US Supreme Court Flashcards
What act introduced the Supreme Court?
Federal Judiciary Act 1789.
How is independence of the SC enforced?
-Justices appointed for life meaning they can’t lose their position based on their decisions.
-Vacancies only available if a current justice dies/retires/impeached to prevent other branches packing it with allies.
-Security of tenure to protect government interefence through bribery/threat.
-Senate approval of President’s nomination.
-Granted its own independent powers such as judicial review.
-American Bar Association rates candidates.
Which two cases granted the SC the power of judicial review?
Marbury v Madison 1803
Fletcher v Peck 1810
What did the Judiciary Act of 1896 establish?
-One chief justice and 8 associate justices.
-P must constitutionally nominate justices for the Senate to confirm or reject.
What are the stages of the appointment process?
-Vacancy arises
-Presidential nomination - consider demographic, ideology and experience.
-American Bar Association rating
-Senate Judiciary Committee hearings
-Senate Floor vote - 2017 can no longer be fillerbustered.
Why was Brett Kavanaugh’s appointment controversial?
-Kenedy known as ‘swing justice’, whereas Kavanaugh very conservative, creating an ideological imbalance.
-Appointment embroiled in accusations of sexual assault.
-IGs such as pro-choice NARAL lobbied against.
2018
How does Neil Gorsuch’s appointment highlight lack of judicial neutrality?
-Obama had nominated Merrick Garland but Mitch McConnell (majority leader of the House) rejected nomination as it was ‘too late’ in Obama’s term.
-BUT he allowed Trump to nominate and appoint Gorsuch in his last year.
-Enabled Trump to appoint 3 justices and ideologically restructure the SC.
2016
What evidence regarding the nomination of officials on a like-for-like basis suggests the nomination/appointment process is too politicised?
-By appointing officials on a like-for-like basis, the nature/make-up of the SC remains fairly stable and balanced (if ideology of SC justices remained equal).
-SC justices Alito, Kavanaugh and Amy Coney Barrett were not likefor-like replacements, as they were significantly more conservative.
-This highlights how presidential nominations aren’t focused on neutrality and balance, but instead the idea of packing the SC with allies.
How has the demographic of the SC improved in diversity?
-Obama appointed two women, one of which was Sonia Sotomayer, the first Hispanic justice.
-Biden appointed Ketanji Brown Jackson, the first AA female.
What are the ideas of a conservative justice?
-More likely to try and achieve rulings which produce a more limited federal government.
-Want to uphold conservative ideals such as pro-gun and anti-abortion.
-Likely to interpret Constitution literally.
What are the ideas of a liberal justice?
-More likely to try and achieve rulings which produce greater equality for all, even if that means a larger federal government.
-Uphold liberal ideals such as LGBT rights and gun control.
-Likely to interpret the Constitution more broadly.
What is judicial restraint?
-Believes in a limited role for the SC.
-SC is to rule only for the people in front of them in a case.
-Deferring to the elected and accountable branches when possible.
What is judicial activism?
-Justice who believes in using their position on the Court to achieve rulings that give desirable social ends as far as their ideology is concerned.
-May include overturning previous Court rulings.
What are the ideas of a strict constructionist?
-Will stick to the wording of the constitution as the text is written, without interpretation.
-Includes protecting state power.
What are the ideas of a loose constructionist?
-More willing to interpret the wording of the Constitution broadly.
-May include giving more power to federal government.
What is originalism?
-Belief that the meaning and interpretation of the Constitution is set by its original principles.
-It shouldn’t be subjected to broad interpretation considering modern advances.
What is a living Constitution?
-Belief that the Constitution is a living, organic and evolutionary document that can be changed through reinterpretation over time.
-Closely linked to loose constructionism.
Who are strict constructionists on the 2025 SC?
-Clarence Thomas (Bush)
-John Roberts (Bush)
-Samuel Alito (Bush)
-Neil Gorsuch (Trump)
-Brett Kavanaugh (Trump)
-Coney Barrett (Trump)
Who are loose constructionists on the 2025 SC?
-Sonia Sotomayor (Obama)
-Elena Kagan (Obama)
-Ketanji Brown Jackson (Biden)
What was Dobbs v Jackson Women’s Health Organisation?
What was Biden’s response?
-2022
-Overturned Roe v Wade
-12 states have a complete abortion ban as a result.
Biden called it a ‘tragic error’.
How is the length of the SC appointment process problematic?
-2 to 3 months.
-If the justice has died, the SC is left with 8 justices.
-This was possibly a factor in the striking down of Obama’s DAPA. There were only 8 justices, leading to a 4-4 tie after the death of Justice Scalia.
How is the long appointment process beneficial?
-Ensures candidates undergo vetting and that they’re suitable for the post on the SC.
-Harriet Miers’ withdrawl was partly due to the criticism she faced for her lack of experience.
-Allows plenty of time to ensure the candidate is suitable.
What is evidence to suggest the appointment process has become politicised?
-Since 2006 appointments have seen party-line votes in the Senate e.g all Rs voted for Kavanaugh but only 1 out of 49 Ds.
-Senate Judiciary Committee tends to try attack/embarass the nominee rather than elicit relevant info.
-Ps usually nominate someone with similar ideology, rather than to allow continuity/like-for-like replacement. E.g Kavanaugh and Gorsuch more conservative than predecessors.
How can the P politicise the SC appointment process?
-Pick someone with an ideology that aligns with their own.
-If a P has party control of the Senate, he can get just about anyone he wants confirmed.
Give an example of how Ps have used the SC to pack it with allies.
-Trump
-Appointed 3: Gorsuch, Kavanaugh, Coney Barrett.
-Allowed him to move the SC ideologically to the right.
-Possibly reason for Dobbs v Jackson 2022, overruling Roe v Wade.
How does the media politicise the appointment process?
-Create a media circus.
-E.g volume of protests against nomination of Kavanaugh.
-E.g Gorsuch’s appointment huge donations such as Judici Crisis Network have $10 million to support him.
Overall strengths of the appointment process.
-Nominees reciece detailed background scrutiny from the White House, FBI, SJC, and the media.
-Senate confirmation provides an important check on the P.
-Some justices have proven to be independent of their political patrons.
-Specialist IGs such as ABA provide legislators with additional insights.
Overall weaknesses of the appointment process.
-SJC is politicised and partisan.
-Specialist IGs are affected by the political angle.
-Public nature of the process can make it a media circus and partisan.
-Opposing IGs often pur millions into advertising anf lobbying the Senate.
-Reinforces the impression of a highly politicised court.
Give examples of liberal judicial activism
Brown v Board of Education of Topeka 1954 - desegregation.
Roe v Wade 1973 - abortion rights.
Obergefell v Hodges 2015 - legalised same-sex marriage nationally and struck down DOMA as unconstitutional.
Give examples of conservative judicial activism
Bush v Gore 2000 - effectively gave presidency to Bush.
DC v Heller 2008 - extended the provisions of the Second Amendment to include individual right to bear arms not only for militia reasons.
Dobbs v Jackson Women’s Health Organisation 2022 - overturned Roe v Wade and the constitutuional right to abortion.
Give an example of liberal judicial restraint
Whole Women’s Health v Hellerstedt 2016
Demonstrated a continuing defense of Roe v Wade, a constitutional principle.
Ruled that Texas’ limit to two abortion clinics was unconstitutional.
Give an example of conservative judicial restraint
Glossip v Gross 2015
-Shows SC continual defense of execution based on the Constitution.
-Court held, 5–4, that lethal injections using midazolam to kill prisoners convicted of capital crimes do not constitute cruel and unusual punishment under the Eighth Amendment
What are criticisms of judicial activism?
-SC is unelected and unaccountable.
-Allowing SC to strike down Acts of Congress and the executive branch, with only limited checks on their power, breaches the separation of powers.
-Allowing Congress to strike down state laws** ignores the constitutional principle of federalism**.
-Court is acting politically rather than neutrally.
-Judicial review interprets the Constitution meaning their are a lack of checks on power.
What are criticisms of judicial restraint?
-If SC defers to elected branches, it may allow laws and policies that contravene the Constitution to stand.
-As the SC is unelected, they are the only branch that can deal with controversil issues/minority rights without fear of public reprisals.
-Codified Constitution would be outdated if SC were unable to interpret it.
-Court should act to limit the power of government as the FF intended.
What Court shows judicial restraint and why?
The Roberts Court
John Roberts became the swing justice, and often acted with judicial restraint.
His decisions often don’t appear to follow a particular political ideology as he changes.
John Roberts judicial restraint shown in abortion.
Gonzales v Carhart 2007 voted to uphold Partial-Birth Abortion Ban Act passed by Congress and signed by Bush - upholding actions of the elected and women’s constitutional right to abortion.
Whole Women’s Health v Hellerstedt 2016 voted to uphold Texas new state laws limiting abortion clinics - adhered to Texas state legislature, elected.
Voted against overruling of Roe v Wade in 2022 - following the constitutional precedent set in 1973.
John Roberts judicial restraint shown in LGBT+ rights.
2015 Obergefell v Hodges voted against recognition of same-sex marriage - accused others of enacting their own vision as it wasn’t in Constitution.
2020 Bostock v Clayton County voted in protection of LGBT+ rights - deferred to CRA 1964, passed by the elected.
What impact can the SC have on public policy?
-Remove a policy
-Create new policy
In which 2 cases did the SC effect election policy?
Citizens United v FEC 2020 - created new policy by allowing for the creation of Super PACs which could raise unlimited amounts for campaigning.
McCutcheon v FEC 2010 - removed the ‘aggregate cap’ which limited the total amount an individual could spend in an election.
In which 2 cases did the SC affect healthcare policy?
NFIB v Sebelius 2011 - upheld Obamacare.
King v Burwell 2015 - upheld the key principle of OBamacare that subsidies were available for those in the federal healthcare exchange.
Had they voted ‘no’ in 2015, it would’ve reduced federal subsidies by $29 billion and made healthcare unaffordable for many.
In what case did the SC affect environmental policy?
Michigan v Environment al Protection Agency (EPA) 2015
-SC limited the interpretation allowed by the executive branch when enforcing legislation.
-EPA now had to consider whether costs could be justified, undermining Obama’s environmental policy.
How can the SC have an impact in choosing not to hear a case? Use an example.
-The ruling of the lower court will stand.
-E.g. Planned Parenthood of Arkansas v Jegley - challenged Arkansas’ strict regulation of medically-induced abortion making it challenging to obtain the ‘abortion pill’. In refusing to hear the case, the SC allowed this law to come into force in Arkansas.
What are the 4 cases the SC has ruled on affecting abortion law?
Roe v Wade 1973
Gonzales v Carhart 2007 - upheld Partial-Birth Abortion Ban Act 2003.
Whole Women’s Health v Hellerstedt - struck down Texas’ law enabling only 2 abortion clinics in the state.
Dobbs v Jackson 2022 - overruled Roe v Wade.
What are the 2 cases the SC has ruled on affecting marriage equality?
United States v Windsor 2013 - declared DOMA 1996 unconstitutional as is denied federal benefits to married same-sex couples.
Obergefell v Hodges 2015 - made same-sex marriage legally recognised nationally.
DOMA - Defense of Marriage Act
What do the examples of SC cases affecting law show about the SC?
-Interpretation.
-Guaranteeing and guarding the rights and liberties of the Constitution.
-Becoming a political institution.
-Acting as a quasi-legislative body.
What was the Clarence Thomas scandal?
-Failure to diclose lavish gifts of luxury vacations and private-jet travel from a Texan real estate magnate.
What 4 things prtect the rights and civil liberties of US citizens?
-Constitution
-Bill of Rights
-Subsequent constitutional amendments
-Rulings of the SC
What is the Bill of Rights?
The first 10 amendments to the Constitution, ratified togetehr in 1791.
What are 7 of the the 10 selected rights protected by the Bill of Rights?
- No established religion - freedoms of religion, speech and assembly.
- The right of the people to keep and bare arms.
- No deprivation of ‘life, liberty, or property, without due process of law.
- The right to a speedy and public trial, by an impartial jury.
- No excessive fines or ‘cruel and unusual punishments’.
- Enumeration of rights (written) shouldn’t contradict other rights.
- Powers not delegated to federal gov are reserved to the states.
What are constitutional amendments that protect the rights of citizens?
-13th - abolished slavery.
-14th - granted full citizenship to those born in the US.
-15th - right to vote irrespective of race or colour and all US males in theory.
-24th - forbade denial of the vote for non-payment of taxes.
-19th - 1919 full voting and political rights to woemn equally to men.
-26th - 1971 lowered voting age from 21 to 18.
2 cases of the SC protecting the 1st Amendment.
Free speech and religion
Synder v Phelps 2011 - ruled free speech in public, even if considered offensive or emotionally distressing, is not limited.
Burwell v Hobby Lobby Stores 2014 - Obamacare provisions cannot require employers to provide insurance cover for birth control if it conflicts with their religious beliefs.
3 cases of the SC protecting the 2nd Amendment.
Gun control
District of Columbia v Heller 2008 - ruled their is a right to gun ownership without a connection to militia, and for use in the home as self-defense.
Chicago v McDonald 2010 - ruled the Constitution protects the right to keep arms for seld-defense and thisright can’t be infringed by local/state gov.
Caetano v Massachusetts 2016 - ruled all instruments that contitute bearable arms are included in the Amendment, reversing Massachusetts ban.
1 case of the SC protecting the 4th Amendment.
Searches
Carpenter v U.S 2018 - ruled to aquire cellphone location data amounts to a 4th Amendment search and therefore requires a warrant to access.
2 cases of the SC protecting 5th Amendment.
Right to silence (Miranda rights)
Miranda v Arizona 1966 - established code of conduct for police interrogations to protect the right of suspects from incriminating themselves (police must inform the suspect of their rights to remain silent and have an attorney).
Salinas v Texas 2013 - remaining silent before being read your rights can be used as evidence in a court of law.
1 case of the SC protecting the 8th Amendment.
Capital punishment
Glossip v Gross 2015 - lethal injecting using midazolam does not violate the ‘cruel and unusual punishments’ outlawed in the 8th Amendment.
2 cases of the SC protecting 14th Amendment.
Women + LGBTQ rights
**Whole Women’s Health v Hellerstedt 2016 **- Texas laws were unconstitutional.
Obergefell v Hodges 2015 - right to marry is guaranteed to same-sex couples by the 14th Amendment.
How has the SC’s power of judicial review turned it into a political institution?
-Can make decisions on contentious issues on which the two major parties fundamentally disagree.
-Allows them to lead where both Congress and the P have been unwilling or unable to.
-Effectively makes them a political institution.
How has the court’s power of judicial review made it a quasi-legislative body?
-Many of its decisions have had the same effect as legislation.
-Seen particularly in the rulings of loose constructionists who some claim ‘legislate from the bench’.
What is affirmative action and why do some disagree with it?
What did Trump have to say about it?
-Designed to create a more equal lanscape by giving minority individuals an advantage.
-Justice Roberts claimed it was essentially a racist policy in itself.
-Trump argued against it, blaming it for a 2025 plane crash.
What suggests the Court lack enough power to effectively protect rights?
-Only hear about 1% of cases.
-Lacks the power to enforce its ruling and must rely on the P and Congress.
-Ultimately bound by the Constitution which is rigid and old.
How does the Constitution assist the SC is protecting rights effectively?
-Allows Court’s rulings to have considerable influence as they are effectively sovereign.
-Vagueness of the Constitution allows a good deal of breadth in the Court’s interpretation to protect rights that aren’t explicitely identified.
What are arguments for a living constitution?
-SCs duty to be faithful to the values/provisions of the Constitution and protect from tyranny of the majority.
-Elected branches favours majority so SC protects minorities.
-With some amendments being virtually impossible in the modern era, judicial activism is the only way the Constitution can be upheld.
-Principles of the Constitution are applied in a contemporary setting.
-Some words in the Constitution are redundant today if not interpreted as the FFs could not have envisaged our modern society.
Arguments against a living Constitution.
-Makes the SC inherently political, undermining independence.
-Makes the court a player in the legislative process, not a referee.
-Undermines separation of powers.
-Changes can be left to the elected and accountable.
-Amendment process exists and has been used successfully.
-Purpose of the Constitution is to be clear, not constantly altered.
What are checks on the SC’s power?
-Dependent on Congress and P to uphold rulings.
-Checked by public opinion.
-P can only appoint justices when a vacancy occurs.
Does the SC have too much power?
YES
-Gave itself the power of judicial review.
-Has become more vigorous in striking down Acts of Congress over time.
-Has made decisions out of line with public majority.
-Unelected and largely unaccountable.
-Has abused its power to bring about significant policy change (judicial activism) e.g. same-sex marriage, abortion etc.
Does the SC have too much power?
NO
-Checked by Congress.
-Congress has the power of impeachment.
-No initiative power, must wait for cases.
-Dependent on the rule of law and other branches to enforce decisions.
-Public opinion restrains it.
-Checked by the words of the Constitution.
What 4 cases did the SC hear about Guantanamo Bay?
Rasul v Bush 2004 - struck down parts of Bush’s ‘war on terror’, ruling that detainees could petition petition federal gov for habeas corpus.
Hamdi v Rumsfeld 2004 + 2006 - declared military commissions to try detainees unconstitutional + detainees have a right to due process.
Boumediene v Bush 2008 - Military Commissions Act 2006 deemed unconstitutional.
Habeas corpus - reviewing/challenging the legality of their detention.
Reasons why the Court is imperial.
-Unelected and almost entirely unaccountable yet able to make decisions with a huge impact on the US.
-Only one justice has ever been impeached, 1805.
-Courts JR often has the final say as it is so challenging to overturn.
-Can overturn decisions of elected and accountable branches.
-Has broad powers to interpret the Constitution.
Reasons why the court is not imperial.
-No way to enforce its own rulings, dependent on the P and Congress.
-Can only rule on cases brought before it, no picking.
-Decisions can be overturned if necessary.
-Court has often shied away from controversial cases such as gun control.
-Constitution limits how justices can rule significantly.
-Justices are subject to the threat of removal.
SC cases on immigration reform
Department of Homeland Security v Regents of the University of California 2020 - Trump could not rescind DACA.
**Kansa v Garcia 2020 **- gave states new authority yo use state laws to prosecute immigrants for supplying false paperwork when applying for jobs.
Trump v Hawaii 2018 - Trump successful in his tarvel ban from several Muslim majority countries.
What is some key legislation/SC rulings concerning African American rights?
-Three-Fifths Compromise 1765
-13th Amendment 1865
-14th Amendment 1868
-15th Amendment 1870
-Plessy v Ferguson 1896
-1954 Brown v Board of Education
-1964 Civil Rights Act
How can groups attempt to effect change using the legal system?
Use examples
-Bring cases before the SC e.g. BAMN brought a case in 2014 to challenge affirmative action ban in Michigan.
-Amicus curiae briefs e.g. more than 60 filed for Trump v Hawaii 2018 from groups such as NAACP.
Give an examples of mass demonstration organised to try and achieve change?
-March on Washington for Jobs and Freedom 1963.
-Black Lives Matter (founded 2013).
-2018 Women’s March gathered 500,000 people to Washington to protest against Trump and fight for women’s rights.
-Montgomery Bus Boycott 1956.
