but one of the current Js on the court hold a 'well qualified' rating - J Thomas was rated as 'qualified'. This and allegations of sexual harassment made it very difficult for him to be confirmed by the Senate

Answer 3

Senate Judiciary Committee Hearings - Not a constitutional requirement but the senate judiciary committee holds hearings where it can question the nominee. At the end, a vote is held. As it is not constitutional, this vote serves only as a recommendation to inform the whole senate vote. Examples: - During the hearings of both Kavanaugh in 2018 and Thomas in 1991, allegations of sexual misconduct were levelled at nominees. The committee was split 7-7 on whether to recommend Tomas - Bork was rejected by the committee 9-5 and subsequently faced defeated in the full senate vote - Kagan's hearings included humorous exchanges

Answer 4

Senate floor vote - Following the recommendatory vote from the Senate Judiciary Committee, the whole senate must vote to confirm the appointment. Following the 2017 reforms, this vote can no longer be filibustered and requires a simple majority Example: - Bork was rejected in 1987 by a 42-58 vote as he was involved in the Watergate affair - Thomas was narrowly approved to the SC by a 52-48 vote in 1991 - The votes of all nominees since 2006 have been dominated by party politics, compared to votes confirming Js such as Ruth Bader Ginsberg in 1993 who was confirmed 96-3

Answer 5

The unexpected retirement of Justice Anthony Kennedy was announced in June 2018. In his first 2 years, it appeared that Trump was going to be able to appoint two justices to the SC. The first, the appointment of Neil Gorsuch had courted controversy as he replaced Antonin Scalia, who had died in April 2016 and whom P Obama had nominated Merrick Garland to replace. Garland's appointment was held up by the senate, however, and nearly a year after Scalia's death, Gorsuch was appointed.

Answer 6

The nomination to replace Kennedy would equally court controversy. In replacing Scalia with Gorsuch, Trump had replaced a conservative justice with another conservative. Kennedy, however, was known as the 'swing justice'. the informal title for the justice who sits in the ideological centre of the nine. By comparison, Kavanaugh would become one of the most conservative Justices on the Court and the resulting Court would be considerably more Conservative in its outlook.

Answer 7

This made the appointment of Kavanaugh of great political interest and the events of his confirmation only highlighted and in some cases added to the controversy. During his appointment process, allegations came from Professor Christine Blasey Ford that she had been sexually assaulted by Kavanaugh while at college. This was all the more significant given the #MeToo campaign of the preceding year. In addition, to the ideological controversy, the appointment process become embroiled in these accusations. Protests took place inside and outside of Congress as well as across the nation and in the constituency officers of members of Congress. Interest Groups such as Pro-choice NARAL lobbied against Kavanaugh and organised protests while media headlines and speculation abounded around the globe about the suitability of his appointment

Answer 8

10 July 2018 - Kavanaugh is nominated to the SC by P Trump 31 August - The ABA issued a rating of 'well-qualified' for Kavanaugh 4-7 Sep - Senate Judiciary Committee hearings are held - these are dogged by protests in the committee room and accusations of sexual assault by him on Professor Blasey Ford 17 Sep - The Senate Judiciary Committee announces the nomination will not proceed until interviews of both Ford and Kavanaugh have been conducted 20 Sep - The original date planned for the vote of the Senate Judiciary Committee is postponed 24 Sep - Kavanaugh appears alongside his wife in an interview with Fox news denying all allegations against him 27 Sep - Both Ford and Kavanaugh give evidence before the Senate Judiciary Committee 28 Sep - Committee member Senator Flake is caught on camera in congress being confronted by survivors of sexual assault, challenging his support of Kavanaugh. In the same day, he is approved by the committee 11-10 and Trump orders an FBI investigation into the allegations. 4 Oct - The FBI delivers it findings to the Senate Judiciary Committee 6 Oct - The senate approves Kavanaugh's appointment 50-48 with just one democrat voting for him, all republicans vote for him. Republican Lis Murkowski opposes the appointment but abstains as a republican colleague who would have voted for the appointment is absent, attending his daughter's wedding 8 Oct - Kavanaugh is sworn in as the 114th Justice of the SC

Answer 9

Over 200 protestors were arrested during the Senate hearings with more arrests when protestors occupied the offices of R senators on the days after allegations of sexual assault were levelled at him. Following the evidence session on 27 September, Kavanaugh was ridiculed for the anger he showed and the evidence he offered. Saturday Night Live opened with a 13 minute Sketch of the evidence sessions, mocking him. That a primetime show, dedicated so much to the sketch speaks to the cultural impact of this process and the politicisation and political ramifications of the appointment process

Answer 10

When a vacancy arises on the SC, the P has several factors to consider when choosing a nominee - judicial experience - the outgoing justice - the demographics of the SC - the ideology of the nominee

Answer 11

Judicial experience - It is expected that the nominee should have experience as a judge and be qualified in law. This was one of the main reasons Harriet Miers was criticised in 2005. The ABA lends the P support in this area, by rating candidates for this role. The only current member of the SC who was not serving on the circuit courts when appointed in Elena Kagan, who was the solicitor general for P Obama. The most likely recruitment for SC Justices is the federal courts of appeals, the courts that are one tier below the SCs. Other pools of recruitment include the state courts and the department of justice

Answer 12

The outgoing justice - Often the P may be expected to replace a justice on a 'like-for-like' basis in terms of ideology. Certainly these types of nominations are less likely to face extreme opposition in the Senate. However, neither Alito nor Kavanaugh can be claimed to be like-for-like replacements, both being considerably more conservative than their predecessor.

Answer 13

The demographics of the SC - A P may wish to widen the representative nature of the SC through his appointments. Obama appointed two women, doubling the number that have ever served on the Court and appointed the first Hispanic person to the Court Sonia Sotomayor.

Answer 14

The ideology of the nominee - Almost all nominees are qualified in law and usually has been a judge on a lower court. From the rulings they made, it is possible to try and ascertain what their ideology is and whether it fits with the Ps. This is not always successful but it would be rare for a P to be entirely wrong. Even in the case of Anthony Kennedy, he remained a conservative just a moderate one. It may also be that the P listens to advice from those close to him. Kavanaugh appeared on a list of the right-wing think-tank, the Heritage Foundation before Trump nominated him.

Answer 15

Because of the life tenure that the justices enjoy and the great importance of the SC, Presidents regard SC appointments as the most important part of their presidency. Most other appointments that P's make last only for as long as the P remains in office. SC justices will, politically speaking - almost certainly outlive the P. In 2017, Reagan appointee Kennedy was still on the Court almost 30 years after Reagan left office. However, some Ps have had the opportunity to make a SC appointment as a vacancy has not arisen during their tenure. No vacancies occurred on the Court for just short of 11 years between August 1994 and July 2005 so the court remained unchanged throughout this period

Answer 16

The current court: While the role of the judiciary is to be neutral, it is possible to see the ideology of an individual justice in their interpretations. It is unlikely that a justice would describe themselves as ‘conservative’ or ‘liberal’; however, some of the rulings they make can be categorised in this way. Nevertheless, justices have been known to defy the expectations of their ideology. The justice who is placed ideologically in the middle of the nine is commonly referred to as the ‘swing justice’. In cases which seem to have an ideological split on the Court, the majority decision is often a result of which way the ‘swing justice’ votes.

Answer 17

Ideology/Judicial Philosophy: The justices on the SC can be divided into different ideologies, however there is considerable overlap between some of these definitions. Strict/loose constructionists and originalism/living constitution are classifications which focus on the ‘how’ of judicial decision making, rather than ‘what’. The terms, liberal and conservative reflect the political ideology behind the decisions made. For each of the ‘pairs’ of ideologies in the table, a justice would be described as only one of them. However, it does not necessarily follow that a conservative justice would also be a restrained one (judicial restraint):

Answer 18

Conservative A J who is more likely to try and achieve rulings which produce a more limited federal government and uphold conservative ideals such as pro-gun and anti-abortion, Likely to interpret the Constitution literally

Answer 19

Liberal A J who is more likely to try and achieve rulings which produce greater equality for all, even if that means a larger federal government, and uphold liberal ideals such as LGBT rights and gun control. Likely to interpret the Constitution more broadly

Answer 20

Conservative v liberal ideology Conservative - A Judge who is more likely to try and achieve rulings which produce a more limited federal government and uphold conservative ideals such as pro-gun and anti-abortion, Likely to interpret the Constitution literally Liberal - A Judge who is more likely to try and achieve rulings which produce greater equality for all, even if that means a larger federal government, and uphold liberal ideals such as LGBT rights and gun control. Likely to interpret the Constitution more broadly

Answer 21

Strict constructionist A J who will stick to the wording of the Constitution as the text is written, without interpretation. This therefore includes protecting state power. These judges interpret constitution in a literal and strict way. The constitution and its principles seen as fixed and therefore should not be subject to the interpretation.

Answer 22

Loose constructionist A J who is more willing to interpret the wording of the Constitution broadly, which might include giving more power to the federal government. Loose constructionists took an approach to judicial-decision making whereby justices take a more active role by interpreting the constitution in a loose or literal fashion, beyond the literal meaning of the text. The approach is associated with the idea of the living constitution whereby the constitution can be reinterpreted and evolve over time

Answer 23

Strict constructionist A J who will stick to the wording of the Constitution as the text is written, without interpretation. This therefore includes protecting state power Loose constructionist A J who is more willing to interpret the wording of the Constitution broadly, which might include giving more power to the federal government

Answer 24

Judicial restraint A J who believes in a limited role for the SC, ruling only for the people in front of them in a case, and deferring to the elected, and therefore accountable branches where possible. Judges defer to the precedents established in previous supreme court judgements when making judicial decisions. Justices exercising judicial restraint place great importance on stare decisis which translates as 'to stand by that which is decided'. These judges are reluctant to overturn acts or decisions made by elected branches as they believe that the judicary are directly accountable to voters. They also refrain from making decisions that change society or shape public policy.

Answer 25

Judicial activism A J who is likely to use their position on the Court to achieve rulings that give desirable social ends as far as their ideology is concerned. This may include overturning previous Court rulings. Judicial activists judges make decisions with the intention of promoting desirable social ends and shaping public policy, without needing to defer to other branches of government or precedent. It can be used to limit the other branches of government, using judicial review of the court deems that laws or actions go beyond their constitutional authority.

Answer 26

Judicial restraint A J who believes in a limited role for the SC, ruling only for the people in front of them in a case, and deferring to the elected, and therefore accountable branches where possible Judicial activism A J who is likely to use their position on the Court to achieve rulings that give desirable social ends as far as their ideology is concerned. This may include overturning previous Court rulings

Answer 27

Originalism A belief that the meaning and interpretation of the Constitution is set by its original principles. It should not be subjected to broad interpretation considering modern advances. Originalists consider both the text of the constitution and the intents of the founding fathers when making judicial decisions

Answer 28

Living Constitution A belief that the Constitution is a living, organic and evolutionary document that can be changed through reinterpretation over time. Closely linked to loose constructionism

Answer 29

Originalism A belief that the meaning and interpretation of the Constitution is set by its original principles. It should not be subjected to broad interpretation considering modern advances Living Constitution A belief that the Constitution is a living, organic and evolutionary document that can be changed through reinterpretation over time. Closely linked to loose constructionism

Answer 30

with reference to the issue of capital punishment. One of the issues that the SC has had to address in recent decades is whether the death penalty is constitutional or whether it contravenes the ban on ‘cruel and unusual punishments’ in the Eight Amendment. To an originalist it is clearly constitutional as capital punishment was widely accepted when the Eight Amendment was written (1791) and therefore was not in the minds of the framers when they wrote these words – originalists base their constitutional interpretation on original intent. But those who believe in a living constitution might well argue that the death penalty is unconstitutional because, as Justice William Brennan – who was on the Court between 1956 and 1990 stated, it violates ‘the sparkling visions of the supremacy of human dignity of every individual’ that guided those who wrote the original text. To an originalist, the only way to get rid of the death penalty would be by legislation. To someone who believes in the Constitution as a living and evolving document, judicial interpretation can – and should – achieve similar ends.

Answer 31

Clarence Thomas (George H.W. Bush) John Roberts (George W. Bush) Samuel Alito (George W. Bush) Neil Gorsuch (Trump) Brett Kavanaugh (Trump) Coney Barrett (Trump)

Answer 32

Sonia Sotomayor (Obama) Elena Kagan (Obama) Ketanji Brown Jackson (Biden)

Answer 33

Despite these ideological divisions, the SC is far from divided on every case. In 2019 when there were five Conservative and four Liberal justices, approx 20% of cases were decided with a 5-4 vote, the most common decision issued by the Court was 9-0. This suggests that the ideological divisions that are so commonly cited, are not the deciding factor in a plurality, if not most cases. This in turn would suggest that there are factors other than personal interpretation and ideology that affect a justice’s decision. Most important among these would be the Constitution itself. With the only power of the Court being judicial review, the only thing the SC can base a ruling on is the Constitution.

Answer 34

The appointment process to the SC comes under scrutiny each time a vacancy occurs. Many of the strengths and weaknesses that are advanced are merely interpretations of the same point. - length of the process - politicisation of the process

Answer 35

The length of the process: The process from nomination to Senate ratification takes between 2 to 3 months, sometimes longer. While this is not a problem if the vacancy has been caused by a retiree who is willing to remain on the Court during the process, it is more problematic when the process is caused by a death (or impeachment). In this case, the Court would be left with only eight justices. In the event of a tie, the ruling of the Court from which the case was appealed would stand. When Obama’s executive order regarding DAPA (Deferred Actions for Parents of Americans – protecting from deportation, parents of children who were born in the US) was challenged in the SC, the death of Justice Scalia meant that there were only eight justices to bear the case. The 4-4 tie resulted in Obama’s executive order being struck down – perhaps if he had been able to appoint Garland to the Court, the policy could have been saved

Answer 36

Timeline of Supreme Court nomination 2016-17: 13 Feb 16 - Associate Justice Antonio Scalia dies 16 March 16 - P Obama nominates Judge Merrick Garland to fill the vacancy, but the R-controlled Senate takes no action, and the nomination expires 31 Jan 2017 - P Trump nominates Judge Neil Gorsuch to fill vacancy 20 March 17 - Senate Judiciary Committee begins hearings on Gorsuch’s nomination 3 April 17 - Senate Judiciary Committee votes 11-9 in favour of recommending his confirmation 7 April 17 - Senate votes 54-45 to confirm Gorsuch to the SC 10 April 17 - Gorsuch is sworn in as Associate Justice of the SC

Answer 37

The length of the process, however, helps to ensure that candidates undergo vetting and that they are suitable for the post on the SC. Harriet Miers’ withdrawal from the process was in part due to the critical reaction given to her lack of experience as a judge, with it therefore being unlikely that she would make it through the rigorous process. Given the power that judicial review gives to the Court, it is vital that the justices selected are deemed to be appropriate. The appointment process allows plenty of time for this as well as involving the expertise of a variety of bodies.

Answer 38

The Constitution recognised the importance of an independent SC. However, with the P nominating justices, and the Senate confirming them, the process has, predictably, become politicised. The appointments since 2006 have seen party-line votes in the Senate, with relatively few defections across the aisle. Those nominees put forward by Rs have been supported by Rs and opposed by Ds, and vice versa. This has been irrespective of the qualifications of the candidates presented. Beyond the votes, the role of the Senate Judiciary Committee can also be questioned. During the hearings of Alito, Sotomayor, Kagan and Gorsuch, the nominees only spoke for an average of 33% of the time over the 4 days of hearings. The rest of the time was taken up with senators talking. Given that the aim of the nomination process is to determine the suitability of a candidate, its success can be questioned when the nominee is speaking for such a relatively short period of time. Members of the Senate Judiciary Committee from the Ps party tend to ask soft questions of the nominee and members from the opposition party, attempt through their questions, to attack or embarrass the nominee rather than to elicit relevant information.

Answer 39

The P also plays a role in politicising the process. Ps invariably try to pick someone with an ideology that aligns with their own. Ps may scrutinise potential nominees’ previous judgement on controversial cases, such as those regarding affirmative action, capital punishment or abortion. Most Ps pick politically, and it is no coincidence that appointees on the Court deliver opinions that are consistently liberal or conservative reflecting the politics of the P that nominated them. Given the opportunity to choose a member of the nation’s highest court and thereby have the chance to shape the Court’s thinking for the next 15-20 years or more, most Ps understandably take it. However, this is not always successful, Eisenhower referred to his appointment of Chief Justice Warren as ‘the biggest damned-fool mistake I ever made’ as he had been far more liberal than Eisenhower anticipated. Anthony Kennedy was a Reagan nominee, having had his previous two nominees for the seat defeated, it was important that Kennedy was approved. In his time in court, he proved to be more moderate and often voting with both liberal and conservative wings of the Court, in defiance of Reagan’s own conservativism.

Answer 40

The appointment of Sonia Sotomayor: ‘I would hope that a wise Latino 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.’ This quote from Sotomayor, given in a 2001 lecture, caused controversy in her appointment process in 2009. It also spoke to her belief that having greater representation on the SC would be of benefit.

Answer 41

Supreme Court packing plan: The power of the SC frustrated P Roosevelt in the 1930s. In attempting to deal with the economic depression that followed the Wall Street Crash, he introduced the New Deal between 1933 and 1936. The SC, however, struck down various aspects of his plan as unconstitutional. In 1937, he introduced the Judicial Procedures Reform Bill. The key aspect of this legislation was that it would allow the P to appoint an additional justice for each justice currently aged over 70. With six sitting justices over the age of 70, this would have allowed him to appoint six new justices. This was viewed as a way for him to ‘pack’ the Court with those favourable to his New Deal legislation. The bill did not pass, however; in yet another SC case regarding the New Deal, one justice switched support to the side that favoured the P, making the legislation unnecessary. After hundreds of days being held up, the legislation ultimately failed. The Washington Post had been highly critical of Roosevelt’s ‘court packing plan’, which it saw as damaging the independence of the Court. Justice Roberts’ switching sides in the West Coast Hotel v Parrish case became known as ‘the switch in time that saved nine’ – protecting the relative independence of the nine justices on the Court.

Answer 42

In terms of politicising the confirmation process - provided a P has party control of the Senate, he can just about get anyone he wants confirmed. This is not a recipe for effective checks and balances. Senators from the opposition party tend to look for opportunities to attack and embarrass the nominee. They are often more interested in scandal than in competence. In ‘Innocent Until Nominated: The Breakdown of the Presidential Appointments Process’ (2001), Calvin Mackenzie concluded that the confirmation process is characterised by ‘invasive scrutiny’ and ‘cruel and punishing publicity’ for the nominee, which discourages qualified people from being prepared to be nominated for high office and thereby ‘hinders the P’s ability to govern’. A former solicitor general, Theodore Olson claimed in 2007 that the Senate had abandoned its role of ‘advise and consent’ for a policy of ‘search and destroy’.

Answer 43

The role of the media and IGs also serves to politicise the process. The media circus that surrounds the nomination process has grown in recent years. The volume of protests against the nomination of Kavanaugh, and the extent of media coverage that they garnered, underlined just how political appointments have become. During the appointment of Gorsuch, donors to the Judicial Crisis Network gave $10 million to support his appointment, having donated $7 million to oppose the appointment of Garland a year earlier. Even the role of the ABA can be questioned in this manner. It has no constitutional standing, and its members are unaccountable, yet their rating of a candidate can have a huge effect on the chances of that candidate. Despite this, arguably the politicisation is defensible, given the unelected and unaccountable nature of the SC. The only mandate justices could claim to have, is that they were appointed by the representatives in two branches of government which they had been elected. This lends them legitimacy in their role, meaning that even the more controversial decisions that the Court has made have been enforced by the other branches of government.

Answer 44

John Roberts was sworn in as the 17th chief justice of the United States of America in 2005, he already had a history of advocating judicial restraint as a philosophy for judicial decision-making. In September 2021, he arguably exercised judicial restraint when calling for the Texas Heartbeat Act to be overturned as it failed to adhere to the precedent set by Roe v Wade.

Answer 45

Whole Woman's Health v Hellerstedt (2016) - Roberts voted to uphold Texas laws that placed new restrictions on abortion clinics in the state. Although the court overall voted 5-3 that this violated women's constitutional right to abortion because the restrictions significantly limited access to abortion facilities in Texas, Roberts did not agree. In this case, Roberts could argue that he was exercising judicial restraint by adhering to decisions made by the Texas Legislature.

Answer 46

National Institute of Family and Life Advocates v Becerra (2018) - Roberts voted to strike down a California state law that required religious pregnancy crisis centres to provide women with information about how to terminate their pregnancy. The majority opinion in the decision, written by Justice Clarence Thomas, argued that the California state law violated centre's 1st Amendment right to free speech, which secures freedom of thought and belief, by forcing them to display messages that went against their religious beliefs. It is not clear from this evidence whether Roberts exercised restraint or activism

Answer 47

A later case in 2020 appears to suggest that Roberts acts with judicial restraint in relation to abortion cases. In June Medical Services, LLC v Russo - Roberts struck down a Louisiana Law that would have limited abortions to one single in the state who had necessary privileges to send patients needing hospital treatment to a nearby hospital. Roberts cited the need to follow the precedent set in 2016 in Whole Woman's Health, even though in that case he voted to uphold the state law and did not necessarily agree with the decision. This was one of the few occasions when a justice nominated by a republican president voted to uphold abortion rights

Answer 48

In 2015, five justices in Obergefell v Hodges voted to recognise the right of same-sex marriage. Roberts accused them of enacting their own vision of marriage and engaging in judicial activism, arguing that there was no clause in the constitution that clearly protected the right to marriage equality Karnoski v Trump (2019) - Roberts voted to allow donald trump's restrictions on transgender individuals serving in the military to continue while their legality was challenged in the lower courts. Four other justices supported Roberts decision to defer to the executive branch, all of whom had been nominated by Republican presidents However, Roberts have also used judicial restraint to protect LGBT+ rights. In Bostock v Clayton Country (2020, Roberts voted that an employer who fires an individual merely for being gay or transgender violates Title VII of the civil rights act 1964.

Answer 49

Public policy is simply the policy created by federal government, whether by creating new laws or through executive actions. As the SC is interpreting the Constitution, which is sovereign, its rulings are effectively sovereign. This gives it considerable power and influence over the policy that government creates, either by upholding it, striking it down or, in some cases, choosing not to hear a case at all.

Answer 50

This gives SC considerable power and influence over the policy that government creates, either by upholding it, striking it down or, in some cases, choosing not to hear a case at all. In each of these possibilities, the outcome could be that a SC ruling (a) allows an existing policy to continue, (b) removes a policy, or in some cases even (c) creates new policy -therefore, it can decide cases affecting matters of public policy that are at the forefront of American political debate.

Answer 51

Citizens United v FEC (2010) Ruling - Some provisions of the Bipartisan Campaign Reform Act violate the 1st Amendment Impact - The ruling created a new policy allowing for the development of Super-PACs (previously not possible due to the McCain-Feingold Act) which could raise unlimited amounts for campaigning, by striking down part of a law from Congress (a law created by elected representatives). It was heavily criticised by Obama at the 2010 State of the Union address, but still enforced allowing unelected justices to have a substantial role in shaping policy surrounding elections

Answer 52

McCutcheon v FEC (2010) Ruling - Caps on individual spending violates the 1st Amendment Impact - The ruling lifted the ‘aggregate cap’ which limited the total amount an individual could spend in an E. It left intact a limit on how much can be contributed to an individual campaign but removed the limit on the number of campaigns contributed to (McCutcheon intended on donating to 12 R candidates).

Answer 53

NFIB v Sebelius (2011) Ruling - The individual mandate functions as a tax and therefore is within Congress’ power to levy Impact - NFIB challenged Obamacare as unconstitutional on the grounds that it restricted state power and broke the interstate commerce ruling. The ruling upheld Obamacare, allowing it to continue. The law was already in place by this point, however, so the Court merely upheld a law already in existence. The decision only narrowly passed, with the four liberal justices joined by the chief justice (upholding Congress’ power to enact most provisions of Obamacare)

Answer 54

King v Burwell (2015) Ruling - Subsidies for healthcare can be given to those enrolled in state healthcare exchanges or federal healthcare exchanges Impact - The argument in the case was whether subsidies were available for those in the federal healthcare exchange. If the Court had decided ‘no’, it would have reduced federal subsidies by $29 billion and made healthcare unaffordable for many. In ruling ‘yes’, the Court upheld the key principles of Obamacare – providing a degree of sovereignty to the law

Answer 55

Michigan v Environmental Protection Agency (EPA) (2015) Ruling - The EPA must consider the cost implications of enforcing the Clean Air Act, rather than simply the need to regulate Impact - This ruling by the SC limited the interpretation allowed by the executive branch when enforcing legislation. Rather than simply regulating for Clean Air, the EPA now had to consider whether the costs could be justified, undermining Obama’s environmental policy

Answer 56

Finally, the Court can have an impact on public policy in choosing not to hear a case. In doing so, if the case has been heard by a lower court, then the ruling of that court stands. In 2018, the SC refused to hear the case of Planned Parenthood of Arkansas v Jegley, which challenged Arkansas’ strict regulation of medically-induced abortion which made it very difficult to obtain the ‘abortion pill’ and would have left the state with one abortion provider. In refusing to hear the case, the SC allowed this law to come into force in Arkansas, thereby shaping public policy through its inaction

Answer 57

SC decisions concerning a woman’s right to choose an abortion have dominated the argument about rights and liberties for over 30 years: - Roe v Wade - Gonzales v Carhart - Whole Woman’s Health v Hellerstedt - Dobbs v Jackson:

Answer 58

Roe v Wade: In 1973 the Court announced in Roe v Wade that the Fourteenth Amendment right of liberty, ‘freedom of personal choice in matters of marriage and family life’ and that this right ‘necessarily includes the right of a woman to decide whether or not to terminate her pregnancy’. This decision was one of the most politically important decisions of the (20th. It came at a time when the issue of women’s rights was gaining importance and support in the US. It took on political significance as the ‘pro-choice’ lobby became closely associated with the DP, while the pro-life' lobby became closely associated with the RP.

Answer 59

Gonzales v Carhart: Another landmark decision on abortion rights was handed down in Gonzales v Carhart (2007). In a 5-4 decision, the Court upheld the Partial-Birth Abortion Ban Act of 2003. The decision was significant as for the first time in history a specific abortion procedure used for late-term abortions was banned, with the only exception being, if the life of the woman was threatened. Writing for the majority in upholding the legislation, Justice Kennedy announced that ‘the government may use its voice and its regulatory authority to show respect for the life within the woman’. For the minority, Justice Ruth Bader Ginsberg stated that the majority opinion of the Court in this case ‘cannot be understood as anything other than an effort to chip away at a right declared again and again in this court – and with increasing comprehension of its centrality to women’s lives.’

Answer 60

Whole Woman’s Health v Hellerstedt: This case concerned two parts of a Texas based law that imposed strict requirements on abortion providers in the state, placing substantial obstacles on women gaining access to abortion - because of the law, the number of abortion clinics in Texas had dropped from 41 to 20. The law was not upheld, and Obama tweeted: Pleased to see the Supreme Court reaffirm every woman has a constitutional right to make her own reproductive choices.

Answer 61

Dobbs v Jackson: In June 2022 the SC ruling in the case Dobbs v. Jackson Women’s Health Organisation overturned the longstanding constitutional right to abortion and eliminated federal standards on abortion access that had been established by earlier decisions in the cases, Roe v. Wade and Planned Parenthood v. Casey. Going forward, it will be up to each state to establish laws protecting or restricting abortion in the absence of a federal standard. State laws range from complete abortion bans with criminal penalties to abortion protections that include funding for clinics, and legal protections for clinicians. In some states, abortion provision will remain legal and available because the states have had policies in place prior to the Dobbs decision that protect access even in the absence of Roe. Another group of states do not have any explicit laws either upholding abortion rights or prohibiting abortion, and access to services is mixed in these states. Finally, since the SC, several states have already outlawed provision of abortion services, and more states are expected to act in the coming weeks. These 17 states had policies in place prior to the decision that would effectively outlaw abortions soon after a ruling to overturn Roe v. Wade.

Answer 62

United States v Windsor: The first significant decision on what has become known as marriage equality was the case of United States v Windsor (2013), in which the court declared (5-4) the Defence of Marriage Act (1996) unconstitutional as it denied federal benefits to married same-sex couples that were available to other married couples. But this decision opened the door for a much more wide-ranging and significant ruling two years late.

Answer 63

Obergefell v Hodges: the court ruled (5-4) that state bans to prohibit same-sex marriages were a violation of the Fourteenth Amendment, which forbids states from denying the equal protection of the laws to any person within their jurisdiction, The case was brought by James Obergefell , who had married John Arthur in Maryland in 2013, but their state of residence, Ohio would not recognise their marriage. This case illustrates the difference between strict and loose constructionists on the Court. The majority took the latter position – to them, the ‘life, liberty and property’ rights of the Fourteenth Amendment ‘extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs’. It is also a clear example of the power of judicial review being used to turn the court into a quasi-legislative body – in effect making rather than merely interpreting law

Answer 64

These decisions can be used as examples of the SC: . Guaranteeing and guarding the rights and liberties granted in the Constitution (e.g. rights of liberty and the equal protection of the laws – Fourteenth Amendment). . Interpreting what words written in 1868 (Fourteenth Amendment) mean in modern day America. . Becoming a political institution, in that it is making decisions on policy that are fought over in E campaigns (e.g. abortion and gay rights). . Giving the Court as a quasi-legislative function (declaring a 1996 law unconstitutional).

Answer 65

Appointed by a politician (the P) . Confirmed by politicians (the Senate) . Makes decisions on issues that feature in Es (e.g. abortion, gun control, marriage equality) and over which the two main parties disagree . 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 the legislature’

Answer 66

. Its members are judges, not politicians . The Court is independent – not subject to political pressure . Justices do not involve themselves in party politics, Es, campaigning, endorsing candidates . There is no such thing as a D justice or a R justice . Members make decisions based on legal and constitutional argument, not political ideology

Answer 67

In a genuine democracy, the people rule themselves through elected officials who make decisions on their behalf – deliberative democracy. Within such a democracy, the judiciary obviously plays an important role in deciding how the laws and the Constitution apply in specific cases. However, controversy arises if the judiciary overturns the actions of directly elected officials in either the legislature or the executive. The debate over what role the SC should have in government stems from the unelected and unaccountable nature of the Court. This has led to two definitions being created for how justices act: ‘activist’ and ‘restrained

Answer 68

Judicial activism sees the SC as an equal partner with the legislative and executive branches of government. Activist judges are not inclined to be deferential to the other branches of government. According to P Obama, ‘an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically’. Any justice on the Court could therefore be an activist. It does not matter whether they are considered to be conservative or liberal, if they are ruling in such a way that gives a judicial solution to a problem, rather than letting Congress or the P solve it, they are ‘activist’.

Answer 69

Obergefell v Hodges is a good example of liberal judicial activism. It is essentially a new policy under which same-sex marriage became legal nationally. This ruling ignored the laws of 13 states where same-sex marriage was not allowed, but also struck down the congressional law known as DOMA (Defence of Marriage Act) as unconstitutional. The Court therefore overruled both state – and federally elected officials. In creating this right for the LGBTQ community nationally, the Court embodied progressive liberal ideals of protecting rights.

Answer 70

Citizens United v FEC similarly shows activism from the conservative justices. It too overturned at least part of a congressional law, the McCain-Feingold reforms which limited the amount of money spent on election campaigns. In allowing money to be seen as a form of free speech, this fits in with more conservative ideals which embrace a reduction in government interference in individuals’ lives. Having earned the money, the individual should be free to spend it as they see fit – including election campaigns, It is also notably an ‘activist’ decision as it directly contradicts a SC case from just 7 years earlier which ruled the opposite

Answer 71

An ‘activist’ sees their role as leading the way in the reform of American society by shaping policy to promote desirable social ends – therefore, by implication justices are making political decisions. Whenever the SC made controversial and what some regarded as political decisions, accusations regarding judicial activism would reappear. There is also an added complication that the term ‘judicial activism’ is often used about any decision that people oppose/disagree. However, ironically the kind of people who use the word ‘activist’ are generally disagreeing on political grounds. Academics, politicians and judges continue to disagree about how activist the courts should be. Critics of an activist Court might say that the justices are ‘legislating from the bench’.

Answer 72

So, is judicial activism a problem? It is the job of the Court to limit the political branches of government if they step outside of their constitutional powers. This means that the judiciary will have to declare laws passed by elected officials unconstitutional as well as put a stop to unconstitutional actions taken by the P -this is what they are supposed to do. The concern is that the courts might appear to be leading the way in public policy making. However, judges know that if their decisions stray too far outside of public opinion, then they will be forced to moderate their decisions or lose their only true method of enforcement – the acceptance of their decisions as legitimate by the populace

Answer 73

This is the view that judges should, wherever possible be deferential to both elected institutions and legal precedent. Judicial restraint is when a justice sees their role on the SC in a far more limited fashion. They would believe that where possible they should allow the policy created by Congress and the P to stand. For this reason, some writers prefer the term ‘judicial deference’ to judicial restraint, as the opposite of judicial activism. They are also more likely to look to past Court decisions to guide their current decision-making. This is a principle known as stare decisis or ‘let the decision stand’ to defer to what has gone before. This is based on the view that a neutral and independent Court, interpreting the same Constitution, should reach the same decision. Therefore, past Court cases set precedents for current cases:

Answer 74

Whole Woman’s Health v Hellerstedt demonstrated a continuing defence of the 1973 decision of Roe v Wade, which initially established a woman’s right to an abortion. It ruled that the limit of two abortion clinics in Texas to be unconstitutional, as it placed restrictions on the delivery of abortion services. Cases on abortion have been heard since then, and while some have placed limitations on it, or allowed individual states to decide on those limitations, the unwillingness of the Court to overturn this decision remained – until June 2022.

Answer 75

Clossip v Gross builds on previous cases to allow the continued use of lethal injection as an execution method – even though this may be viewed as inhumane based on today’s standards. The case suggested that prisoners could only challenge the method of execution by providing an alternative method of execution. The Court argued it was the responsibility of the prisoner to demonstrate that the execution method caused severe pain, not the responsibility of the state.

Answer 76

Judicial activism occurs: . Judges are seen to lead the way in matters of public policy . Judges tend not to defer to the actions of elected officials . The courts frequently strike down Acts of Congress as well as state laws . The courts frequently declare actions of the executive branch unconstitutional . The courts are in effect ‘making’ rather than ‘interpreting’ the law

Answer 77

Judicial restraint occurs when: . Judges tend to defer to elected institutions and officials in matters of public policy . Judges are reluctant to strike down Acts of Congress or state laws . Judges rarely declare actions of the executive branch unconstitutional . The courts refrain from ‘legislating from the bench’ . The courts tend to rely on precedent from previous decisions

Answer 78

Criticisms of judicial activism: . The SC is unelected and is therefore unaccountable for the decisions that it makes . Allowing the SC to strike down Acts of Congress and actions of the executive branch, with only limited checks on its own power, breaches the separation of powers . Allowing the SC to strike down state laws ignores the constitutional principle of federalism and the differences that exist across the US . The Court can overrule its own decisions, even when the Constitution has not changed, suggesting that the Court is acting politically rather than neutrally . Judicial review interprets the Constitution, meaning there are few effective checks on the Court’s power as constitutional amendments are so difficult to pass

Answer 79

Criticisms of Judicial Restraint - If the SC defers to elected branches of government, this might allow laws and policies which directly contravene the Constitution to stand . Given the frequent E cycle, elected branches often shy away from dealing with controversial policy issues or focus only on the will of the majority. The SC is therefore the only branch that can deal with controversial issues or minority rights without fear of public reprisals . The codified Constitution would be outdated if the SC were not willing to interpret it with reference to modern issues . The power of judicial review, while not explicit in the Constitution, could be implied. The Court should therefore act to limit the government as the Founding Fathers intended

Answer 80

There is inevitably much debate as to how far the SC has become a heavily politicised branch of government, on a par with both the executive and the legislature – and how far it remains an independent judicial body. Interpretations and debates around the SC focus on: The political v the judicial nature of the SC The effectiveness of rights protection The ‘living constitution’ and originalism Checks on the powers of the SC

Answer 81

The Court’s power of judicial review enables it to interpret the Constitution: We have seen in rulings that a number of clauses of the Constitution have been interpreted by the Court. For example, in abortion cases, it was what the word ‘liberty’ in the Fourteenth Amendment – written in 1865 – means today. What does the Second Amendment right to ‘keep and bear arms’ mean in the (21st? In several decisions, the Court is in effect, amending the Constitution – not formally by changing the words, but interpretatively, by changing the meaning of those words. In effect, this is the main reason why it is unnecessary to keep passing formal amendments to the Constitution.

Answer 82

The Court’s power of judicial review turns it into a political institution: Because the SC is making decisions in policy areas that are politically contentious and about which the two major parties fundamentally disagree – abortion, gun control, affirmative action, the death penalty, school prayers etc., the Court is to some extent turned into a political institution. Generally, the Ds, favour abortion, gun control, affirmative action, but oppose the death penalty and school prayers and the Rs vice versa. Debate about these policies is at the centre of American Es, at both the national and state level. Any institution that makes decisions in these areas is invariably going to be seen as something of a political institution.

Answer 83

The Court’s power of judicial review gives it a quasi-legislative power: This is because many of the Court’s decisions have almost the same effect as if a piece of legislation had been passed. In the UK, policy matters are decided by Parliament. In the US, they are largely settled by the SC. The quasi-legislative power of the Court is seen particularly in decisions which are authored by loose constructionist judges – those who read things into the wording of the Constitution, who from the view of critics, ‘legislate from the bench

Answer 84

The Court’s power of judicial review enables it to protect civil rights and liberties in today’s America: Most of the fundamental rights and liberties that Americans enjoy are found in the Constitution. All three branches of federal government have a role to pay in protecting and guaranteeing these freedoms, but the Court’s power of judicial review does grant the SC an especially important role in protecting these rights and liberties. It also gives the Court the power to say exactly what they mean in today’s America and has allowed the Court to lead where both Congress and the P have been either unable or unwilling. However, others would question whether it has always fulfilled this role – for almost a century after the Civil War, the SC kept African-Americans in segregated schools and in recent years it has eroded the rights of women in relation to abortion. However, others would argue that the Court has failed to protect the rights of the unborn child. So, how one views the degree of effectiveness with which the Court has protected the rights and liberties of Americans, may depend on ideology.

Answer 85

The rights that are protected in the Constitution are known as 'constitutional rights'. These are by no means the only rights that a US citizen may have, as the federal or state government will have passed laws to give them additional rights, such as the driving age, drinking age and age of consent. However, the SC can only rule on those for which it can find a constitutional basis because the only role the Court has is to interpret the Constitution. Given the vague nature of the Constitution, the Court has been able to rule on a considerable range of rights over time, supporting abortion, same-sex marriage and gun rights etc.

Answer 86

The most notable protection of rights in the Constitution comes in the Bill of Rights. When the Constitution’s framers wanted to better protect the fundamental rights and liberties of American citizens, they added the Bill of Rights - this is the first ten amendments to the Constitution, ratified all together in 1791. Subsequent amendments have added more rights to this. What do these words, written over 200 years ago, mean today? - it is the SC that answers that question. SC interpretation of all those amendments has served to protect, extend or, in some cases challenge, individual rights.

Answer 87

Selected rights protected by the Bill of Rights 1 No established religion: freedoms of religion, speech and assembly; right to petition 2 ‘The right of the people to keep and bear Arms’ 5 No deprivation ‘of life, liberty, or property, without due process of law’ 6 ‘The right to a speedy and public trial, by an impartial jury’ 8 No excessive fines or ‘cruel and unusual punishments’ 9 The enumeration of rights ‘shall not be construed to deny… others retained by the people’ 10 Powers not delegated to the federal government are reserved to the states or the people

Answer 88

The role of an independent and neutral judiciary in protecting rights is crucial to any liberal democracy. Free of accountability to the public, the judiciary can rule to ensure the protection of rights for all. However, the extent to which it is effective at doing this is the subject of debate. In a number of cases, while the rights of one group may be protected, this may be to the detriment of another. In the case of Obergefell v Hodges, the rights of the LGBTQ community were protected while the religious rights of people like Kim Davis, a clerk in Kentucky, were arguably infringed. Davis refused to issue marriage licences to same-sex couples, saying it violated her religious beliefs. She was briefly jailed for this by a district court in Kentucky, which demonstrates the impact of rulings from the SC. Conversely, in Burwell v Hobby Lobby, the religious rights of employers were placed above the rights of women.

Answer 89

There is also a debate about how much power the SC actually has to protect rights. The Court hears only about 1% of the cases put to it in any year. This means the cases of the vast majority of people who may feel their rights have been infringed will never be heard by the SC. In June 2018, the Court declined to hear an appeal from a florist who had refused to make an arrangement for a same-sex couple, referring it back to the lower court. In doing so, it shied away from involvement in this controversial issue, arguably leaving the rights of some people unprotected.

Answer 90

Additionally, the Court does not have power to enforce its rulings. Instead, it relies on the power of the P and Congress, or the states, to enforce its decisions. Controversial decisions that a P has not liked have still been enforced, such as Citizens United v FEC. However, in other cases the rulings of the Court appear to have been circumvented or ignored. In the four cases regarding Guantanamo Bay between 2004 and 2008, the Court always found in favour of the detainees. Yet the fact that these cases kept coming back to the SC highlights the weakness of its ruling. In this case, Congress even passed a new law, the Military Commissions Act, to try and work around a ruling. This Act then also had to be struck down

Answer 91

Ultimately all judicial action from the SC is bound by the Constitution. It may find it difficult to protect rights as its rulings have to be rooted in the wording of this document. In the case of Synder v Phelps, the actions of the Westboro’ Baptist Church may have appeared insensitive to the rights and feelings of the grieving family, but the Constitution clearly protects the right of free speech. In this case, it becomes difficult for the Court as it can only rule by interpreting the Constitution. Nonetheless, the majority of the cases heard by the SC are those of significant constitutional impact, allowing the Court to use its power broadly to try and protect rights. It is therefore unlikely that a ruling of the Court would be overtly ignored or unenforced, given the weight of importance attached to the Constitution. That it is ruling based on the document which forms the foundation of all rights in the US gives it considerable influence in any political debate. However, the vagueness of the Constitution also allows a good deal of breadth in the Court’s interpretation, allowing it to use the Constitution to protect rights even when they are not explicitly identified – both the right to an abortion and the right to same-sex marriage have been protected in this way. The effectiveness of the Court in this area can be challenged, but there are far more which suggest it has been largely effective

Answer 92

In protecting rights, or indeed deciding any case before it, the SC may only use the Constitution to judge against. In doing so, how it treats the Constitution and how it believes it should be interpreted is crucial to the decisions it will make: * Justices who believe that the Constitution is a living, evolutionary document believe in interpreting the words written within it more widely in the context of modern society and expectations. * Justices who believe in ‘originalism’ see the meaning of the Constitution as fixed at the time of its writing, at least for judicial interpretation. They believe that it does not evolve and interpreting it as such undermines the principles codified within by the Founding Fathers. It is important to note that both those who believe in the ‘Living Constitution’ and those who believe in ‘originalism’ often believe that the Constitution should evolve in some way. However, for ‘living constitutionalists’, this can be done by the judiciary, whereas for ‘originalists’ this should be done through politically accountable elected branches. It is also possible to see a justice appearing to favour broader interpretation in one case, but a stricter interpretation in another.

Answer 93

As a ‘Living Constitution’: . The Constitution will quickly become out of date if it is not interpreted in the light of modern developments, for example the changing beliefs on slavery or LGBTQ rights. . Elected and accountable branches often favour the will of the majority and therefore interpretation of the Constitution can ensure minority rights are also protected. . The Founding Fathers could not have envisaged the world which exists today and some of the words in the Constitution are meaningless without interpretation. For example, the Founding Fathers were not writing about semi-automatic rifles in the 2nd Amendment. . The amendment process is too difficult to allow the development of the Constitution through elected branches of government. . The principles of the Constitution can be upheld despite the wording of the document.

Answer 94

As a ‘originalist’ manner . Interpreting the Constitution makes the SC an inherently political institution, undermining its independence and ability to check the other branches of government. . Changes required can be left to the elected and therefore accountable branches rather than risking the misinterpretation of the original principles of the Constitution. . People are accountable for their actions according to the law. If this law is constantly evolving and changing, it is not possible for them to know what the law is until after a judge has decided. The amendment process exists and has been used successfully; this is the methods through which amendments should come about. . The principles of the Constitution are not relevant. The Founding Fathers wrote the Constitution, using words and text to demonstrate meaning, and it is this meaning which should be adhered to.

Answer 95

An originalist interpretation: In the decision of District of Columbia v Heller 2008, Justice Antonio Scalia wrote: ‘The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In interpreting this text, we are guided by the principle that “the Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.’

Answer 96

The SC, like the other two branches of the federal government is subject to various checks and balances: The relationship of the SC with the other branches of federal government is governed by fewer checks and balances than the relationship between the P and Congress. The SCs only power is judicial review and while this allows it to strike down Acts of Congress or actions of the P, it hears only around 80 cases a year. The Court has no enforcement powers: it is dependent on the other branches of government and/or the rule of law for implementation of and obedience to Court decisions. The Court is checked by public opinion – it loses some of its legitimacy if its decisions are regarded as wrong by a majority of the public. The Ps power to appoint justices is dependent on a vacancy occurring, something he cannot control however, he has the power to nominate justices. Congress could in theory alter the number of justices or pass a constitutional amendment to overturn a Court decision, but both seem unlikely – the last time the number of justices changed was 1869 and the only time a constitutional amendment has been used in this way was with the passage of the 16th Amendment in 1913. The formal relationship between these branches, therefore, is far more limited than between the P and Congress.

Answer 97

This relationship is not without tension. The power of judicial review can create questions over the legitimacy of Court decisions, given the Court’s unelected nature. P Obama expressed anger at the Court numerous times during his presidency, notably after the rulings regarding campaign finance and his DAPA executive order. The same is true of Congress. In 2018 the SC struck down aspects of the Voting Rights Act 1965, stating that ‘our country has changed in the past 50 years’. However, while it left open the possibility of Congress passing legislation to recognise the changing political circumstances, the chance of Congress being able to do so was very limited in this partisan era. Senator Schumer recognised this difficulty saying: ‘make no mistake about it, this is a back doorway to gut the Voting Rights Act.’

Answer 98

This tense relationship has followed decisions which have not given the outcome either the P or Congress desired. In contrast, the Court has supported and even extended the powers of these branches of government. In historic cases such as Gibbons v Ogden (1824), the Court redefined Congress’ power according to the commerce clause and reinforced the extent of Congress’ power, saying: ‘this power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution.’ More recently, in upholding P Trump’s ‘travel ban’, the SC decision noted that ‘the proclamation is squarely within the scope of presidential authority’.

Answer 99

. 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 . It is a largely unaccountable body . It has abused its power to bring about significant policy change (e.g. abortion, same-sex marriage) . Yes, when justices believe in a living constitution

Answer 100

. It is checked by Congress, which may initiate constitutional amendments effectively overriding Court decisions . Congress has the power of impeachment . It has no initiative power: must wait for cases to come before it . It is dependent upon the rule of law and other branches of government to enforce its decisions . Public opinion is a restraining force on the Court’s power . It is checked by the words of the Constitution: where it is precise and not open to interpretation by the Court

Answer 101

The Supreme Court and Guantanamo Bay: Guantanamo Bay: Guantanamo Bay detention camp was established by P George W. Bush in 2002. It is located on the coast of Cuba. Suspected terrorists were held here in the wake of the 9/11 terrorist attacks. However, the rights of its detainees have caused controversy. Many of them are them are not American and they are not held on US soil. This has meant that indefinite detention, military trials and even torture have been a feature of this camp. The situation has led to considerable tension between the executive branch (looking to protect the interests of the nation) and the SC (looking to uphold the Constitution). The key cases heard by the SC over the issue of detention at Guantanamo Bay. Each time, the Court ruled against the P and for the detainees. However, each time either Congress or the P tried to find a way around these rulings. This highlights the tension between the branches of government and also the limits on the power of the Court.

Answer 102

Cases heard by the Supreme Court over the issue of detention at Guantanamo Bay - Rasul v Bush (2004) Ruling - The SC struck down some important parts of the Bush administrations legal policy regarding its ‘war on terror’ – that the detainees were outside the jurisdiction of the federal courts. Foreign detainees in Guantanamo could petition the federal government for habeas corpus, reviewing/challenging the legality of their detention Impact - The British men involved in this case were transported to the UK before the decision was handed down

Answer 103

Cases heard by the Supreme Court over the issue of detention at Guantanamo Bay Hamdi v Rumsfeld (2004) Ruling - Declared the military commissions set up by Bush to try detainees unconstitutional. Detainees held in Guantanamo Bay have a right to due process. Impact - Hamdi was released without charge following the ruling. He was then deported to Saudi Arabia

Answer 104

Cases heard by the Supreme Court over the issue of detention at Guantanamo Bay Boumediene v Bush (2008) Ruling - Detainees in Guantanamo Bay have a right to try their cases in the US courts, and the Military Commissions Act 2006 was unconstitutional Impact - This not only struck down a congressional Act, but also asserted the Court’s right to rule over presidential actions in this policy area

Answer 105

A similar debate over the SC is whether it is imperial or not. While the debate over the Court being political or judicial is about its role, this debate is about its power – these two debates should not be confused or conflated. For example, that the P and Congress have a role in appointing justices has no bearing on the power of the Court but is hugely important for discussions on the political nature of the Court. For the SC to be considered ‘imperial’, like the ‘imperial presidency’, this would mean that the Court is subject to few effective limits and has broadly unchecked power. Unlike the presidency, however, the nature of this debate is far less dependent on polls and national circumstances.

Answer 106

The court is imperial - . The Court is unelected, able to make decisions with huge impact on US government and citizens, and yet is almost entirely unaccountable. . While justices can in theory be impeached, this process has never been used to remove a justice and only ever been used at all once, in 1805. This further advances the unaccountable nature of the Court. . The Court’s power of judicial review often amounts to the final say on any issue as it so difficult to overturn a decision. The use of constitutional amendments to achieve this has only occurred once, in 1913. . These decisions can also overturn the laws and actions from branches which are not only accountable, but have a mandate from the people to carry out these actions. . These decisions have gone far beyond the original text of the Constitution and created entirely new rights, with the Court having broad powers to interpret the Constitution. . Despite only being able to hear a limited number of cases each year, the fact that 8,000 cases are annually brought to the Court allows it a vast choice on what it wishes to rule upon.

Answer 107

the court is not imperial - . The Court has no way to enforce its own rulings and is entirely dependent on other branches of federal government or states to enforce its rulings or, in some cases, effectively ignore its rulings. . The Court cannot choose cases to investigate which have not been brought before it. Even if there are Acts or actions which it considers unconstitutional, it must await a case before being able to rule on it. . The Court’s rulings can be overturned if necessary and the 16th Amendment shows that it possible to achieve this. . The Court has often shied away from hearing cases in which public opinion is closely divided, such as gun control cases. . The Constitution provides the single biggest limit on the SC. Regardless of the justices’ personal or political opinions, cases and decisions must be rooted in the Constitution. Even with the power to interpret this, they can only interpret what is there. . Justices are subject to the threat of removal as they only hold their offices during times of ‘good behaviour’. This should prevent justices from acting in a reckless manner.

Answer 108

The role of the SC should be simply judicial – acting neutrally and with guaranteed independence. It should act merely as interpreter of the law with respect to the Constitution. However, the Court’s decisions invariably have political actions. Furthermore, its decisions seem to be politically rather than judicially motivated. So, is the SC a political or a judicial body?

Answer 109

Judicial body - . The SC can only take cases with a constitutional basis and make decisions on the wording of the Constitution. The justices’ personal political opinions are therefore irrelevant to the decision-making process. . Members of the Court have legal rather than political expertise. Almost all of them have come from circuit courts and even Elena Kagan’s political experience was within the Justice Department. . The Court lacks any power to enforce the decisions it makes. Only Congress and the P, the directly elected branches of government, can enforce the decisions. The Court decisions must therefore be seen to be legitimate for them to be enforced. . Usually upwards of two-thirds of cases are decided by a majority of more than five justices. As the Court is broadly divided into liberals and conservatives, this suggests the justices must be basing their decisions on something other than their personal opinion. There have been numerous cases where, even in controversial and landmark decisions, a justice has seemingly voted against their known personal ideology in a case decision. . The Court adheres to legal principles such as stare decisis which helps to lend legitimacy to the decisions it makes.

Answer 110

Supreme court is a political body - . The impact of many rulings is inherently political, striking down actions or acts of the elected branches of government or even, in the rare case of Bush v Gore (2000), effectively deciding who will be the next P. . The appointment process to the SC is inherently political and seems to be getting more so. Since 2006, appointment votes have been more obviously divided on party lines, and the nominations of Garland and Kavanaugh were particularly contentious. . Justices can be identified, and subsequently labelled as liberal or conservative, depending on which side of major decisions they align with. That it is possible to do this suggests the actions of justices are politically rather than judicially motivated, given that they are all interpreting the same evidence and the same Constitution yet reaching different conclusions. . The court accepts amicus curia briefs – these are documents written to the Court from IGs trying to influence the outcome. That groups do this suggests they believe it has some impact, but it also politicises the role of the Court. . The Court appears to shy away from hearing some of the more controversial cases, such as lack of gun control cases or unwillingness to hear cases about gerrymandering, suggesting its recognition of the importance of public opinion

Answer 111

RACE AND RIGHTS IN CONTEMPORARY US POLITICS Civil liberties in the US have been mainly advanced and protected by the Bill of Rights – the liberties that guarantee the protection of persons, expression and property from arbitrary interference by government. However, the history of race rights in the US has often been controversial. Far from the three-fifths compromise in the Constitution, to the Civil War, to modern-day affirmative action policies - minority groups in the US have often found they have not had the freedoms afforded to their white counterparts. Calls for racial equality and civil rights have led to substantial positive policy changes over time, through legal, legislative and public action designed to protect racial minorities against discriminatory treatment by government or individuals. The two biggest minority groups are African Americans and Hispanics. In 1970 minorities made up 16.5% of the US population – in 2020: 39.9% and by 2042 it is projected to be 50.1%. The timeline below shows major landmarks in the advance of rights for African Americans. It is difficult to trace a similar timeline for the Hispanic population. The fight for African Americans’ rights revolved around slavery and its abolition. Hispanics have no such rallying cause and therefore the fight for their rights have been characterised by debates about immigration and citizenship.

Answer 112

ADVANTAGES - Such programmes lead to greater levels of diversity, which would not have been achieved by just leaving things as they were. . AA is justified on the basis that it rights previous wrongs. The previously disadvantaged are now advantaged. . It opens up areas of educations and employment which minorities otherwise would not have considered. . In education, a diverse student body creates not only a better learning environment but also one in which ethnic and racial tolerance is promoted. . It is the most meaningful and effective means thus far devised by government for delivering the promise of equal opportunity. . It works. For example, between 1960 and 1995, the percentage of black people aged 25-29 who graduated from university rose from 5% to 15%. As P Clinton remarked in 1995, ‘AA has been good for America

Answer 113

. Advantage or preference for one group leads inevitably to disadvantage for another group. This is the issue of reverse discrimination which the SC was first asked to address in the Bakke case in 1978. As California State Assemblyman Bernie Richter puts it: ‘When you deny someone who has earned it and give it to someone else who has not earned it…you create anger and resentment.’ . It can lead to minorities to be admitted to courses or given jobs with which they are ill-equipped to cope. In a study of American law schools in the November 2004 Stanford Law Review, Richard Sander found that putting black students into classes with white students who had higher SAT scores and college grades resulted in ‘close to half of black students ending up in the bottom tenth of their classes.’ . AA can be condescending to minorities by implying that they need a helping hand in order to succeed, thereby demeaning their achievement. . It perpetuates a society based on colour and race, thereby encouraging prejudice. . AA is no more than a quota system under another name. . It focuses on groups rather than individuals. As David McKay (2005) succinctly explains: ‘AA is inherently problematic because it involves a clash between the liberal notion of what the individual is worth and the collective interests of a group or race.’

Answer 114

Writing in ‘The Atlantic’ two days after the PE in 2008, Richard Kahlenberg wrote: ‘This E was a stunning triumph for the notion of colour-blindness: don’t discriminate against people of colour – or in favour of them. The E of America’s first black P was a moving and long overdue affirmation of the civil rights movement’s enduring struggle for equal treatment. The candidate never asked Americans to vote for him because he was black’. Back in 1978, Justice Harry Blackmun suggested that the legitimacy of AA was to be measured by how fast they moved society towards a time when they would no longer be needed and a society in which race no longer mattered. Some politicians and philosophers think that AA is bound to fail by this measure because a programme that is based on race is unlikely to move society to a point where it no longer counts.

Answer 115

There seem to be four options: abolish them, gradually phase them out, reform them keep them as they are. These various options tend to equate with the political ideology of those who support them. Conservatives/RP tend to favour abolishing them because: they believe in ‘equality of opportunity’ rather than ‘equality of results’ they would suggest that an unequal society has the benefit of providing incentives to better oneself. Offering ‘quotas’ is in their view, a disincentive they would highlight that certain minorities in the US, such as immigrants from Southeast Asia, have succeeded without the benefit of AA programmes they would argue that today’s issues with inequality are not about past discrimination, they are rooted in lifestyle choices related to drugs, alcohol and parenting they argue that AA is based on a false premise: addressing discrimination by discrimination. Moderates would agree with some of the above but would be impressed by all that AA has achieved. They would agree with Justice Sandra Day O’Connor in the Grutter decision (2003), that if AA has achieved all that its supporters claim for it, there must come a time when it becomes unnecessary. Clinton advocated that AA programmes were in need of reform: ‘mend it, don’t end it’. Liberals, found mostly in the DP, would argue that it needs to continue as it has much left still to do and that a vision of an equal society is still a vision of the future.

Answer 116

Regardless of the minority group, the methods used to advance rights are similar and have not changed a great deal over time. The civil rights of racial minorities positive acts of government designed to protect persons against arbitrary or discriminatory treatment by government or individuals. Mass protesting and bringing SC cases are used to achieve change, just as they were decades ago. That these methods are still needed today gives an indication that inequality is still part of everyday life for many Americans. - Legal methods - Mass demonstrations and direct actions - Media - Affirmative action

Answer 117

Legal Action: Groups trying to effect change can and have used the US legal system in a number of ways: * Groups themselves can bring cases to be heard before the SC. The Coalition to Defend Affirmative Action, Integration and Immigrant Rights, and Fight for Equality By Any Means Necessary (or BAMN ‘by any means necessary’ for short) bought a case in 2014 challenging a ban on affirmative action in Michigan. * Individuals can also bring such cases, but the rulings can have a wide-ranging impact. Cases on affirmative action in education and university admissions have been heard and reheard by the SC from Brown v Topeka Board of Education (1954), to Fisher v University of Texas in both 2013 and 2016. * Change can also be attempted through the use of amicus curiae briefs. Minority groups can submit their opinions to the SC for consideration in their cases. More than 60 amicus briefs were filed in the case of Trump v Hawaii (2018) regarding the ‘travel ban’, including briefs from large groups such as the National Association for the Advancement of Colored People (NAACP) and individuals such as Khizr Khan, the father of a Muslim US army captain who had been killed in action in Iraq.

Answer 118

Mass demonstrations and direct action: Mass demonstrations are organised to try to achieve change by showing politicians the weight of public opinion. In a representative democracy, where elected officials are dependent on the public vote for their job, such protests encourage politicians to listen in order to gain votes. Even smaller-scale direct action can achieve this by raising the media profile of a movement with a view to winning public sympathy. The March on Washington for Jobs and Freedom in 1963 was famed not only for being one of the largest ever protests in the capital, but also famously is the demonstration at which Martin Luther King Jr. gave his ‘I Have A Dream’ speech: ‘1963 is not an end, but a beginning. Those who hope that the Negro needed to blow off steam and will be content will have a rude awakening if the nation returns to business as usual. There will be neither rest not tranquility in America until the Negro is granted his citizenship rights.’ This march was followed by King and others meeting with the P, and ultimately helped ensure the Civil Rights Act 1964 and Voting Rights Act 1965 were passed

Answer 119

This method is still used today, often for very similar causes: * The Black Lives Matter movement held a number of protests after the deaths of young African American men at the hands of police. * The Hispanic community led protests against Trump’s executive order separating families. * The 2018 Women’s March drew more then 500,000 people to Washington to protest against P Trump and to fight for women’s rights.

Answer 120

Methods such as these are often characterised as ‘mass movements.’ Direct action involving fewer people has also ben successful in raising the profile of issues, from Rosa Park’s Montgomery bus protest to the interruptions in the Senate committee room during the appointment process of Brett Kavanaugh. Equally, groups fighting for equality may use more formal methods such as the annual conferences of IGs. The National Council Of La Raza (now UnidosUS) dubbed Obama the ‘deporter-in-chief’ at its annual conference in 2014, having been disappointed by the more than 2 million people his administration had deported since taking office.

Answer 121

Media: In the modern age, the development of technology has allowed for pressure to be placed on those in power through more indirect methods. The use of Twitter allowed for the growth of notable movements, with #BlackLivesMatter beginning on here, and the #MeToo campaign gaining considerable attention using this medium. It has also aided in the organisation of mass protests such as the Women’s March in 2017 and provided after a free platform to show the turnout and aims of these movements.

Answer 122

Affirmative Action: The (20th saw an ongoing debate between what has been called ‘equality of opportunity’ on the one hand and ‘equality of results’ on the other. Many civil rights advocates came to believe that minority rights and representation could not be guaranteed solely by ‘giving’ rights to people: equality of opportunity. This would merely give the ‘theory’ of rights and equality – if people wanted to see the ‘practice’ of rights and equality, they had to work towards ‘equality of results’. The only way to overcome racial disadvantage was by introducing racial advantage through such policies such as Affirmative action (AA). Given how disadvantaged African-Americans had been during the 100 years after the Civil War, many D politicians began to recognise that government needed to discriminate positively in favour of African-Americans in such areas as education, employment and housing – in what became known as AA programmes

Answer 123

Reflecting the ‘equality of results’ v ‘equality of opportunity’ debate, many civil rights organisations and D politicians were convinced that the burdens of racism could only be overcome by taking race into account in designing suitable remedies. Groups which had been disadvantaged were now to be advantaged – rights in themselves would not deliver changes to society; benefits had to be added. AA first appears as a phrase in P Kennedy’s Executive Order 10925, which required government contractors to ‘take AA to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin’. Therefore, there is no singular ‘AA’ policy, rather it refers to any policies where traditionally disadvantaged groups are provided with additional advantages to try and create a more equal society. In education this could be through the use of university admissions race quotas or the use of ‘busing’ which transported children to schools further from their home to try and ensure schools were not racially segregated. AA was meant to lead to diversity and multiculturalism: the view that the school, workplace, neighbourhood etc. should reflect the racial diversity of the nation – this is ‘equality of results’.

Answer 124

However, what is AA to some is merely reverse discrimination to others. Many R politicians believed AA was both patronizing to minorities and unfair to majorities, believing that the Constitution and both federal and state laws should be ‘colour blind’. These views support the conservative support for ‘equality of opportunity’, not ‘equality of results’. Therefore, in the (21st AA has increasingly been the subject of scrutiny. Chief Justice John Roberts commented in 2007 that the ‘way to stop discrimination on the basis of race is to stop discriminating on the basis of race’, suggesting that AA could itself be considered a discriminatory policy (promoting racial balancing) that violates the equal protection clause of the fourteenth amendment. It was largely up to the SC to umpire between these two views of civil rights in the US.

Answer 125

Equality of opportunity - . Focuses on giving the same rights and opportunities to all . Focuses on the theory of rights and of equality rather than its outworking . Regards AA programmes as ‘reverse discrimination’ . Believes all rights should be ‘colour-blind’

Answer 126

Equality of results - . Focuses on outcomes . Focuses on giving advantages to previously disadvantaged groups in order to bring about equality in reality, not just in theory . Advocates such schemes as AA and quotas

Answer 127

Gratz v Bollinger (2003) Ruling - The University of Michigan’s AA admissions programme was unconstitutional as it was too mechanistic (automatically awarded 20 of the 150 points required) Impact - Universities were permitted to continue to use race as a ‘plus factor’ in evaluating applicants, provided they took sufficient care to evaluate each applicant’s ability individually

Answer 128

Grutter V Bollinger (2003) Ruling - The admissions programme for the University’s Law School’s was constitutional as it used a more individualised approach in considering the racial profile of its applicants Impact - Universities were permitted to continue to use race as a ‘plus factor’ in evaluating applicants, provided they took sufficient care to evaluate each applicant’s ability individually. The Court (Justice Sandra day O’Connor) suggested that AA should not be a permanent fixture of US society – and should be phased out within the next 25 years

Answer 129

Schuette v Coalition to Defend AA (2014) Ruling - The ban on AA in the Michigan state constitution was not unconstitutional Impact - The immediate impact was limited, reversing a lower court decision but upholding the Michigan state constitution’s ban. It was, however, one of an increasing number of cases challenging the legitimacy of AA as a policy

Answer 130

Fisher v University of Texas (2013 and 2016) Ruling - Fisher 1 (2013): The Court ruled that while race could be a consideration in university admissions (University of Texas), it must be subjected to strict scrutiny as it involved possible discrimination. Fisher 11 (2016): The Court upheld the appeal court ruling and found that the University of Texas admissions policy met the requirements of ‘strict scrutiny’ Impact - The ruling of Fisher 1, contrary to some fears, did not strike down AA, but rather adhered to the principle of state decisis, upholding the 2003 decision in Grutter v Bollinger which allowed the use of race as one factor in university admissions. However, Scalia’s dissenting opinion said he would have overruled this decision if asked. Fisher 11 upheld the use of AA for university admissions. Kennedy, as the author of the majority decision, cited an amicus curiae brief in his decision, showing the importance these can have. P Obama led the praise for the Court’s ruling, saying it ‘upheld the basic notion that (racial) diversity is an important value in our society and this country should provide a high-quality education for all young people, regardless of their background’. In relation to Fisher v University of Texas (2013 and 2016), the irony is that Ms Fisher (a young white female student who applied to the university but was rejected, brought the case arguing that she had been a victim of racial discrimination – because minority race students with less impressive qualifications than hers had been accepted), would agree with Obama.

Answer 131

YES - It has helped reverse years of discrimination and righted numerous wrongs. . It has given the black American community hope – and education, jobs and housing. . There is increasing evidence of minority students at top universities. . It has helped to promote community diversity. . It has helped promote equality of opportunity and equality of outcome. No - It has divided the black community rather than empower it. . Like the racism it sought to end, it is itself a programme based on race. . It has led to some resentments and inequalities for the majority community. . It lowers aspirations by offering racial preferences. . It puts minority students into academic places where they then struggle to complete and succeed.

Answer 132

There have been significant strides in widening voting rights through: Key legislation e.g. Voting Rights Act 1965 and the re-authorisation of key parts of this Act in 2006 Voter registration drives among black and Hispanic communities Voter turnout drives among the same groups But concerns still exist: Introduction by some states of photo ID requirement at polling stations Removal of voting rights following criminal convictions Some recent SC rulings in the area of voting rights are surprising, seemingly making it more difficult for people to exercise their voting rights: Shelby County v Holder (2014) Husted v Randolph Institute (2018)

Answer 133

Case: Shelby County v Holder (2014) Ruling: The ruling struck down aspects of the Voting Rights Act 1965, which required areas with historic records of making it difficult for minorities to vote to gain federal clearance before changing their electoral practices. Impact: Some states used this ruling to make changes to their voting regulations. North Carolina made it a requirement that photo ID was presented with voting; low-income and minority groups disproportionately lack this ID – making it impossible for them to vote.

Answer 134

Case: Husted v Randolph Institute (2018) Ruling: The ruling allowed Ohio to continue its practice of ‘voter caging’. That is if someone has not voted for while, they are sent a notice through the mail. If this is returned undelivered and the voter does not vote in the next two federal Es, they are struck from the voting register. Impact: This had a huge effect in the 2018 midterms, with people turning up to vote only to find thay had been struck down from the voting register. It would also hit minority voters far more than white voters according to a brief by the NAACP.

Answer 135

Minority representation has increased steadily in recent decades: In Congress: black members up from 16 in 1979-80 to 49 in 2017-18; Hispanic/Latino members up from 6 in 1979-80 to 38 in 2017-18 In presidential candidates: Barack Obama winning the D nomination and the presidency (2008); three ethnic minority candidates ran for R nomination in 2016: Ben Carson, Bobby Jindal and Marco Rubio In the Ps cabinet: Obama’s initial cabinet (2009) was the most racially diverse to date – out of 15 heads of executive departments, 7 were from ethnic minorities; George W Bush (2001-09) was served throughout by people of colour as Secretary of State: Colin Powell followed by Condoleezza Rice.

Answer 136

The immigration system in the US has been the subject of numerous PEs. P Obama failed to achieve immigration reform through Congress, passing neither the DREAM Act nor the ‘Gang of Eight’s’ bipartisan Border Security, Economic Opportunity and Immigration Modernisation Act 2013, which would have reformed the immigration system and given undocumented immigrants a pathway to citizenship He therefore turned to the use of executive orders to achieve at least some reform: Deferred Action for Childhood Arrivals (DACA) in 2012 allowed illegal immigrants who met certain conditions to remain in the US free from the fear of deportation. Obama extended this in 2014, expanding the conditions of DACA and introducing the Deferred Action for Parents of Americans (DAPA). Together these offered protection from deportation for 11 million undocumented immigrants – it did not however, offer them a path to citizenship. However, with key aspects of this struck down in 2016, immigration remains a highly contentious issue – especially since the election of Trump in 2018.

Answer 137

With Trump’s promise to ‘build a wall’ and increase the funding for border security, his approach to immigration was criticised. In January 2018, Trump’s intention to end the DACA programme was a contributory factor in the short-term partial shutdown of parts of the federal government. His 2018 State of the Union address, however, like that of may of his predecessors, talked extensively about immigration reform, planning to give undocumented immigrants a pathway to citizenship alongside his more conservative policies restricting family-based immigration

Answer 138

Case: Texas v US (2016): Ruling: The Court split 4-4 which meant the ruling of the lower court stood, which struck down Obama’s DAPA executive order. Impact: P Obama had little success achieving immigration reform through Congress during his time in office, and this ruling struck down what he had achieved.

Answer 139

Case: Arizona v US (2012): Ruling: The Court struck down key aspects of Arizona’s SB 1070 law, striking down the provision that immigrants must carry registration documents because it conflicted with a federal law. Impact: The law was notable for the clash of state power versus federal power, and in which Arizona was on the losing side. It set the precedent that opportunities for state action over the issue of immigration were limited.

Answer 140

Case: Trump v Hawaii (2018): Ruling: The Court ruled that Trump’s so-called ‘travel ban’ was not unconstitutional and fell within the remit of executive power. Impact: Immigration activists had hoped this ruling might curb presidential power in this area and believed it violated the 1st Amendment. The liberal justices on the Court argued this was religiously motivated.

Answer 141

1st Amendment - free speech Synder v Phelps (2011) Ruling - Free speech in public, even if considered offensive or causing emotional distress, is not limited Impact - This 8-1 ruling protected free speech, even though the ‘free speech of the Westboro’ Baptist Church was highly controversial. Alito, in dissent, disagreed with the ruling saying, ‘Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case’. That the only dissent was from a C justice demonstrates that justices consider the constitutionality of a case rather than just personal ideology

Answer 142

1st Amendment - Religion Burwell v Hobby Lobby Stores (2014) Ruling - The government/Obamacare cannot require employers to provide insurance cover for birth control if it conflicts with their religious beliefs Impact - All three female justices dissented in this ruling, claiming that it limited women’s rights. While the ruling only applied to a specific type of company called ‘closely held’, this type of business makes up more than 80% of American businesses

Answer 143

2nd Amendment - Gun control D.C v Heller (2008) - Ruling: There is a right to individual gun ownership without a connection to a militia, and for use in the home for self-defence Impact - This was one of the first major gun control cases taken up by the Court in recent years, striking down a 1975 Act by the District of Columbia. However, the Court also ruled that the 2nd Amendment, or of this ruling, was not a ‘right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose’ Chicago v McDonald (2010) - Ruling: The right to keep arms for self-defence is applicable to the states, as well as federal government law Impact - The ruling clarified the D.C v Heller ruling, which applied to Washington D.C., which is not a state. The justices in the majority used the 14th Amendment to justify their decision Caetano v Massachusetts (2016) - Ruling: The Court ruled that the Amendment extends to ‘all instruments that constitute bearable arms, even those that were not in existence at the time of the founding fathers’ Impact - After being arrested for possession of a stun gun, Caetano’s case ended up at the SC under the 2nd Amendment. This shows a considerable interpretation of what is meant by ‘arms’ – she used what she needed to, to keep herself safe against a violent ex-boyfriend

Answer 144

4th amendment - Searches Carpenter v U.S (2018) Ruling - To acquire cell phone location data amounts to a 4th Amendment search and therefore a warrant is required to access it Impact - In a digital age, this is one of the first landmark cases that the SC has ruled on regarding privacy. It was notable also as a 5-4 decision in which four liberal justices were joined by Chief Justice John Roberts, a C.

Answer 145

5th Amendment - right to silence Right to silence (Miranda rights) Berghuis v Thompkins (2010) Ruling - A suspect simply remaining silent in an interrogation does not invoke their 5th Amendment right to silence Impact - This ruling said that staying silent was not the same as invoking the right to remain silent – a person has to explicitly state this. For some, this was seen as a challenge to the Court’s 1966 ruling on Miranda v Arizona, from which the ‘Miranda rights’ emerged Salinas v Texas (2013) Ruling - Remaining silent before being read your Miranda rights can be used as evidence in a court of law Impact - Having willingly answered police questions, a suspect of murder fell silent when asked about his shotgun. He had not been read his Miranda rights, so the police used this silence as evidence of guilt. The SC agreed, building on the case 3 years earlier and further eroding the Miranda rights 8th Amendment - Capital punishment Glossip v Gross (2015) Ruling - Lethal injection using midazolam does not violate the ‘cruel and unusual punishments’ outlawed in the 8th Amendment Impact -Following the botched lethal injection of Clayton Lockett one year earlier, Glossip argued this method of capital punishment was against the 8th Amendment. Lethal injection had already been upheld in Baze v Rees (2008) but many other SC cases placed limitations on the use of capital punishment

US supreme court Flashcards

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