US Supreme Court and civil rights Flashcards
Supreme Court and the US constitution
laid out in article 111
has just 369 words about it compared to over 1000 for president and over 2000 for congress
debates over weather this is because the Supreme Court was an afterthought of the founding fathers or because its the least important branch
congress passed the federation judiciary act 1789 which allowed for the creation of the supreme court + courts that would sit below the SC
district courts - in each state - have 94 - are trial courts which deal with federal matters such as trials involving federal laws or crimes
above them sits the circuit courts of which their are 13. these are appellate courts, menaing courts of appeal. Predominantly hear appeals to the rulings of the district courts.
supreme court sits avove these and is also an appellate court , hearing appeals to the rulings made by the circuit courts.
according to constitution it has ‘original jurisdiction’ in certain cases - the right for a case to be heard in the first instance by the Supreme Court without going through lower courts. this means cases involving public ministers, 2 or more states, citizens of different states or the US. this is rare however
number of cases heard is declining in recent times. they receive between 7000 and 8000 cases a year which they only hear arund 1% of
independence of the SC
justices are appointed for life meaning the president or congress cannot remove them if they make decisions that they do not like. this is important given numerous comments made by presidents showing there annoyance - truman said ‘whenever you put a man on the Supreme Court, he ceases to be your friend’
vacancies on SC only open if a justice dies, retires or is impeached
the constitution prevents the salary of justices being lowered during their time in office - protecting them from influence by congress or president can vote against them. - in 2023 the justices were paid $274,200 with cheif justice john roberts being paid $286,700
while justices are nominated by the president, the constitution requires the senate to approve it to prevent one branch from dominating the SC and filling it with those of similar ideology. gives them some legitimacy , being appointed by elected representatives but is protected from the whim of public opinion.
seperation of powers protects the courts indepednance by granting it its own power. judicial review allows the SC to check the power of the other branches. while the coirt cant enforce its decisions, they rely on the other branches to carry them out making the 3 branches independant but codependant
the american bar association rates the suitability of each of the justices nominated. as industry experts rather than politically motivated they ensure the court is composed of people who understand and carry out the letter of the law rather than the will of their party.
what is judicial review
the power of the SC to judge the actions of presidential branches or actions of congress against the constitution. can declare these acts ‘unconstitutional’ and therefore make them ‘null and void’ meaning they are no longer enforceable as they contradict the US constitution.
article III is very vague. it makes no mention of the power of judicial review. however the power is taken by the court itself in the cases of ‘marbury vs madision’ - first use of judicial review over a federal law and ‘fletcher vs peck’- first time the Supreme Court ruled against a state law
power of judicial review is really the only power the supreme court holds however it is important. in deciding weather something is unconstitutional the SC justices are responsible for interpreting the meaning of the constitution. as they are interpreting the sovereign document of US politics, their decisions on the meaning of the constitution are effectively final - only way to overturn a decision would be to change the document itself which as the ammendment process is so hard this is difficult and only happened once with the 16th ammendment .
the appointment process for judges
congress not only sets infrastructure of lower courts, but it also sets the number of justices on the SC. since judicary act 1869 this has been one cheif and 8 associate justices
president must nominate justices for the senate to either accept or reject
process -
vacancy - eg justice scalia dies in april 2016 + justice kennedy retired in 2018 + samual chase impeached in 1805 but was not found guilty
nomination - bush and trump both nominated justices who are likely to be conservative in rulings ( Roberts, alito, kavanaugh) while Obama appointed those with a liberal outlook (sotomayor and Kagan)
ABA rating - offeres rating weather nominee is qualified or not - all but one of the current justices hold a ‘well qualified’ rating - clarence Thomas was only deemed ‘qualified’. this along with sexual assault allegations made it hard for senate to ratify him.
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Presidental considerations for a judicial nominee
judicial experience - need experience as a judge and be qualified in law. this was one of reasons the nomination of Harriet miers was criticied in 2005. ABA lends support in this area.
the outgoing justice - president expected to replace a justice on a ‘like for like’ basis in terms of ideology. these are less likely to face opposition in the senate . however alito nor kavanaugh can be claimed to be this as both more conservative than their predecessor.
the demographics of the supreme court - president may wish to widen the representative nature of the court. obama appointed 2 women, doubling the number that ever served on the court and appointed the first ever hispanic person to the court, sonia sotomayor.
the ideology of the nominee - from the rulings they have made it is possible to try and ascertain what their ideology is and whether it fits with the president. kavanaugh appeared on a list of the right wing think tank the heritage foundation before trump nominated him
the current court
The roberts court
swing justice - justice placed ideologically in the middle of the nine - in cases of an ideologically split court, the majority decision is often a result of which way the ‘swing justice votes’ .
Current court scewed to the right - 6 on conservative vs 3 liberal – become right wing because of the appointment process
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strengths and weaknesses of the appointment process
the length f the process - process from nomination to senate ratification takes between 2 and 3 months, sometimes longer. while this is not a problem if the vancancy is caused by a retiree who is willing to remain on court until process done, it is bad when vacancy is caused by a death as the court would be left with only 8 judges - in the event of a tie, the ruling of the court from which the case was appealed would stand
when obamas executive order regardig DAPA was challenged in the SC , the death of antonin scalia meant their was a 4-4 tie meaning his order was struck down. had he been able to appoint merrick garland perhaps his policy would have been saved. the same is true of anthony kennedy retiring in the summer of 2018, sc sat with 8 judges
the length of the process however helps to ensure that candidates undergo vetting and that they are suitable for the sc. harriet miers withdrawal from the process was in part due to the critical reaction given towards her lack of experience.
Politicisation of the process - with the president nominating and the senate confirming them the process has become politicised. the appointments since 2006 have seen party line votes in the senate , with few deflections for example the nomination of kavanaugh under trump no republicans voted against but 48 democrats did.
in addition, the role of the senate judiciary committee can also be questioned. in the hearings of Alito, Sotomayor, Kagan and Gorsuch they only spoke for an average of around 33% of the time over the 4 days of hearings , the rest of time is taken up by senators talking. given that they are seeing the suitably of them, the succes can be questioned when they are talking for such a short amount of time.
the president also plays a role in politicising the process. presidents try and pick someone with an ideology that aligns with their own.
anthony kennedy was a ronald reagan nominee and having 2 previous nominees rejected, it was important this one passed. kennedy proved to be moderate often voting against reagans conservatism
eisenhower referred to his appointment of earl warren as ‘the biggest damned-fool mistake i ever made’
the role of the media and pressure groups also serves to politicise the process. the media circus around the nomination process has grown - the protests against the nomination of Brett kavanaugh shows this.
during the appointment of neil Gorsuch, donars to the judicial crisis network gave 10 million to support his appointment, having given 7 million to oppose the appointment of merrick garland a year earlier. even the role of ABA can be questions in this mannar. it has no constitutional standing and is unaccountable, yet their rating has a large effect.
despite this, arguably the politcisation is defensible, given the unelected and unaccountable nature of the SC. the only mandate the justices can claim is that they were nominated by representatives in 2 branches. this lends some legitimacy to their role.
supreme court and public policy
public policy is simply the policy created by federal government, whether by new laws or executive actions. as the SC is interpreting the constitution, which is sovereign, its rulings are effectively sovereign. this gives the SC considerable power and influence over the policy that government creates, either by upholding, striking down laws, or in some cases choosing not to hear case at all. in each of these, the outcome could be that the SC rulling allows a policy to continue, remove it or even create a new policy.
recent rulings -
overturned roe vs wade in the recent 2022 dobbs vs jackson case where the court held that the Constitution of the United States does not confer a right to abortion. - this shows the impact the court can have on public as they have made 2 different rulings.
citizens united vs FEC - ruling created a new policy where it allowed for the development of super-PACs, which would previously have been impossible due to the Bipartisan campaign reform act. this therefore allowed 9 unelected judges to have a substanstial role not only in shaping the policy surrounding elections but also overturning a law created by elected representatives.
court also has impact in upholding laws. in the 2 cases on healthcare 2011 and 2015 the court ruled in favour of Obamacare.
finally court can have impact on policy in choosing not to hear a case. in doing so the rulings of the lower 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 difficult to obtain the ‘abortion pill’. in refusing to hear the case the SC allowed for this law to come into force thereby shaping policy through inaction
the SC and protection of rights
the rights that are protected in the constitution are known as ‘constitutional rights’.
the SC can only rule on rights in the constitution as there job is to interpret the constitution. the vague nature of the constitition means the court has been able to rule on abortion, same- sex marriage and gun rights
eg obergefell v hodges - the right to marry is garanteed to same sex couples by the 14th ammendment
the effectiveness of rights protections
in a number of cases while the rights of one group may be protected this may be to the detriment of another.
eg in the case of ‘obergefell v hodges’ the rights of the LBGTQ community were protected while the religos rights of people like kim Davis (a clerk in kentucky) were arguably infronged. davis refused to issue marriage liscences to same-sex couples, saying it violated her religous beliefs. she was breifly jailed for this which demonstartes the impacts of SC Rulings . conversely in Burwell v Hobby Lobby the religous rights of employees were places above womens.
also debate about how much power the supreme actually has to protect rights. the court hears only about 1% of the cases put to it in a year. this means majority of cases where people think their rights have been infringed will never be heard by the SC. In 2018 the court declined to hear a case from a florist who had refused to make an arrangement for a same sex couple.
the court also has no power to enforce its rulings. instead it relies on the power of the president and congress or the states to enforce. although controversial decisions that president has not liked have still been enforced such as citizens united vs FEC however in other cases SC ruling seems to be ignored. in the 4 cases regarding guantanama bay between 2004 and 2008, the court always found in favour of the detainees yet the fact these cases kept coming back highlights the weakness of the ruling - in this case, congress even passed a new law, the military commissions act, to try and work around a ruling this then was struck down
ultimately, all judicial action is bound by the constitution so must rule based on the words rooted in the document. in the case of synder vs phelps , the actions of westboro baptist church may have been insensitive but the constitution clearly protects the rights of free speech.
the living constitution and originalism
