US Supreme Court Flashcards
What is article 3
Sets up the Supreme Court:
Founding fathers like Madison show they thought the SC should ‘interpret the constitution’ and ‘protect rights’ but vague about how it should do this, how much power in relation to other two branches.
Why can it be said that the constitution itself does not set up the Court
This was done by an immediate Act of Congress in 1789
What did the 1789 Act do
The Act laid down there would be 6 ‘justices’, one of them ‘chief justice’.
1789 Act also established courts below SC that would deal with ‘non-state’ issues ie federal crimes or constitutional.
What is the difference between a District and Circuit Court
Circuit courts cover larger areas than district. A case would usually go to district first and then if complainant not satisfied to appeal at the circuit court. If complainant still not satisfied can appeal to SC.
How do cases come to the SC
- District or circuit appeals to it (most common)
- SC also has ‘original jurisdiction’; often when more than one state, a foreign state, members federal gov’t
How many cases come to the SC
It is asked to hear 7-8000 each year but only agrees to hear 1%, about 80.
Number of cases SC hears has reduced from end 19th/start 20th peak and again from 1980s level.
What Act changed the number of justices to 9
1869 Act
What is original jurisdiction
The right of the SC to be the first court to hear a case, rather than it being brought on appeal
What happened to a SC justice in 1805
Only time one has been impeached
What executive order did Biden sign in 2021 in relation to the SC
Biden Exec Order to establish commission on SC in
light of 6-3 split; Commission supported bipartisan
support for 18 yr terms but not for expanding size SC.
How is seperation of powers achieved in relation to the SC
- Justices appointed for life
- Vacancies only if justice dies, retires or is impeached by Congress
- Number of justices decided by Congress; Biden did threaten to get Congress to pass bill increasing current 9 due to conservative majority, but empty threat
- Constitution prevents salary from being reduced.
- Justices nominated by President but ratified by Senate (simple majority) to prevent one branch having excessive power over judiciary. This seems democratic, but FF probably did not foresee how political appointments would become ie less neutral than UK judges.
- SC has power of judicial review over both other branches, but has no power to ensure they implement its rulings ie the branches are independent but co-dependent.
- American Bar Association vets nominees for legal expertise which helps ensure their independence.
What does the constitution say about the SC power in relation to judicial review
‘all cases, in law and equity, arising under the Constitution, the laws of the United States [ie passed by Congress or executive] and treaties’. This is extensive power (covers everything!), but vague about how
What is Marbury V Madison 1803
Between federal government (Madison) and individual judge (Marbury) and ruled that part of the Federal Judicary Act 1789 was unconstitutional. This established the principle that the SC can ‘strike down’ acts of congress or executive. So far, Congress and Execeutive have accepted these types of decisions.
What is Fletcher V Peck 1810
SC ruled a state’s law was unconstitutional, establishing their right to interfere in states.
What are the stages of the appointment of justices
Vacancy arises, president nominates, ABA rating, Senate Judiciary Committee, Senate floor vote
What happens during the vacancy arises stage (1st) and examples
Through retirement, death, impeachment
(Liberal) Ruth Bader Ginsburg died Sept 2020 and Trump replaced her with Amy Coney Barrett
(Liberal) Breyer retired 2022 and Biden appointed Ketanji Brown
What happens during the president nominates stage (2nd)
They can choose whoever they want but expected the ABA will approve them as having legal experience and that Senate will approve
In the US, judges see themselves as ‘independent’ but not as ‘neutral as in the UK ie many justices gain reputations for liberal or conservative views
Before 2005 Presidents appointed
Examples of nominees who failed to get put in as a justice
G.W. Bush nominated Harriet Miers but many thought she was not qualified enough, he withdrew her nomination before Senate stage.
2016 Scalia died; Obama tried to appoint Merrick Garland but Republican Senate said they would refuse because so close to end of Obama’s turn.
Robert Bork failed Judiciary Committee (see below) in 1987 because too conservative.
What happens during the ABA rating stage (3rd) and examples
ABA rates nominees for extent of legal qualification, though Senate could in theory ignore their advice
Clarence Thomas the only current justice less than ‘well qualified’
What happens during the Senate Judiciary Committee stage (4th) and examples
Hearings allow for in depth questioning, which has become more common given partisanship; ideally the full Senate will accept this committee’s recommendation.
Thomas accused of sexual abuse 1991, Kavanaugh also, in 2018
What happens during the Senate floor vote stage (5th) and examples
Following 2017 reforms this vote cannot be filibustered and requires simple majority.
Votes of all nominees since 2006 have been partisan compared with Ruth Bader Ginsburg, who was confirmed 96-3.
What is the current political situation in regard to the swing justice
Until 2018 Kennedy played this ‘swing justice’ role in a court where conservatives, including him, were 5 and liberals 4. However since 2018 we have had the unusual situation where there is a 6-3 split (conservative to liberal), leaving less chance for ‘swings’ in judgements.
What is the swing justice
Most of the time the SC has been balanced with a 5-4 split between liberals and conservatives, meaning that if one of the justices is less ideologically committed they can sometimes swing judgements in a different direction.
How divided is the court in regards to cases
Despite the huge attention to the ideological divide often evident in high profile cases like Dobbs v Jackson, under 30% of cases 2021-2022 were 6-3
