The Supreme Court
The nature and role of the supreme court
The US SC is at top of judiciary, final say over legal matters
constitutio Constitution says judges appointed by president and
n and the confirmed by senate simple majority
Supreme Once appointed, hold office for life, can only be removed by
court impeachment
House impeaches with simple majority and then senate
trials justice, 2/3 needed in senate
No SC judge ever been impeachment Abe Fortas resigned SC 1968 instead of
facing impeachment
1789 – Judiciary act, congress set up system of lower federal courts
Below SC – 13 courts of appeals – circuit courts and below those are 94 trial courts
known as district courts
Once case decided at district courts, its appeal to one of the circuit courts and
then to US SC court
Case also can arrive at US SC from state supreme courts if questions involving
state laws or governments are raised
SC only hears cases that are of major constitutional significance
Only the SC can judge whether the state law was unconstitutional or not.
Indeed this overall power connects the nation; rather than allow each state to
go its own way in economic and social affairs.
SCOTUS can hear cases in the first instance, without going through the lower
courts, if: case involves public ministers, two or more states, citizens in different
states or the USA.
The SC hears only those cases it wishes to hear. There is no automatic
right to have one’s case heard before the US Supreme Court. It receives
7000-8000 cases a year
The SC rejects over 96% of cases that seek to be heard there. It hears
only those that it believes are of major constitutional significance.
The 9 members of SC, one chief justice and 8 associate judges
independe Number fixed since 1869, when SC in session, justices sit along bench at front of
nt nature chamber
of the Powers of chief justice are the same but has the opportunity to set tone of the
supreme court
court John Roberts – current chief justice - 2005 Bush appointed
Trump appointed – Neil Gorsuch, Brett Cavanagh, Amy Coney Barret
Why is the current court called the Roberts Court? One Chief Justice whose
name is name denotes an era of the Court’s history e.g.: Warren Court.
How does the Chief Justice get their position? The Chief Justice, like all other
federal judges, is nominated by the President of the United States and confirmed
to sit on the Court by the Senate.
Key terms Briefs – written arguments
Oral argument – delivered by each side, only 30 minutes and justices can
interrupt with questions.
Majority opinion – the decision of the majority of the justices.
Dissenting Opinion – issued by justices who disagreed with the majority decision
and explaining why.
Concurring Opinion- one or more justices may be on the majority side but
disagree with the reasoning behind the decision, this opinion explains their
position.
How each Justices appointed for life
point is Vacancies are only available if a justice dies, retires or is impeached.
meant to A justice’s salaries cannot be lowered during their time in office.
ensure Senate must approve presidential nominees to the SC.
judicial Separation of Power
independe American Bar Association – an interest group made up of professional lawyers –
nce rates the suitability of justices nominated.
Marbury v. Madison 1803
, ‘It is emphatically the province and duty of the of the judicial department to say
what the law is.’
Fletcher v. Peck 1810
Judicial Review applies to state law as well as federal law
Factors Article 3, congress has power to change composition of SC, remained 9 members
that since 1869. Consistency of 9 justices has prevented other branches attempting to
influence fill court with allies.
independe Congress retains power to alter composition of SC, can undermine independence
nce by increasing number of politicised judges. Roosevelt considered increasing the
size in 1930’s to overcome opposition to his New Deal legislation, was frustrated
when congress declined to cooperate.
Article 3, once appointed, justice is guaranteed role for life and cannot be
dismissed. Salary also protected; other bodies cannot use salary as leverage.
Allows autonomy and independence to make fair judgements.
Justices can be removed via an impeachment process. House = majority, senate =
2/3 majority. Can be used as a political weapon. No impeachment of a justice has
ever occurred.
Separation of powers grants SC constitutional independence. Judicial review also
court to check power of president and congress.
SC lacks enforcement powers. Brown v Board of Education of Topeka (1954)
dictated that southern schools should desegregate with ‘all deliberate speed’, in
1957, Governor of Faubus of Arkansas used the local militia to forcibly prevent
black children from entering a high school, only on the instruction of President
Eisenhower that federal troops allowed black children to enter the school.
American Bar Association, ABA, rates suitability of the nominees and their
understanding of law and the constitution. provides non-political quality control.
Independence and neutrality of ABA recently questioned. Professor Maya Sen,
2015. Research suggested that female and minority judicial nominees are more
likely to receive lower ratings that white males, even after controlling for
education, experience and partisanship. Clarence Thomas – only deemed
qualified, treatment could be seen as an example of this bias.
Appointed for life, sometimes they have ‘disappointed’ their political patrons who
originally proposed and voted them to the post. All SC justices are nominated by
the president and then confirmed by a simple majority vote in the senate. Elected
politicians at hear of choosing composition of court.
The Marbury V Madison 1803 and Fletcher V Peck 1810
judicial Judicial review is power of SC to declare Acts of Congress or actions of executive
review or actions of state governments as unconstitutional
process 1803 the SC found the power, first case SC declared an act of congress as
unconstitutional
Fletcher V Peck, the SC first declared a state law unconstitutional
By judicial review, the court can update the meaning of the constitution
Court decides 8th amendment meaning ‘cruel and unusual punishments’ and
decided if the 1st amendment ‘freedom of speech’ applies to internet
SC involved itself in civil ights and liberties – gives the court political importance
Deals with key political issues e.g. political parties and elections e.g. its been said
that the 2 main parties are separated only by the issue of abortion and the SC
decides on this issue
Political importance - Bush V Gore 2000, SC ruled that the manual recount scheme
devised by the Florida state SC was unconstitutional as it violated the ‘equal
protection’ clause of 14th amendment
Trump V Hawaii 2018 – ruled Trumps executive order was constitutional
Court decisions can also have effect of law e.g. 1973 Roe V Wade was very
powerful
Appointme 1. Vacancy occurs through voluntary retirement, death or impeachment
nt process 2. President instigates search for nominees and interviews candidates
, (not in 3. President announces nominee
exam) 4. The senate judiciary committee holds a confirmation hearing on the nominee and
makes vote
5. Nomination is debated and voted on by full senate, simply majority required
Trump lucky – nominated 3 whilst carter appointed none
Important appointment
President commissions search for candidates, uses different sources e.g. senior
white house aides top officials in justice departments
Increasingly lobby groups e.g. federalist society (conservative) and American
constitution society (progressive) have played roles in suggesting nominations
The confirmation process – nominee appears before senate judiciary committee,
hearings held, witnesses close to nominee, committee then votes on whether to
recommended to senate
7-7 Clarence Thomas vote
Reagan Robert Bork was most recent rejection
Clarence Thomas was dominated by accusations of sexual assault from Anita Hill
2016, Scalia died, Obama nominated moderate Garland but senate republicans
denied to hear nomination
2018 – Brett Kavanaugh – sexual assault allegations from high school, 50-48 in
senate
RBG died, replaced by ACB conservative
The Supreme Court and Public Policy
The role of FF wanted to keep judiciary independent, free from political pressure so judges
judicial decided cases on legal merit this is why they have life tenure and congress
activism prohibited from reducing judicial salaries
When SC makes controversial decisions, political decisions, there are accusations
of political activism e.g. Marbury V Madison
Tend to be associated with liberal/loose constructionism, wants reform of US
society
Earl Warren Chief Justice in 1950s and 60s moved along black civil rights and
rights of arrested people
Judicial activism sees court as equal partner with the legislative and executive
branches of government
Case of liberal judicial activism:
Brown V Board of education 1954 – outlawed segregated schools
Roe V Wade 1973
Obergefell V Hodges 2015 – created new policy legalising same sex marriage
Case of conservative judicial activism
DC V Heller 2008 – extended rights of 2nd amendment to include individual rights
to bear arms for reasons unconnected to militia
Bush V Gore 2000 – awarded the presidency to George W Bush
Arguments that USA now has imperial judiciary – too powerful and impact public
policy
People label judicial activism as decisions of the SC they disapprove off
Judicial Court when its more inclined to accept views and actions of elected officials
restraint Inclined to leave things as they are and defer to current laws
The court exhibiting judicial restraint puts importance on judicial precedence
Stare decisis – a legal principle that judges should look to past precedents as a
guide whenever policy – let the decision stand
Liberal judicial restraint
Whole women’s health V Hellerstedt 2016 – continues Roe V Wade
Conservative judicial restraint
Continual defence of executive e.g. Bucklew V Precythe 2019 followed recent
precedents and ruled prisoner should be executed
Judicial restrain sees court defer to legislative and executive branches as they are
directly accountable to voters, these judges are also less likely to declare acts of
congress and state legislatures unconstitutional
Criticism Judicial restraint
of judicial Narrow focus on original text limits meaning and interpretations of a document
