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Description
Flashcards by Bethany Fieldhouse, updated more than 1 year ago
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Created by Bethany Fieldhouse
over 8 years ago
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| Question | Answer |
| How are Supreme Court judges appointed, and why is the process so politically controversial? | 1) President nominates a candidate 2) SENATE JUDICIARY COMMITTEE holds hearing to assess the suitability of the candidate, with a range of interested partise having an opportunity to make a contribution to the process 3) The full Senate votes, with a simple majority required for confirmation SC can (and has) used it power of constitutional interpretation to shape public policy = everyone has an interest in the views, attitudes and values of people who are nominated However, because judges are appointed for life and life-expectancy is growing, anyone who is appointed may be helping to shape public policy for 30+ years |
| Why is the issue of the composition of the Supreme Court so controversial? | - Exercises so much power in modern day America. Constitution = gives the SC effective control over many aspects of public policy - life tenure of justices = president's influence can persist after many years after he has left office (e.g. Bush = Clarence Thomas) - recent polarisation of justices into conservative and liberal blocs = appointment process has become highly politicised, each nominated accompanied by intense lobbying (for and against) - desire for minority representation eg ELANA KAGAN, the 3rd Jewish justice - big part of her nomination |
| Does the Supreme Court have too much power for an unelected body? | - Jud rev= immense power over the constitution, judges become arbiters over public policy (desegregation - Brown v Topeka, and abortion - Roe v Wade) - debate between conservatives (too powerful and liberals (expansion is necessary to preserve constitution's values) CONSERVATIVE ARGUMENTS (YES): - unelected branch = should only overrule legislation if it unambiguously violates the constitution - legislative deference - jud rev not explicitly stated in constitution - can undermine own legitimacy by overriding legis & deciding a particular political viewpoint "constitutional" eg striking down of New Deal in 1930s - judges legal experts, not social policy experts = social policy is ineffective LIBERAL ARGUMENTS (NO): - constitution needs to be 'living' to remain relevant - separation of powers = contentious legislation not likely to pass - Plessy v Ferguson showed courts cant only overturn the most flagrant breaches - checks in place (congress can initiate constitutional amnds) |
| In what ways is the independence of the Supreme Court Justices protected? | - separation of powers: judicial function is vested solely in the court so (IN PRINCIPLE) is free from political interference in its decision making - justices are appointed not elected - two stage appointment process (nomination by president, confirmation by senate) - reduces possibility of overtly political appointments - justices' salaries cannot be reduced during their period of office - justices have lifetime tenure, can only be removed by impeachment - impeachment is the responsibility of both houses of Congress, making politically motivated impeachment less likely to succeed |
| 'Judicial activism cannot be justified'. Discuss. - 'Judicial activism' = lacks precise definition, often used as a term of negative term - 'the overriding by the Supreme Court of a state or Congressional law, or the reversal of one of the court's own precedents' | - practised by conservatives or liberals - FEC v CITIZENS UNITED CANNOT BE JUSTIFIED: - vague constitution = no one can claim a definitive knowledge of its meaning (as unelected) court should defer judgements to other branches - unelected, should only overrule flagrant breachs of constitution - judges not experts in social policy - risk eroding authority of courts if justices use jud rev to advance own preferences - authority undermined if court reverses own decisions - federalism = cornerstone of US constitution, in striking down state laws the court is denying the states the right to protect regional ways of life CAN BE JUSTIFIED: - principles of const clear - role of court to protect from dilution from other branches - courts decisions not immune from error, can be reversed if necessary - legislators risk-averse, social change often only achieved by courts taking lead - state laws in particular likely to promote values which have long since ceased to be acceptable |
| To what extent have Supreme Court justices reflected the political views of the presidents who nominated them? | - not politically neutral in the UK sense - eg William Rehnquist active in party politics prior to nomination - eg Elena Kagan served in Clinton's administration - eg Samuel Alito has track record of judgements which identify him as a conservative (eg Gonzalez v Carhart, voted to uphold law restricting abortion) - unsurprising that presidents nominate potential justices whose views are known to correspond to their own - eg BUSH nominated - Samuel Alito and John Roberts as conservatives, lived up in cases such as Gonzalez and Heller ONLY PARTLY REFLECT POLITICAL VIEWS OF THEIR NOMINATOR: - pres take in variety of factors, not just ideology; eg acceptability of the nomination to the Senate (eg Obama, 2016 - not able to nominate a liberal judge) - may carry broadly similar views but not always going to vote identically, eg Scalia and Thomas didn't always vote in the same way (Walker v Texas, Thomas voted with the liberal justices such as Ginsberg) - DAVID SOUTER - nom by Bush as a conservative "home-run" but ended up voting in liberal ways in Roe v Wade and Bush v Gore |
| 'The Supreme Court should interpret the constitution and its amendments by establishing their original meaning when they were adopted'. Discuss. | - Schools of judicial interpretation which are linked by a belief in the importance of the original text: 1) STRICT CONSTRUCTIONISM - emphasises the literal meaning of the texts 2) ORIGINALISM - (eg Scalia) seeks to establish what a 'reasonable' reading contemporary to the adoption would have been FOR: - constitution is law: every other law is 'dead' and doesn't change meaning over time - a statement of fundamental principles - it is objective - 'living constitution' approach makes it subjective to the incumbent judges' values - makes the courts judgements more predictable and stable - amendment process is available if society's values change - rights which judges 'find' in the texts may be seen to lack legitimacy AGAINST: - written in broad terms as the FF themselves envisaged the need for evolution - framers misjudged the amendment process making it too demanding: becomes the responsibility of the courts to bring it up to date - society's values do change eg different from framer's views of 'cruel and unusual punishment' - originalism is not consistent |
| What has been the effect of appointments to the Supreme Court since 2005? | - in recent years, two appointed by Bush (ROBERTS, ALITO) and two by Obama (SOTOMAYOR, KAGAN) - Roberts, Sotomayor and Kagan = ideologically "like-for-like", did not change ideological make up of court - appt of Alito arguably most significant = a solid conservative taking place of 'swing' Sandra Day O'Connor - ROBERTS COURT: some centrist decisions such as BOUMEDIENE v BUSH, but general direction has been to right, particularly in area of rights of corporations eg CITIZENS UNITED and HELLER - Justice Kennedy assumed status of the 'swing justice' |
| 'A political, not a judicial institution'. Discuss this view of the Supreme Court | IS A POLITICAL INSTITUTION: - justices nominated & confirmed by politicians, accepted that a pres will nominate a candidate sympathetic to his agenda - power of jud rev to declare laws and actions of elected branches unconstitutional inevitably gives their role a political element - judicial interpretation cannot be value-free, judicial activism imposes the political values of justices on the constitution - court is used for political ends; lobbied interest groups - justices' decision on which cases to take reflect judgement as to which are important - not in a judicial vacuum; justices are aware of public opinion and likely impact of their decisions NOT A POLITICAL INSTITUTION: - themselves claim to be "neutral umpires", say it is possible to apply constitution in a restrained + non-political way - most cases decided by purely technical and legal considerations - justices constrained by precedent, which they are reluctant to overturn - may rule against their own stated preferences. Kennedy: "The hard fact is that sometimes we must make decisions we do not like" |
| What are the most significant factors in the president's choice of Supreme Court justices? | - IDEOLOGICAL LEANING: eg Bush's nomination of Alito - JUDICIAL CREDENTIALS: eg withdrawal of HARRIET MIERS (Bush's nomination to replace O'Connor), "inadequate" - COMPOSITION OF THE SENATE: president will need to particularly consider reaction of Senate if controlled by opposite party - REPRESENTATION OF DIFFERENT GROUPS: president may want to make the SC more diverse - arguably one of Obama's motives in nominating two female justices, Sotomayor = Latina |
| Explain the factors that limit the power and influence of the Supreme Court | FORMAL RESTRAINTS: - lack of enforcement power, evident in slow pace of desegregation after Brown v Topeka Board - courts decision may be reversed by constitutional amendment - Congress can alter the size of the court or withdraw appellate jurisdiction - no power of initiation INFORMAL RESTRAINTS: - self-imposed reluctance of courts to become involved in some areas, such as foreign policy - court's own precedents - public opinion eg state and federal legislative reaction to the decision in Furman v Georgia was cited in the judgement in Gregg v Georgia as evidence that the death penalty was acceptable to the majority of the US public - political pressure eg Obama's declared expectation that the court will no overrule health care reform |
| What is judicial restraint, and on what grounds has it been criticised? | Judicial restraint = the judicial approach which stresses respect for precedence, and deference to the elected branches of government PROPONENTS: constitution is unclear; no one can claim definitive knowledge of it - as an unelected body, SC should only override its own rulings, or the other branches of government in the most egregious cases of constitutional violation - often associated with strict constructionism and originalism but not always the same: eg decision to support 'Obamacare' in National Federation v Sebelius is an example of judicial restraint, but was opposed by Scalia (an originalist) - should be distinguished from judicial review (the process of case consideration and gives power of ruling other branches to be in breach of constitution) CRITICISMS OF JUDICIAL RESTRAINT - conservative critics: would argue that deference to elected branches may result in serious breaches of constitution (eg Obamacare) being sanctioned |
| Has the Supreme Court become an 'imperial judiciary'? | YES: - judicial review means that the constitution means what the court says it means - almost no area of public policy is immune to constitutional challenge - increased willingness of justices to strike down state and federal legislation means that they have arbiters over a wide range of policy - conservatives may argue that some rights which the courts have established have only a tenuous basis in the constitution (eg Obergefell v Hodges, 14th Amnd) NO: - lacks enforcement power - decisions may be reversed by constitutional amendments - no power of initiation - doesn't get involved in some areas eg foreign policy - necessity to give at least some regard to public opinion and political context - many liberals would argue that the court must intervene to strike down legislation sometimes if basic rights are to be maintained - congress has power to impeach justices and vary size of court - threat of latter was sufficient to prompt the court to change course in 1937 |
| What is judicial review and why is it controversial? | Supreme Court = highest court of appeal in the US JUDICIAL REVIEW = ability of courts to declare state and federal legislation, and actions of state and federal executives, to be unconstitutional. CONTROVERSIAL BECAUSE: - not a part of the constitution - no effective checks in the constitution on the power of the court - enables the court to involve itself in controversial issues - meant that court has an effective veto in several areas of public policy - court has become a "constitutional convention in continuous session" - undermined the legitimacy of the court and led to a perpetual debate over its role |
| To what extent has the Roberts Court witnessed a revival of conservative activism? | 'Conservative activism' - the overturning of state or congressional legislation by the court, or the reversal of its own precedents, with the consequence of advancing conservative values HAS BEEN CONSERVATIVE AND/OR ACTIVIST: - replacement of O'Connor with Alito = now a majority of conservative-leaning justices on the court - number of key decisions: Citizens United and Heller, have overturned congressional and state legislation, and achieved conservative goals of weakening campaign finance regulation and strengthening rights of gun owners NOT BEEN CONSERVATIVE AND/OR ACTIVIST: - in arguably its most consequential decision, National Federation v Sebelius, chief justice voted with liberal block and endorsed ACA - Kennedy is a 'swing' justice who has sided with both sides - some controversial first amendment cases (eg Snyder v Phelps) have been supported by majority of both conservative and liberal justices - in some civil liberties and sentencing cases eg Hamdan, Boumediene - more liberal values have been advanced |
| Why has the process for the appointment of Supreme Court justices been criticised? | 1) ROLE OF PRESIDENT: gives pres opportunity to influence public policy for years after he leaves office 2) ROLE OF SENATE: senate votes are increasingly along party lines, eg Senate hearing of Thomas was preoccupied by his public persona 3) INVOLVEMENT OF INTEREST GROUPS: senate has become the subject of intense lobbying by conservative and liberal interest groups which run ad campaigns similar to those for candidates for elected office 4) FUTILITY: particularly after rejection of Bork, nominees have spoken almost exclusively in generalities and declined to comment on any issue which can be claimed to be potentially the subject of a future case |
| 'The power of the Supreme Court cannot be justified in a democracy'. Discuss. | JUDICIAL REVIEW: not explicitly detailed in the constitution, gives the SC power to declare state and congressional legislation and executive actions unconstitutional redefining constitution. Given justices an effective veto over many areas of public policy, eg campaign finance and abortion UNJUSTIFIED: - an unelected (unaccountable and unremovable) body is checking the elected branches on significant issues - judicial review not in the constitution formal checks are weak - justices are reading their own values - the politicised appointment process, the existence of ideological blocs suggest the libs & conservatives on the court pursuing political agendas - justices are experts in law, not social policy, and consequently justice-made social policy is likely to be ineffective JUSTIFIED: - power of court need to check other branches - has an important role in protecting minority rights - risk-averse politicians means that archaic legislation unlikely to be repealed - there are checks: Congress - constitutional amendments - difficulty of amending = jud rev is necessary |
| What is the 'living constitution' approach to judicial interpretation and why has it been criticised? | 'Living constitution' approach: constitution was written in broad and flexible terms to enable it to be adapted to the needs of a changing society (Warren: "evolving standards of decency") - Contrasts with originalist views CRITICISED BECAUSE: - if justices 'legislate from the bench' the court may appear politicised - freedom to read values into constitution may mean justices impose their own - unelected and unaccountable = undermines legitimacy to be seen to be advancing its own agenda - 'read in' rights may be seen to lack legitimacy and cause dissent - every other law is 'dead' and the constitution is supposed to embody enduring values |
| To what extent has the Supreme Court advanced conservative values since 2005? | Since 2005, 4 new judges joined the court: 3 like for like - ROBERTS, KAGAN, SOTOMAYOR - did not affect ideological balance 1 moved balance towards right - ALITO (Gave conservatives a 5-4 majority) CASES WHICH HAVE ADVANCED CONSERVATIVE VALUES: - Citizens United v FEC - Heller v McDonald - gun rights - Shelby County v Holder - states' exemption from Voting Rights Act - Burwell v Hobby Lobby - religious rights of businesses CASES WHICH HAVE NOT ADVANCED CONSERVATIVE VALUES: - NFIB v Sebelius - individual mandate of ACA - Hamdan v Rumsfeld - rights of terrorist suspects - US v Windsor - same sex marriage - Hollingsworth v Perry - same sex marriage CASES IN WHICH LIBERALS AND CONSERVATIVES HAVE VOTED IN THE SAME WAY: - Snyder v Phelps - freedom of expression - Brown v Plata - prisoners rights - Riley v California - cell phones' protection from unreasonable searches |
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