US supreme court Flashcards
Where are the powers of the supreme court laid out in the constitution
The ‘Powers’ of the supreme court (such as they are), are laid out in Article 3 of the constitution. Of these three branches of government, the SC has just 369 words written about it in the constitute compared to over 1,000 words for the president and 2,000 words for Congress
There has been continued historical debate over whether this was because the SC was an afterthought for the founding fathers or because it was intended as the least important branch of government - with no obvious answer
Explain why the power of the supreme court is especially significant
The power of the supreme court today, however, is especially significant when compared to these humble beginnings. In federalist paper 78, Hamilton wrote ‘the rights of individuals an be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void’
The Federalist Papers, written by Hamilton, Madison and Jay, were a series of essays encouraging the citizens of New York to ratify the new constitution in 1787
What did Hamilton say about the supreme court
Hamilton remarked about the SC: ‘It may truly be said to have neither FORCE nor WILL but merely judgement; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgements, certainly suggesting a branch of more limited power than today
For the founding fathers, the SC provided a final check on government, guaranteeing the rights they had lost under King George 3
This is a role the Court still holds today, providing a powerful check on congressional law and presidential action. Today the SC acts as a referee, upholding the constitution, ensuring all that the other branches do, conforms with it
Explain Article 3 of the constitution in relation to the supreme court
Article 3 Section 1 of the Constitution declares: ‘The Judicial Power of the United States shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish’.
Almost as soon as the constitution was ratified, Congress passed legislation to fulfil Article 3. In the brief article regarding the judiciary, the Founding Fathers left the infrastructure of the US court systems up to the Congress to decide. It therefore passed the Federal Judiciary Act 1789, which allowed for the creation of the Supreme Court as called for by the Constitution.
The SC acts as a referee, upholding the Constitution ensuring all that the other branches do conforms with it and exercising this power through the process of judicial review - consisting then of one chief justice and five associate justices
Explain the Federal Judiciary Act 1789
By passing the Federal Judiciary Act 1789, Congress immediately set up a system of lower federal courts that would sit below the SC - 13 courts of Appeal, known as circuit courts and below these, districts courts.
Today, districts court of which there are 94, are trial courts which deal with federal matters such as trials involving federal laws or crimes, or constitutional issues. These are appellate courts, meaning courts of appeals. They predominately hear appeals to the rulings of the district courts
Explain the states district court and circuit court system
Each state has at least one of the 94 district courts operating within it; a more populous state might have more than one district court.
There are 11 circuit courts; in addition, Washington DC has a circuit court and there is one federal circuit court, making a total of 13. The SC sits above all of these courts
Explain the supreme court as an appellate court
The SC is also an appellate court, hearing appeals to the rulings made by the circuit courts. According to the Constitution, it has also original jurisdiction in certain cases. ‘Original Jurisdiction’ is the right for a case to be heard in the first instance by the SC, without going through the lower courts.
For the SC, this means cases involving public ministers, two or more states and citizens of different states. These kinds of cases are rare, with the court having heard fewer than 200 since its creation. Most of the work of the Court is therefore created through hearing appeals from lower courts
Explain the number of cases the supreme court hears each year
The number of cases that the SC hears each year, has however been declining in recent times. Today, the court receives between 7,000 and 8,000 cases a year, of which it will hear around 1%. As the court can decide which cases it wishes to hear, most cases referred to it will be ‘disposed of’. There is no right to have a case heard by the SC - it hears only those cases that it believes are of a major constitutional significance
What did the constitution aim to do in relation to the supreme court
The constitution aimed to make the supreme court independent appearing to follow Montesquieu’s advice that ‘there is no liberty if the judiciary power be not separated from the legislative and executive’.
There are a number of ways in which this can be achieved:
- Justices are appointed for life
- Vacancies on the SC
- Constitutions prevents salary of justices being lowered during time in office
- Justices are nominated by the P and requires senate approval
- Judicial review
- American Bar association
Explain how justices are appointed for life
Justices are appointed for life, meaning the P or Congress cannot simply remove them if they make decisions that they do not like.
This is especially important given the numerous comments made by differing Ps expressing their displeasure at the voting habits of a justice they appointed
Truman declared that ‘whenever you put a man on the SC. He ceases to be your friend’ referring to two of his own appointees voting against him in a SC decision
Explain vacancies on the SC
Vacancies on the SC are only available if a current justice dies, retires or is impeached
While technically the constitution allows congress to change the number of justices. It has been nice since the judiciary act 1869.
This prevents the other branches of government packing the Court with their allies
Explain how the constitution outlines the salary of judges of the supreme court
The constitution prevents the salary of the justices being lowered during their time in office, protecting them from the desires of Congress and the P
In 2018, SC associate justices were paid $255,3000 while the chief justice was $267,000
With their salary being fixed the justices do not have to be concerned over repercussions from the president or congress if they vote against him in a case
Explain how justices are nominated to the supreme court
While justices are nominated by the P, the constitution requires the Senate to approve their appointment to prevent one branch from dominating the SC and filing it with those of a similar ideology to them
It also means that the court has an air of legitimacy being appointed by elected representatives but is protected from the whim of public opinion
Explain the separation of powers in relation to the judiciary
Separation of powers protects the Court’s independence by granting it its own power
Judicial review allows the SC to check the power of the P and Congress, while the Court itself has no power to enforce its decision
It is therefore reliant on the other branches to carry out its decisions, making the three branches of government independence but co-dependent
Explain the American Bar Association in relation to the supreme court
The American Bar Association rates the suitability of each of the justice nominated
As industry experts rather than politically motivated, the members of the ABA help to ensure that the court is composed of people who understand and carry out the letter of the law rather than the will of their party
Explain judicial review
The constitution allows for the power of the SC to ‘extend to all cases, in law and equity, arising under this constitution, the laws of the united states and treaties made or which shall be made’. Beyond this, Article 3 is remarkably vague. It certainly makes no mention of the power of Judicial review.
Judicial review is the power of the SC to review the laws or actions from Congress, the actions of the P or the actions of state governments and declare them unconstitutional. In doing so, these laws or actions become null and void meaning they are no longer enforceable as they contradict the US Constitution. This power, however, is effectively taken by the Court itself - it is not mentioned in the Constitution. Shortly after its creation, the SC heard two cases which it would grant itself the power of judicial review: Marbury v Madison (1803) and Fletcher v Peck (1810)
Explain judicial review in relation to Marbury v Madison (1803)
Marbury v Madison (1803) - established the SC right to judicial review
As President Adams prepared to leave office in 1801, allowing Thomas Jefferson to take over, Adams appointed a number of men to positions within the courts. Once Jefferson, took office, he found that the commissions for some of these men had not been delivered and told his newly appointed secretary of state, James Madison not to allow their delivery.
William Marbury, to whom one of these commissions had been promised, challenged Madison over his action in the SC. The SC while finding in favour of Marbury, also found that it did not have the power to force the issue of his commission, ruling that part of the Federal Judiciary Act 1789 conflicted with the Constitution and was therefore unconstitutional.
This was the first use of judicial review over a federal law. ‘It is emphatically the province and duty of the judicial department to say what the law is’. This extract from the Marbury v Madison ruling has become one of its most quoted lines, in which Chief Justice John Marshall effectively granted to the SC the power of judicial review over federal issues
Explain Judicial review in relation to Fletcher v Peck (1810)
Fletcher v Peck (1810) - first case which ruled a state law unconstitutional
Just 7 years after Marbury v Madison came a second landmark case: Fletcher v Peck. In this case, the SC further extended its power of judicial review. The case arose out of a dispute over a law passed by the Georgia state legislature in 1795, which allowed for the sale of 35 million acres of land. Most of the land was sold to just four companies at a bargain price. It soon became apparent, however that many of the Georgia legislators involved in creating and passing the law had been bribed. Following public outcry, the legislature repealed this law in 1796 and removed the land from those who had bought it.
The dispute between fletcher and Peck came about over, the issue of whether land that had been acquired under the 1795 Act could be legally sold on. Fletcher had purchased 13,000 acres of land from Peck in 1803. Fletcher then discovered that the land he had bought had originally been part of the 1795 sale that had been repealed. Fletcher therefore, brought changes against Peck, claiming he had lied to him over the land.
The SC decided that the repeal of the 1795 law by the Georgia state legislature was unconstitutional. More importantly this was the first time, the SC ruled against a state law, extending its power of judicial review to state law as well as federal law
Explain why the power of judicial review in important
The power of judicial review is really the only power the SC holds today. It is, however, an important one. In deciding whether an Act or action is unconstitutional the SC justices are responsible for interpreting the meaning of the Constitution. Additionally, as they are interpreting the sovereign document of US politics, their decisions on the meaning of the constitution are effectively final - the only way to overturn a SC decision would be to change the document itself. It is so difficult to pass a constitutional amendment: however, this has happened only once with the 16th Amendment
Explain how judicial review updates the meanings of the words in the constitution
By using its power of judicial review, the SC are in effect, updating the meanings of the words of the constitution most of which were written over two centuries ago. Therefore, the court decades what the phrase in the Eight Amendment (written in 1791) forbidding ‘cruel and unusual punishments’ means today.
Likewise, it decides whether the first Amendment right of ‘freedom of speech’ applies to the interest, for example. As a former Chief Justice Charles Hughes Evans said in 1907, ‘We are under a Constitution, but the constitution is what judges say it is’. The power of judicial review is therefore a significant one, and the cause of much conflict in US politics both between the branches of government but also regarding how much power unelected and therefore accountable justices should be allowed to wield
Explain how the Sc is a host of political issues
Using the power of judicial review, the SC has involved itself in a host of political issues, not least in acting as a guarantor of fundamental civil rights and liberties. It is this that helps give the court its political importance because many of these issues dealt with by the SC are the key political issues of the day and therefore it turns into a quasi legislative body
Explain the appointment process for the supreme court
While the SC is independent from the P and Congress, both of these branches of government play a significant role in shaping the Court. Congress not only controls the infrastructure of lower courts, but it also sets the number of justices on the SC. Since the Judiciary Act 1869, there has been one chief justice and eight associate justices.
Constitutionally, the P must nominate justices for the Senate to either confirm or reject
State the stages in the appointment process for SC justices
- vacancy arises
- presidential nomination
- American Bar association
- Senate Judiciary Committee Hearings
- Senate floor vote
Explain the stage of a vacancy arising in the supreme court in the appointment process for SC justices
Vacancy arises -
A vacancy on the SC can only arise through death, retirement or impeachment of a current SC justice.
Examples:
J Scalia died in 2016 and Chief J Rehnquist died in 2005 both while holding seats in the SC
J Kennedy retired in 2008
Chase was the only SCJ to face impeachment in 1805 but was found not guilty
Explain the stage of presidential nominations as a part of the nomination process for SC
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
Explain the nomination process stage for SC of the American Bar Association Rating
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
Explain the nomination process stage for SC of Senate Judiciary Committee Hearings
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
Explain the nomination process for SC judges of Senate floor vote
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
Explain the unexpected retirement of Justice Anthony Kennedy
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.
Why was nominations to replace Kennedy controversial
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.
Why was the appointment of Kavanaugh significant
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
State the stages of Kavanaugh’s appointment process
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
Explain the protestors in relation to Kavanaugh’s hearing
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
state factors for presidential considerations for a judicial nominee
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
Explain judicial experience in relation to presidential considerations when choosing a nominee
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
Explain outgoing justices in relation to presidential considerations when choosing a judicial nominee
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.
Explain the demographics of the SC in relation to presidential considerations for a judicial nominee
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.
Explain the ideology of the nominee in relation to the presidential considerations for a judicial nominee
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.
Explain the life tenure that supreme court justices enjoy
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
Explain the current court of the supreme court
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.
Explain ideology and judicial philosophy
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):
What is conservative ideology in relation to the supreme court
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
What is liberal ideology in relation to the supreme court
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
Explain the difference between conservative v liberal in relation to the supreme court
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
Explain strict constructionist judges
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.
Explain loose constructionist judges
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
Explain the difference between strict constructionist and loose constructionist judges
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
Explain judicial restraint
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.
Explain judicial activism
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.
Explain the difference between judicial activism and judicial restraint
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
Explain originalism
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
Explain living constitution
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
Explain the distinction between originalism and living constitution
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
Explain the debate between originalists and those who are living constitution judges
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.
state judges who are strict constructionists
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)
state judges who are loose constructionists
Sonia Sotomayor (Obama)
Elena Kagan (Obama)
Ketanji Brown Jackson (Biden)
As a result of the diversity of judicial philosophy, is the supreme court always divided on cases?
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.
state evaluation of the appointment process of the SC
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
Explain the length of the process in relation to the appointment process of the SC
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
state the timeline of supreme court nominations 2016-17
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
Why is the length of the process for supreme court nominees good?
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.
Explain the politicisation of the process for appointments to the supreme court
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.
How does the president play a role in politicising the appointment process
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.
Explain the appointment of sonia sotomayor
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.
Why did the powers of the US SC frustrate Roosevelt
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.
How does the senate and the president politicise the supreme court nomination process
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’.
Explain how the media and interest groups have politicised the supreme court nomination process
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.
