USA - Supreme Court

Question 1

What is the role of the Supreme Court?

Answer 1

• Powers vested in article 3
• Largely a judicial role, arguably also a legal/political role. As an appellate court it only hears cases which have been appealed from lower courts (hence judicial restraint).
• To interpret the constitution and its law, especially via judicial review.

Question 2

For what 3 reasons will the court hear a case?

Answer 2

• The case is considered to have significant implications for the constitution or society as a whole.
• There have been conflicting lower court opinions.
• There has been a request from the federal government.

Question 3

Describe judicial review

Answer 3

• The power of the court to decide whether congressional and state legislation, and the actions of the executive branch, are constitutional.
• Sometimes cases between individuals, such as Sydney v Phelps, also have constitutional implications.
• Judicial review is not explicit in the constitution, however this power has been claimed since 1803 (Marbury v Madison).

Question 4

What is the importance of Marbury v Madison?

Answer 4

Gave the court the power of judicial review.

Question 5

Describe the appointment process of Justices

Answer 5

1. Vacancy occurs (e.g. A Justice passes away, is impeached or resigns).
2. The president nominates - from the 4 pools, advice is sought from congress, advisors and other professional bodies.
3. The Senate considers - FBI background checks, interviews with president, ABA ratings. SJC hold hearings for the candidate (with witnesses etc).
4. The Senate votes/debates - if committee rules against, Senate typically will also.

Question 6

What factors influence the Presidents nomination of a Justice?

Answer 6

• Judicial philosophy - Conservative/Liberal.
• Judicial ability - some credibility/qualification.
E.g. Elena Kagan appointed in 2010 had never served as a judge but had a distinguished academic legal career.
• Composition of the Senate - how likely are they to reject the candidate.
E.g. 3 nominees have been rejected since WW2, and all were Republican nominees rejected by a Democratic-controlled Senate.
• Representation of different groups - descriptive/substantive.
E.g. Obama appointed Sonia Sotomayor (a Latino, representing their minority view).

Question 7

What problems are associated with the appointment process of Justices?

Answer 7

• Increasing politicisation
• Lack of accountability
• Arguably a test of ideology rather than of competence.

Question 8

Describe the different judicial interpretations/philosophies

Answer 8

• Strict constructionist - interprets the constitution in its literal meaning, in a conservative fashion. Favour states’ rights and tend to favour judicial restraint. E.g. Antonin Scalia.
• Loose constructionist - interprets the constitution in a liberal fashion, reading between the lines to apply to modern day. Favour federal government power and tend to favour judicial activism. E.g. Ginsburg.

Question 9

Describe judicial independence

Answer 9

The complete separation of the judiciary from the other two branches of government.

• Separation of powers - judicial function is exclusive to the judiciary
• The appointment of Justices, not election
• Lifetime tenure of Justices - only removable through impeachment
• Fixed salary

Question 10

Describe judicial activism

Answer 10

The approach to judicial decision-making which holds that a judge should use his/her position to promote desirable social ends.

Differences in interpretation of the same part of the constitution over a period of time can sometimes be equivalent of legislation. E.g. Plessy v Ferguson (1896) and Brown v Board of Education (1954) on segregation. Could be argued that the court did not interpret constitution but amended it.

Question 11

Describe judicial restraint

Answer 11

The approach to judicial decision-making which holds that a judge should defer to the legislative and executive branches and should follow the precedent established in previous Court decisions.

E.g. Jeffersons list of questions for the court got sent back to him

Question 12

What are the limits on the Court’s power?

Answer 12

• Three formal checks in the constitution: Congress has the power to vary the size of the court, vary the sort of cases heard and to impeach Justices.
• Requires the other branches to interpret and implement decisions before they can be active.

Question 13

What is the debate over the legitimacy of the role of the SC, despite being an unelected body?

Answer 13

Conservatives argue that as an unelected body with no effective check, it should defer to the elected branches and only overrule them in the most flagrant cases of constitutional violation.

Liberals argue that the combination of a separated system of government and risk-averse politicians means that legislation in contentious areas is unlikely to be passed. If the court does not act, access to basic rights could be denied indefinitely. E.g. Plessy v Ferguson.

Question 14

Describe the composition of the Roberts Court

Answer 14

John Roberts assumed the role of Chief Justice in 2005, and is the 4th to do so. Confirmed 78-22, right leaning.
**DECEASED: Antonin Scalia. Confirmed 98-0, and was widely regarded as the leading conservative intellect of the Court.
• Neil Gorsuch - Originalist and a fan of Scalia, ABA gave highest possible rating in confirmation process. Confirmed 54-45, right leaning.
• Anthony Kennedy - third choice nominee of Reagan after Bork was defeated, confirmed 97-0. Generally but not reliably conservative (swing Justice).
• Clarence Thomas - most controversial confirmation hearings in recent history. Only a ‘qualified’ rating from ABA, and an appearance of Anita Hill led to almost the narrowest possible confirmation vote of 52-48. Right leaning.
• Ruth Bader Ginsburg - second women Justice to be appointed after Sandra Day O’Connor. Her voting record has characterised her as a moderate liberal, with a confirmation vote of 96-3.
• Stephen Breyer - appointed by Clinton and confirmed by Senate 87-9, Left leaning.
• Samuel Alito - appointed by George W Bush, Right leaning.
• Sonia Sotomayor - confirmed 68-31, with only 10 Republicans voting to support her, left leaning.
• Elena Kagan - first non judge to be confirmed, with a vote of 63-37. Left leaning.

Question 15

Describe membership of the Supreme Court

Answer 15

• 9 members; 1 Chief Justice and 8 associate judges
• The number is fixed by Congress, hasn’t been changed since 1869
• Members are appointed by the President and confirmed by the Senate by a simple majority
• Hold office for life ‘during good behaviour’, therefore they must be impeached, tried and removed by Congress; or else only removable by retirement or death.

Question 16

What are the four main pools of recruitment, for the Supreme Court presidential nominations?

Answer 16

• The federal appeals court (eg. Sonia Sotomayor)
• The state courts (e.g. Sandra Day O’Connor, retired in 2006)
• The executive branch (e.g. Elena Kagan)
• Academia (e.g. Elena Kagan)
• Senatorial courtesy - a powerful tradition for Justice recommendation. The senators from the state in which the vacancy occurs can make the decision of who will be the replacement.

Question 17

How many Supreme Court nominees has the Senate rejected?

Answer 17

12 nominees since 1789, the most recent being Robert Bork in 1987.

Question 18

Why was Robert Bork’s nomination rejected?

Answer 18

• He was appointed by President Reagan in 1987.
• As a very right winged ideologist, he wanted to roll back civil rights decisions made by previous courts.
• His nomination was opposed by civil rights groups including ACLU, TV ads attacked him as extremist as he even indicated he wanted to reverse Roe v Wade.
• Rejected by vote if 42-58

Question 19

How many judges have been impeached?

Answer 19

Only one - Samuel Chase

Question 20

Who is referred to as the ‘swing justice’?

Answer 20

Anthony Kennedy, his constitutional interpretation is harder to classify.

Question 21

Quote by former Chief Justice Charles Evans Hughes

Answer 21

“We are under a constitution, but the constitution is what the judges say it is”.

Question 22

What is the importance of the due process of law?

Answer 22

It has enabled the court to review and strike down a wide range of state legislation (as they can also violate the rights of individual citizens).

Due process of law can either mean the requirement that the substance of the law be administered fairly, reasonably and constitutionally or the requirement that the process of the law must be fair.

Question 23

Give an example of the Courts check on congressional power

Answer 23

United States v Lopez (1995):

The court declared unconstitutional the 1999 Gun-Free School Zones Act, stating that congress had exceeded its power under article 1.8 of the constitution.
This case was one that also had clear implications for the scope of federal government power over state and local jurisdictions.

Question 24

Give an example of the Courts check on presidential power

Answer 24

Hamdan v Rumsfeld (2006):

The court declared the military commissions set up by the President George W. Bush to try Guantanamo Bay detainees to be unconstitutional.

Question 25

What checks exist on the court, besides those of the congress and the president?

Answer 25

• The court has no enforcement powers (e.g. In Brown v BOE, depended on President Eisenhower sending in federal troops to Little Rock high school).
• The court had no initiation power (has to wait for cases to come to them, cannot rule on hypothetical issues).
• Public opinion can act as a check on the Court (e.g. Its decision on abortion rights in 19933).
• Some parts of the constitution are unambiguous and therefore not open to interpretation by the Court.

Question 26

Define: Life tenure

Answer 26

Members of the Supreme Court cannot be removed against their will, other than by death, if they have displayed ‘good behaviour’.

“The people can change Congress, but only God can change the Supreme Court”. - Senator Norris.

Question 27

What are the pros and cons of life tenure?

Answer 27

• FFs intended this so that members remain impartial, cannot be removed due to their rulings
• Sense of continuity, prevents short-lived judgements
• FFs time, life expectancy was much shorter so expected less time serving - this has now changed. During Hamiltons time avg length of service was 8 years, it is now approx 27.
• Same age (and other similar backgrounds) of judges
• Only removable by death means those who are ill can continue, e.g. Chief Justice Rehnquist who’s last few years were spent in SC - not a lot of rulings passed.

Question 28

Give examples of presidents who mistakenly nominated Supreme Court Justices

Answer 28

President Eisenhower appointed Earl Warren. Said it was the biggest mistake of his life as Warren turned out to be a liberal.

Question 29

Who has Trump nominated to replace Antonin Scalia?

Answer 29

Neil Gorsuch.
• Currently served as a judge on the 10th US Circuit court of appeals in Denver.
• Conservative intellectual, only 49 years old. Known for backing the religious rights and seen as very much in the mould of Scalia.

Question 30

Outline Bush v Gore (2000)

Answer 30

Supreme Court overturned judgement of Florida Supreme Court, making Bush the 43rd president.

Question 31

Why can the Supreme Court be described as a legal and political institution?

Answer 31

Legal: interprets the law of the constitution. Features such as judicial independence aim to prevent it becoming a political institution.

• Constrained by precedent and so are reluctant to overturn laws
• Justices may rule against their own moral preference

Political: claimed the power of judicial review (Marbury v Madison), which gives them some influence over US legislation.

• Justices are nominated and confirmed by politicians
• Justices are aware of public opinion and so aren’t completely independent.

Question 32

Arguably, how has the appointment process become more political?

Answer 32

Rather than testing for competence, ideology/judicial philosophy is tested. This is arguably the case of Bork’s rejection.

For instance, both Obamas successful nominations only received a handful of votes from republicans, despite having the necessary qualifications. Therefore Republicans were also considering their ideological perspective, eventhough ABA rated “well qualified”.

Question 33

Why are some of the Roberts Court’s decisions seen as more political than others?

Answer 33

The Roberts court have decided on more cases with a 5-4 vote (22% of cases) than any other in USA history.
This suggests the Supreme Court has become too politicised, as the Democratic and Republican Party have grown to be more distinct this is now evident within the Supreme Court.
5-4 votes such as in Bush v Gore, lacks the legitimacy of a unanimous verdict, undermining SC authority. It’s approval rating has even decreased over time due to politicisation.

Question 34

How would the two different philosophies view the decision in Roe v Wade?

Answer 34

Strict constructionists - The Constitution says nothing about a right to privacy therefore it does not protect abortion rights.

Loose constructionists - The due process clause protects ‘life, liberty or property’ and privacy is essential to liberty.

Question 35

What are the arguments in favour of strict constructionism?

Answer 35

• The FFs deliberately created a difficult amending process so unelected judges should not be making their own changes.
• More objective approach, based upon original understanding of the text.
• Ensures decisions are more consistent and predictable, based on fixed text.
• “A ‘living constitution’ is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please” - Thomas Jefferson.

Question 36

What are the arguments in favour of loose constructionism?

Answer 36

• FFs deliberately used vague language, suggesting they intended the constitution’s meaning to evolve over time.
• Justices are not historians, in some cases there is no sufficient, clear evidence for how the text was originally interpreted.
• Hard to apply the original meaning of the Constitution to radical new developments in society, such as new technology or the Internet.

Question 37

Quote by Antonin Scalia (about strict constructionist philosophy)

Answer 37

“My constitution is a very flexible constitution. You want a right to abortion? Create it the way all rights are created in a democracy, pass a law.”

• Can be used against the argument that strict constructionists are inflexible.

Question 38

Quote by John Paul Stevens

Answer 38

“The court interprets a never-changing constitution for an ever-changing society”.

Question 39

What are the 6 possible factors which shape the decisions made by the court?

Answer 39

1. Stare decisis - the principle that court rulings should follow past precedent, unless there is due cause not to.
2. Judicial philosophy
3. Implied rights (e.g. Right to privacy) are not specifically stated in the constitution so remain subjective and are left for the courts to decide.
4. Public opinion - Justices are humans and will be aware of public opinion, e.g. Some believe the Gregg v Georgia case was affected by public opinion outrage over the Furman v Georgia decision.
5. International sources/laws - e.g. In the Texas v Lawrence case, Justices looked at English Law and a 1981 judgement by the ECHR.
6. Personal experiences - some argue that Justice Thomas was a lone dissent in the Virginia v Black case due to his experience as an African-American.

Question 40

What is ‘Court packing’?

Answer 40

An unsuccessful attempt by President Franklin D. Roosevelt in 1937 to appoint up to six additional Justices to the Supreme Court, which had invalidated a number of his New Deal laws.

Question 41

What factors suggest that the Supreme Court has become an imperial judiciary?

Answer 41

• Judicial review means that the constitution means what the court says it means.
• Almost no area of public policy is immune to constitutional challenge.
• They have demonstrated and increased willingness of Justices to stroke down state and federal legislation.

Question 42

What is meant by the term ‘Krytocracy’

Answer 42

Government by judges.

Question 43

In what ways is the independence of the Supreme Court protected?

Answer 43

• Separation of powers means that the Supreme Courts function is solely vested in the court.
• Justices are appointed not elected.
• Nomination by President and confirmation by Senate ensures that no one branch has major influence on the court.
• Justices’ salaries are not affected by judgements.
• Life time tenure.
• Impeachment is the responsibility of both houses, making politically motivated impeachment unsuccessful.