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26 Cards in this Set
- Front
- Back
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THE SUPREME COURT |
Membership of the court: -theres 9 members of the SC: 1 chief justice, 8 associate judges -the no. is fixed by congress and has remained unchanged since 1869 -members are appointed by the president -they are subject to confirmation by the senate by a simple majority -they hold office for life 'during good behaviour' (Article III, Section 1 of the Constitution), meaning they can be impeached, tired and removed from office by congress; otherwise justices leave the court only by voluntary retirement or death |
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Appointment process: 1. the president must wait for a vacancy to occur: on average about once every 2 years, though Carter (1977-81) made no appointments and no vacancies occurred between 1994 and 2005 2. the president's closest aides being the search for suitable candidates 3. a shortlist is made and candidates are subject to a detailed interview and FBI background checks |
4. the president announces the nominee at a public gathering at the white house 5. the American Bar Association (ABA) traditionally offered a professional rating of the nominee 6. the nominee (plus other witnesses) appears before a hearing at the senate judiciary committee 7. the senate judiciary committee votes on whether or not to recumbent confirmation |
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8. the nomination is debated on the floor of the senate 9. a final vote is taken - a simple majority is required for confirmation |
When the president is looking for a new member of the SC he finds 4 main things: 1. the federal appeals court (e.g. Sonia Sotomayor) 2. the state courts (e.g. Sandra Day O'Connor, 1981-2006) 3. the executive branch (e.g. Elena Kagan) 4. academia (e.g. Elena Kagan) |
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8 of the current members of the court (2013) have previously serves as judges of the federal appeals court. Kagan previously served as solicitor general in the justice department and as dean of harvard Law school |
the senate rejected 12 SC nominees since 1789, the most recent being Robert Bork in 1987. Before that president Nixon lost 2 nominees in as many years - Clement Haynsworth (45-55) in 1969 and Harrold Carswell (45-51) in 1970 |
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philosophy of justices: Its often suggested presidents look for justices who share their judicial philosophy. So justices are classified as to whether they're 'liberals' or 'conservatives' or whether they're 'loose constructionists' and 'strict constructionists' |
loose constructionists -> a justice of the SC who interprets the constitution in a loose or liberal fashion strict constructionists -> a justice of the SC who interprets the constitution in a strict, literal or conservative fashion |
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Classification of SC justices: classification - ideology - characteristics - party - examples 1. loose constructionists - liberal - read things into the constitution; favour federal gov. power - tend to be appointed by dem president - Ginsburg, Breyer, Sotomayor, Kagan 2. strict constructionists - conservatives - strict/literal interpretation of the constitution; favour states' rights - tend to be appointed by rep. presidents - Roberts, Scalia, Thomas, Alito |
BUT theres exceptions, president George H. W. bush didn't realise when he appointed David Souter to the court in 1990 that he was appointing one of its most liberal members. Other justices like Anthony Kennedy, much less easy to clarify <- they're referred to as swing justices |
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The power of judicial review: Judicial review -> power of SC to declare acts of congress, or actions of the executive -or acts or actions of state gov.-unconstitutional, and thereby null and void |
Judicial review = not mentioned in constitution. Could be argued court found power for itself in 1803 case of Marbury v. Madison. < this was the first time SC declared act of congress unconstitutional |
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judicial restraint-> an approach to judicial decision making which holds that a judge should defer to the legislative and executive branches and should put great stress on the precedent established in the previous court decisions |
judicial activism -> an approach to judicial decision making which holds that a judge should use his/her position to promote desirable social ends |
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Usage: Since 1803, SC has used this power a lot - at times sparingly (judicial restraint) but at times far more frequently (periods of judicial activism). |
By using its power of judicial review, the court can update the meaning of the words of the constitution, most of which were written over 2 centuries ago. So they will decide what the phrase in the 8th Amendment (written in 1971) forbidding 'cruel and unusual punishments' means today. Likewise, they'll decide whether the 1st Amendment right of 'freedom of speech' applies to the internet. |
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strict constitutionalists tend to favour judicial restraint loose constructionists tend to favour judicial activism |
Constitutional basis: When the constitution was written, there was concerns over the federal gov. giving too much power over the states and individuals. It wasn't until passage of 14th amendment in 1868 that the constitution explicitly began to restrict action that states could take against individual citizens. |
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This was done through 2 provisions of this amendment - the equal protection clause and the due process clause. The courts use of due process provision of the 14th amendment - preventing states from depriving persons of 'life, liberty, or property without due process of law' - has enabled the court to review and strike down a wide range of state legislations |
due process-> (of law) can mean either (1) substantive due process; the requirement that the substance of the law be administered fairly, reasonably and constitutionally; OR (2) procedural due process; the requirement that the process of the law must be fair |
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The courts and the protection of rights and liberties: through its power of judicial review, the SC interprets the meaning of the constitution and thereby protects the fundamental rights and liberties of individual americans |
1st amendment: freedom of religion: -Lee v. Weisman (1992): the court declared prayer at public (i.e. state) school graduation ceremonies unconstitutional -Zelman v. Simmons-Harris (2002): the court upheld Ohio's so-called 'school voucher' programme as being neutral in terms of religion |
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1st amendment: freedom of speech and expression: -Texas v. Johnson (1989): a texas state law forbidding the burning of the US flag was declared unconstitutional by the court. (president George H. W Bush described the court's decision as 'wrong, dead wrong') |
-Citizens United v. Federal Election Commission (2010): the court ruled that in terms of rights of political speech (and therefore making financial donations to political campaigns), business corporations have the same rights as individuals, thereby overturning key provisions of the 2002 Bipartisan campaign reform act. |
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-Snyder v. Phelps (2011): the court upheld the right of a fringe church group to stage anti-gay protests at military funerals |
2nd amendment: right to bear arms: -United States v. Lopez (1995): the court declared unconstitutional the 1990 Fun-Free School Zones Act, stating that congress had exceeded its power under Article I, Section 8 of the constitution. This case was one that also had clear implications for the scope of federal gov. power over state and local jurisdictions |
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-District of Columbia v. Heller (2008): the court declared unconstitutional a law passed by the district of columbia in 1976 banning the ownership of handguns and requiring shotguns and rifles to be kept unloaded and either disassembled or trigger locked. the court stated for the first time, that in its interpretation, the 2nd Amendment right to 'keep and bear arms' is an individual, rather than merely a collective right |
5th amendment: right to silence: -Miranda c. Arizona (1966): the court interpreted the 5th amendment right to remain silent as extending to the right to be reminded of that right when arrested -Dickerson v. United States (2000): the court upheld the right of arrested persons to be read their 'Miranda rights' |
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8th amendment: capital punishment: -Furman v. Georgia (1972): the court decided that the death penalty, as then imposed, was a 'cruel and unusual punishment' and thereby violated the 8th amendment. the consequences of this cased included more widespread use of lethal injections and 2 stage trials, in which during 2nd stage, mitigating circumstances are considered before sentence = decided |
-Atkins v. Virginia (2002): the court ruled that the execution of mentally retarded criminals = unconstitutional -Roper v. Simmons (2005): the court ruled it was unconstitutional to sentence anyone to death for a crime they committed when younger than 18 |
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-Base v. Rees (2008): the court decided that lethal injection -the method used by federal gov. and 35 states to execute criminals - did not violate 8th amendment ban on 'cruel and unusual punishment' |
14th amendment: rights of racial minorities: -Brown v. Board of Education of Topeka (1954): court declared law of state of Kansas to be unconstitutional because it broke the 'equal protection' clause of the 14th amendment. It led to desegregation of schools across USA, especially in the deep south. 'Separate educational facilities are inherently unequal', declared the court, overturning its 1896 ruling of 'separate but equal' |
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-Gratz v. Bollinger (2003): court ruled that the uni of Michigan's af ac based undergraduate admissions programme = unconstitutional because it was too 'mechanistic' -Parents Involved in Community Schools Inv. v. Seattle School District No. 1 (2007): court declared = unconstitutional to assign students to public (i.e state) schools solely for purpose of achieving racial balance |
-Fisher v. Uni of texas (2013): court ordered lower courts to excercise 'strict scrutiny' of uni admissions procedures that included race as one of the selection criteria. Many saw this as a veiled attack on af ac programmes in this area of American life |
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14th amendment: abortion rights: - Roe v. Wade (1973): court struck down a texas state law forbidding abortion. It interpreted 14th amendment right of 'liberty' to include 'freedom of personal choice in matters of marriage and family life' and held that this right 'necessarily includes the right of a woman to decide whether or not to terminate her pregnancy'. Phrase 'personal choice' gives rise to those who support abortion rights calling themselves 'pro choice' |
-Planned Parenthood of Southeastern Pennsylvania v. Casey (1992): the court upheld a Pennsylvania state law that required a married woman seeking an abortion to receive counselling on the risks and alternatives and to wait 24 hours after receiving counselling. Women under 18 also had to have parental consent for abortion. BUT the court struck down a requirement in the Pennsylvania state law that married women should notify their suppose before getting an abortion |
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-Gonzales v. Carhart (2007): court upheld the partial birth abortion ban act passed by congress in 2003. < was first time court declared that a specific abortion procedure could be banned and made no exception for health of woman, although it did provide an exception if life of mother was threatened |
Checks on congressional power: -United States v. Lopez (1995): court declared unconstitutional the 1990 gun free school zones act, stating that congress had exceeded its power under article I, section 8 of the constitution. This case = one that had clear implications for scope of federal gov. power over state and local jurisdictions |
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-National Federation of Independent Business v. Sebelius (2012): court ruled that the 'individual mandate' of the affordable care act (Obamacare) couldn't be legislated by congress under commerce clause of article I of the constitution, but could be allowed under congress' power under same article ' to lay and collect taxes' |
checks on presidential power: -United states v. Richard Nixon (1974): the court declared president nixon's refusal to hand over the white house tapes to be unconstitutional -William Jefferson Clinton v. Paula Corbin Jones (1997): the court declared president Clinton's claim of immunity to prosecution in a sexual harassment case to be unconstitutional |
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-Hamdan v. Rumsfeld (2006): the court declared military commissions set up by president George W Bush to try Guantanamo Bay detainees to be unconstitutional |
CHECKS ON COURT: Checks by congress: - the senate confirms all SC appointment -the House can impeach justices and senate, try them and if found guilty by two thirds majority, they can be removed from office -congress can alter no. of justices on the court |
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Congress can initiate constitutional amendments, thereby seeking to overturn judgements in the court with which it disagrees. e.g. recent (though unsuccessful) attempts concerning flag desecration, school prayers, abortion rights and congressional term limits |
Checks by the president: - the president nominates all justices - he can decide either to throw his political weight behind the court (e.g. George W. Bush over Zelman v. Simmons-Harris in 2002) or to criticise it openly (e.g. George H. W. Bush over Texas v. Johnson in 1989, and Obama over Citizens United v. Federal Election Commission in 2010) - he as power of pardon |
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Other checks: -the court has no enforcement powers (e.g. Brown v. Board of Education of Topeka decision it was dependent upon president Eisenhower sending in federal troops to desegregate the Little Rock Central High School in 1957) -the court has no initiation power. It has to wait for cases to come before it. It can't rule on hypothetical issues |
-public opinion can be a check on the court (e.g. the Planned Parenthood of Southeastern Pennsylvania v. Casey decision on abortion rights in 1992) -some parts of the constitutional are unambiguous and therefore not open to interpretation by the court |
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-the SC may check itself by reversing earlier decisions. For e.g. having ruled in 1989 (Stanford v. Kentucky) that states could execute 16 and 17 y/o offenders, the court ruled in 2005 (Roper v. Simmons) that such executions = unconstitutional. In 2000 (Stenberg v. Carhart), the court declared a Nebraska state law prohibiting late term abortions to be unconstitutional, but in 2007 (Gonzales v. Carhart) it upheld an almost identical federal law |
Does the SC have too much power? YES: - judicial review - not in the constitution but court gave itself this power - the justices are unelected, unaccountable and serve for life - the court's power to shape important areas such as gun control, abortion, freedom of speech and religion, campaign finance and the death penalty = shows great power |
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NO: -framers of constitution regarded it as 'least dangerous branch' and so claimed it was less rigorous in power compared to other 2 branches -the court isn't too powerful, its just powerful - making the court elected or limiting its members length of service would not make it any less powerful, even if either of these were desirable or practical options, which they're not |
END OF UNIT!!! |
