US Supreme Court and Civil Rights EXAM Flashcards
Independence of the Supreme Court
Separation of powers, so can only be a member of the judiciary if you are not a member of the executive or legislature. In Article 3 of the Constitution, security of pay is guaranteed. President Truman once stated ‘whenever you put a man on the Supreme Court, he ceases to be your friend’
The Senate must confirm the president’s nomination for new justices, so the president is prevented from appointing someone who will not act independently because they have close connections to the president.
Justices are appointed for life as they have security of tenure. Therefore justices can only be removed by Congress is they have acted illegally and have a 2/3 supermajority to impeach them. Therefore, justices have the freedom to disregard the wishes of Congress and the president
Appointment Process for the US Supreme Court
A vacancy occurs due to an impeachment, death or someone retiring e.g. Ruth Bader-Ginsburg dying in 2020
The President nominates a new justice e.g. Amy Coney Barrett 2020. This is influenced by the judicial ability (RBG was highly experienced in law, whereas Harriet Miers was not), ideology (Trump nominate 3 conservative judges), social characteristics (Obama replacing 2 male judges with 2 female judges to increase diversity) and political motivations (Obama’s nomination of Sotomayor increased his support among Hispanic voters)
The Senate Judiciary Committee holds hearings, and the American Bar Association issues a report on the extent to which the justice is qualified. The full Senate votes as to whether to confirm a nominee, and a simple majority is required to confirm the nominee
The process ensures independence as there are checks and balances, scrutiny and the justice is not under obligation to any one political institution. Judicial ability is ensured due to the Senate Judiciary Committee hearings e.g. Harriet Miers withdrew in 2005. Finally, the process ensures personal suitability, as Kavanaugh’s sexual assault claims were investigated, and Douglas Ginsburg was withdrew after evidence emerged of previous marijuana use
The process has been criticised as the president’s ability to nominate justices means they can influence the ideological balance of the Supreme Court (Trump nominating 3 conservative judges), making the Supreme Court a political body. Furthermore, the confirmation of judges is partisan (the Senate’s refusal to confirm Merrick Garland, but quickly confirming Amy Coney Barrett despite it being an election year)
Judicial Activism and Judicial Restraint
Judicial activism is an approach to decision making that holds that a justice should use their position to promote desirable social ends by overturning political institutions or court precedent. Similar to loose constructionist’s approach of a ‘living constitution’ which puts that the constitution should be loosely interpreted so it fits a modern age. Liberal judicial activism was used in 2015 Obergefell v Hodges and conservative judicial activism was used in 2010 Citizens United v FEC
Judicial restraint is when judges use ‘stare decisis’ and use an ‘originalist’ approach to the constitution, interpreting it as written and relying on previous rulings. Often a stance taken by conservative judges it was used by liberals in Whole Woman’s Health v Hellerstedt to uphold Roe v Wade. Conservative judges used it in Glossip v Gross
Criticisms of Judicial Activism and Restraint
Judicial activism is bad as the Supreme court is unelected and cannot be held accountable for the decisions it makes, breaches the separation of powers, ignores federalism as the Supreme Court strikes down state laws and as the Court can overrule its own decisions even when the constitution has not changed suggests that the Court acts politically rather than neutrally
Judicial restrain is bad as the constitution is outdated, the Supreme Court is the only branch that deals with controversial rights without fear of public reprisals and if the Supreme Court were to defer to elected branches of government, policies which directly contravene the constitution could stand
The Judiciary is Politicised
The President gets to nominate justices, and can thus tilt the balance of ideological views of the court, such as how Trump nominated 3 conservative leaning judges, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett
The Court can also essentially create law through judicial activism, such as the 2015 Obergefell v Hodges case which legalised same-sex marriage across America, or the 2010 Citizens United v FEC which legalised the creation of Super-PACs
The Judiciary is Not Politicised
No political pressure on rulings due to the separation of powers
Supreme Court judges are not accountable through elections and are appointed for life e.g. 2018 Kavanaugh
Article 3 puts that the Supreme Court’s role is to make decisions based on the law and the Constitution, not their personal political beliefs. Judges often are influenced by stare decisis, upholding the precedent of previous rulings
Protection of Civil Rights
The Supreme Court uses judicial review to make ‘unconstitutional’ actions ‘null and void’ to protect the rights of US citizens, ensuring that the Bill of Rights is upheld such as in the 2008 DC v Heller case where the Supreme Court ruled that a ban on handgun ownership was unconstitutional or the 2011 Snyder v Phelps case where the court ruled that the Westboro Baptist Church had the right to hold anti-gay protests at the funerals of soldiers
Judicial activism and a loose constructionism led to the Court establishing more rights, such as when it ruled in Obergefell v Hodges 2015 case that a ban on same-sex marriage was unconstitutional or Citizens United v FEC 2010 which overturned unconstitutional policy which regulated money in elections
Originalist approaches to the constitution ensures that the Founding Father’s intentions are upheld
However, 2015 Obergefell v Hodges lead to the arrest of Kim Davis who refused to issue marriage licenses to same-sex couples, so it could be said that the creation of rights to one group is to the detriment of other groups (religious rights infringed)
Furthermore, the Supreme Court only hears about 1% of the cases put to it and has no power to enforce its ruling as it relied on Congress and the president to enforce the ruling of 2010 Citizens United v FEC
The Supreme Court is Imperial
The Supreme Court is unelected and thus unaccountable
The unelected Supreme Court can utilise judicial review which strikes down laws made by the elected Congress
Judicial activism allows the court to essentially create law, such as 2015 Obergefell v Hodges or 2010 Citizens United v FEC and Sonia Sotomayor stated that the Supreme Court is ‘where policy is made’
The Supreme Court is Not Imperial
Whilst the Supreme Court may be able to utilise judicial activism, it is reactive, and can only rule on the cases brought before it, so cannot create any law it wishes
The Supreme Court cannot enforce its rulings and had to rely on Congress and the president to enforce the ruling of 2010 Citizens United v FEC
The Supreme Court can only interpret the constitution
Congress can overturn Supreme Court rulings such as how in 1913 the 16th amendment gave Congress the authority to enact income taxes, overturning the Supreme Court’s ruling in Pollack v Farmer’s Loan and Trust Co
Race Rights
Plessy v Ferguson (1896, segregation is constitutional if separate but equal)
Brown v Board of Education (1954, racial segregation in schools is unconstitutional)
Fisher v University of Texas (2016 case ruling Affirmative Action constitution)
Shelby v Holder (2013 case giving states the ability to impose voting restrictions)
Improved Representation of Races
The 115th Congress from 2017-2019 was the most racially diverse, with 52 African American members and 45 Hispanic members
In 2008 Barack Obama became the first African-American president
Obama’s 2009 cabinet was the most racially diverse ever with one African-American member, two Hispanic members and two Chinese-Americans.
