Supreme Court

The role of the judiciary

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Responsibility of judges to adjudicate to do this, they resolve

disputes that cant be settled without legal action
They reach conclusions according to a set of rules, such as referring
to previous judgments
Philosophy of the justices
Strict constructionists
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A justice who interprets the constitution in a strict literal or

conservative fashion
Tends to stress the retention of as much powers as possible by
the governments of the individual states.
They look at the original intent of the Founding Fathers
referred to as originalists
Favor state rights over the power of the fed. Gov. & tend to be
appointed by Republican presidents Chief Justice Roberts
and associate Justices Scalia, Thomas & Alito fall in this
category
Focus on the text of the constitution job of the court is to
derive and apply rules from the words chosen by those who
framed the constitution

Loose constructionists
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A justice of the Supreme Court who interprets the Constitution

in a loose or liberal fashion, 7 who tends to stress the broad
grants of power to the federal government
Currently Justices Ginsburg 7 Breyer fall into this category, as
do Justices Stevens and Souter although both appointed by
Rep. Presidents

Judicial activism

An activist court is one which sees itself as leading the way in

the reform of American society
Court of Warl Warren Activist in the 50s & 60s in decisions
such as Brown V. Board of education Topeka (1954) and
Miranda V. Arizona (1966) trying to move society along in the
areas of black civil rights and the rights of arrested persons
Warren Burger court activist in its Roe V. Wade (1973)
rights of a woman to have an abortion was a constitutionally
protected one

Sees the court as an equal partner with the legislative and

executive branches of government
Activist judges are not inclined to be deferential to the other
branches of government

Judicial restraint

The court when it is more inclined to accept what has gone

before leave things as they are more associated with
justices who are strict constructionists
Importance on what is called stare decisis to stand by what
is decided
Once a matter has been decided in a case forms a precedent
that should not be overturned except under pressing and
changed circumstances
E.g. a womans right to abortion in Roe V. Wade see limits
put on that right but not to overturn the 1973 decision
completely
Judicial restraint court deferential to the legislative and
executive branches of government therefore less likely to
declare acts of Congress or the state legislatures
unconstitutional

Problem with these terms

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Often used judgmentally especially judicial activism

Critics of the court justices are legislating from the bench
Label as judicial activism decisions of the S.C. of which they
disapprove
Call court activist because they disagree with its decisions

Pools of recruitment for justices

Federal appeals court (Sotomayor).
State courts (OConnor)
Executive branch (Kagan).
Academia (Kagan).

Eight current members have previously sat on federal

appeal courts.

Kagan was previously Solicitor general to the Justice

dept and Dean of Harvard Law School.

Senate has rejected 12 SC nominations since 1789:

Recent being Bork in 1987.

What is wrong with the appointment and confirmation?

Accusations of politicization by the President, Senate & buy

the media that cover the nomination & confirmation process
Presidents deny political consideration but political
consideration underlie the choosing of S.C. justices
Presidents are tempted to chose a justice whose political &
judicial and political philosophy reflect their own
E.g. the 2 Clinton appointees hold a liberal position, the
conservative members of the court were appointed by Reagan
& George W. Bush giving presidents the chance to shape the
courts thinking for the next 5-20 yrs.
The senate too policies the confirmation process
The defeat of Robert Bork, one of the most outstanding jurists
and scholar of his generation Dem. Opponents on the Senate
Judiciary Committee mobilized liberal interest groups against
Borks nomination
Another situation Bush nominated another conservative
Clarence Thomas senate didnt focus on his lackluster
qualifications but focused on his conservative philosophy &
sexual harassment allegations
Samuel Alitos nomination saw soft questions thrown at him
from senators from the presidents party
If senate is dominated by the presidents party, president has
party control and can get anyone he wants confirmed by the
senate not a recipe for effective checks and balances
Senators from opposition party look for opportunity to attack
and embarrass the nomine e more interested in scandal,
innuendo & gossip than in competence
Confirmation process is often said to be invasive scrutiny &
cruel and punishing publicity therefore discourages qualified
people from being prepared to be nominated and therefore
hinders the presidents ability to govern
Media also feed on gossip and allegations
With the court so finely balanced between conservatives and
liberals unlikely that the president and senate of wither party
will give up on trying to get its own way

Why are Supreme Court nominations so important?

5 reasons
1. The occur infrequently, on average every 2 years and
sometimes there can be a long period with no vacancies at all

2. Appointments are for life John Roberts can be there for about
20 or even 30 years
3. Only 9 members, so appointing a new one is replacing 1/9th of
the courts membership In the S.C. you need 4 more to be a
majority so its a big deal
4. The courts power of judicial review extraordinary important
and significant power
5. Profoundly affect the lives of ordinary Americans in areas such
as abortion, affirmative action, gun control & freedom of
speech using the power of judicial review
Judicial review

The power of the Supreme Court to declare acts of congress,

or actions of the executive or acts or actions of state
government unconstitutional, and thereby null and void.
The Supreme Court found this power for itself in the 1803 case
Marbury vs. Madison first time the S.C declared an act of
congress unconstitutional
By using its power of judicial review, the court can update the
meaning of the constitution, hence the court decides what the
phrase in the 8th amendment forbidding cruel and unusual
punishment means today
It also decides what the first amendment freedom of speech
applies to the internet
The supreme court has involved itself in a host of political
issues acting as grantor of fundamental civil rights and
liberties S.C has made landmark decisions on issues such as
rights of racial minorities, capital minorities, gun control &
freedom of speech
The political importance of the court is demonstrated in the
case of George W. Bush V. Albert Gore Jr (2000)- S.C. ruled
manual recount scheme devised by the Florida State was
unconstitutional because it violated the equal protection
clause of the 14th amendment
S.C. also ruled that because of time constraints any recount
seeking to meet the December 12 deadline will be
unconstitutional - seen by some to be handing the election to
George W. Bush
The power of judicial review gives the court political
importance but also turns it into a quasi-legislative body
because decisions have almost the same effect of a law
having passed by congress
E.g. Roe V. Wade court stated women have the constitutional
right to an abortion effect was comparable to an abortion
rights law
The court has often been descried as a third house of the
legislature

We need to be aware of the ways in which such decisions

o Enable the court to interpret the constitution
o Turn the court into a political institution
o Give the court a quasi-legislative power

Constitutional basis for the courts actions

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At the time of its ratification, many thought the constitution

provided the new federal government with overly broad
powers that could be used against the states and individuals
The first Congress proposed the Bill of Rights first 10
amendments initially to restrict the powers of the federal
government not state Gov.
E.g. the 1st amendment Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof
14th amendment 1868 constitution explicitly begin to restrict
the actions of states could take against individual citizens
The S.C. relied on 2 provisions of the 14th amendment to
protect individuals rights and liberties
Court frequently employs the amendments equal protection
provision to end school segregation & promote affirmative
action
Although enveloped in complex legal reasoning the court has
used the other important provision of the 14th amendment
the due process clause to incorporate the bill of rights
The use of due process has enabled the court to review and
invalidate a wide range of state legislation
The laws subjected to the courts review have been approved
by a majority of the respective state legislature which, in turn,
was elected by a majority of the states voters

Due Process

The term more fully is due process of law and although no

precise legal definition of the term has been made, it is
understood to refer to the principle of limited government.
There are 2 types of due process referred to by the courts.

Substantive due process demands that the substance of the

law must not be arbitrary, unreasonable or unconstitutional

Procedural due process demands that the process of the law
must be fair

Criticisms of Judicial review

First, the Constitution allows for no such judicial power

Since the adoption of the Constitution, some have argued that

the power of judicial review gives the courts the ability to
impose their own views of the law, without an adequate check
from any other branch of government. Robert Yates, a
delegate to the Constitutional Convention from New York,
argued during the ratification process in the Anti-Federalist
Papers that the courts would use the power of judicial review
loosely to impose their views about the "spirit" of the
Constitution

Political significance of the court

Makes decisions concerning areas that politicians disagree
fundamentally (Abortion, gun control Presidential and
congressional elections).
Power of judicial review has been used to involve its self in a
range of political issues:

Civil rights and civil liberties.

Members of the court are appointed by politicians

(President and then confirmed by Senators).

Appointments to the court can become issues in

presidential elections (as in 2000).

Deemed the manual recount issued by Florida

Supreme Court to be unconstitutional because of a
breech of equal protection clause and was
therefore apparently handing the presidency over
to Bush.

Political significance: Policy Areas

Freedom of religion:

Lee v. Weisman 1992 Declared prayer at state school

graduation unconstitutional (Separation of religion and
education).

Freedom of speech:

Citizen United v. Election Commission 2010 Declared

corporations to have the same rights as individuals
(financial contributions to campaigns) over turning key
elements in the Bipartisan Campaign Reform act.

Right to bear arms:

United state v. Lopez 1995 Unconstitutional 1990

Gun-free school zones act, Congress had exceeded its
power implications for scope of federal power over
state juristictions.

Racial rights:

Brown v. Board of Ed 1954 Declared segregation in

schools unconstitutional Led to widespread
desegregation of schools.

Grratz v. Bollinger 2003 Uni of Michigan affirmative

action under grad admissions = unconstitutional
because too mechanistic.

Abortion rights:

Roe v. Wade 1973 Unconstitutional to prevent a

woman having an abortion infringes liberty which
includes personal choice in matters of family planning.

Gonzales v. Carhart 2007 Upheld partial-birth abortion

ban act, first time a specific abortion procedure could be
banned that had no consideration for woman's health
unless life threatened.

Does the Supreme Court have too much

power?
Checks by Congress:

Senate confirms all appointments.

Power to impeach by Congress.

Congress can initiate constitutional amendments to

effectively overturn Court rulings:

Recent although unsuccessful examples: flag

desecration, abortion, and prayers in state
schools.

Accountability of the court can get this from the fact

that senators confirm appointments and constant threat
of impeachment that hangs over the court justices.

Checks by the president:

Nomination of justices.

Can either throw weight behind court or openly criticise

it.

Power to pardon.

Other checks:

No enforcement powers (Brown v Board only

implemented by Eisenhower sending in troops to Little
Rock in 1957).

Has to wait for a case to come before it cannot review

legislation on a hypothetical basis.

Some parts of the constitution are unambiguous.

Can check itself by reviewing old decisions (However precedence

limits this).