AQA A level Politics - US Judiciary (USSC)

Judicial Review

Judiciary scrutinises actions and legislation of the legislative and executive branches, and has the power to determine whether they are acting within their powers
Decides whether things are compatible with the US constitution
'Found' in Marbury v Madison 1803

Judicial Activism

An approach to judicial review in which a judge is more willing to interpret the meaning of the constitution, to nullify actions or legislation and to overturn precedent

Judicial Restraint

An approach to judicial review under the doctrine of restraint, which urges judges to refrain from deciding legal issues, especially constitutional ones unless absolutely necessary, and to be reluctant to overturn precedent

Loose Constructionism

To view the constitution as a living document which can be interpreted differently overtime as society evolves; links with judicial activism

Strict Constructionism

An advocate of a literal interpretation of the constitution favoured more by conservative justices, limiting judicial review by limiting the amount a justice may interpret the constitution; links with judicial restraint

Judicial Independence

Concept that the judiciary needs to be kept separate from the other institutions/branches of government to truly be politically independent; this prevents improper influence from political branches on the decision of the supreme court based on private or partisan interests

US Supreme Court

Highest court of law in the US established by Article III of the constitution; only certain cases are appealed and taken on my the court - typically 80-100 out of 9000-10,000 submissions, less than 1% of cases making it to the Supreme Court

US Courts of Appeals

Established by Congress to share the huge work-load of cases
13 federal courts just below the Supreme Court divided among 12 geographical regions plus 1 for the federal circuit
These courts hear appeals from decisions of district courts challenging the ruling made from courts within their district/circuit

US District Courts

Established by Congress to share the huge work-load of cases
94 district courts below the US Courts of Appeals divided among 12 geographical regions plus 1 for the federal circuit
These courts hear civil cases and criminal cases

Appointments and Dismissals

Limit the powers of the supreme court as a check on their power by Congress
Justices must be nominated by the President, then the decision must be ratified by a majority in the Senate
Additionally, Congress has the power to impeach a justice

Impeachment Process

Congress can impeach a justice on terms of: treason, bribery, high-crimes, and misdemeanours

The House holds a majority vote on whether a justice should be formally accused and impeached, then the Senate holds a trial to determine whether the justice is guilty, and a vote is held on whether the justice should be removed

Difficulty Enforcing Decisions

The SC relies on other branches of government to enforce the rulings and decisions it makes; for example the court unanimously rules 'separate educational facilities are inherently unequal' in Brown v Board of Education (1954), yet southern states refused to comply (Gov. of Arkansas and President Eisenhower's retaliation to south at Little Rock in '57 to enforce court decision, plus CRA in 1964)

Congress' power to shape the Court

Constitution grants Congress with power to decide the number of districts, cases the court can hear, and the number of justices; the Judiciary Act (1789) requires 6, but doesn't set a limit:
2017 - 9 justices

Inability to Bind Future Courts

Justices, mores ones who favour judicial activism and loose constructionism, say precedent can be overruled if they no longer work, and society largely rejects the ruling in the present day
e.g. Plessy v Ferguson (1896) and Brown v Board of Education (1954)

Compensation for Justices

As declared in Article II of the constitution, Congress nor the executive may diminish the salary of a Supreme Court Justice in any attempt to pressure their decisions, upholding judicial independence

Stage I of the Appointment Process

Vacancy:
A justice must retire, die, or be impeached for a vacancy to open
On average, there is a vacancy every 2 years, and Presidents usually can select 1-2 during their terms
- Nixon was luckier and nominated 4 justices

Stage II of the Appointment Process

Advisement of potential candidates:
President's advisors draw up a shortlist of suitable candidates - though the constitution doesn't actually lay any standard requirements for a justice

Nomination Pool for Justices

Mostly from US Court of Appeals and US Department for Justice
e.g. Trump / Gorsuch from Appeals 2017

Stage III of the Appointment Process

Scrutiny:
FBI does a background check on possible candidates with record checks and interviews, completing a report which is sent to the Senate Judiciary Committee
American Bar Association then rates the nominees on a scale of 'well qualified', 'qualified', and 'not qualified' - rare for a nomination not to be endorsed by ABA, in last 9 nominations, only Clarence was just 'qualified'

Stage IV of the Appointment Process

Confirmation Process:
Senate Judiciary Committee interview nominee and other witnesses (e.g. Anita Hill for Clarence Thomas 1991). Has become more partisan in recent years e.g. Kavanaugh widely politicised in media 2018
Then, Senate holds a vote, requiring a majority vote to be confirmed, process also more partisan. Defeat at this stage is unlikely, but possible (Bork)

Failure of the Bork Nomination

1987; Bork was extremely qualified but extremely conservative - he had criticised the CRA (1964) for breaching states' rights, and criticised the SC decision in Griswold v Connecticut (1965) which enforced the fundamental right to privacy.
Democrats scrutinised him profusely on the Senate Judiciary Committee, grilling his conservative views, Bork gave weak responses; in a 9-5 vote Bork's nomination was sent to the floor for a vote as 'unfavourable' - all Democrats (such as Chair of the Committee Joe Biden) supported this motion, all Republicans did not.
Became known as being 'Borked'. Academics mark this case as being a fundamental change to the process, going from a test of competence to a test of ideology

Appointments based on Ideology

Conservative justices all appointed by Rep. Presidents:
Alito, Roberts, Thomas, Gorsuch, Kavanaugh
Liberal Justices all appointed by Dem. Presidents:
Kagan, Sotomayor, Breyer, RBG

Evidence of the Confirmation Process becoming more partisan

In 1986, Scalia had an 18-0 unanimous vote in the SJC, and was confirmed by the Senate 98-0

In 2018, Kavanaugh had a 11-10 vote in the SJC along party line, and was confirmed 50-48 in the Senate with only 1 Democrat in favour

Clarence Thomas

Associate Justice nominated in 1991 by George H.W. Bush
Conservative

Ruth Bader Ginsberg

Associate Justice nominated in 1993 by Clinton
Liberal

Stephen Breyer

Associate Justice nominated in 1994 by Clinton
Liberal, believes in 'Living Constitution'

John Roberts

Chief Justice nominated in 2005 by G.W. Bush
Conservative

Samuel Alito

Associate Justice nominated 2006 by G.W. Bush
Conservative

Sonia Sotomayor

Associate Justice nominated in 2009 by Obama
Liberal

Elena Kagan

Associate Justice nominated in 2010 by Obama
Liberal

Neil Gorsuch

Associate Justice nominated in 2017 by Trump
Conservative

Brett Kavanaugh

Associate Justice nominated in 2018 by Trump
Conservative

Supreme Court being Strict Constructionist

Schechter v US (1935), NRA struck down over commerce clause (carrying poultry over states)
US v Lopez (1995), the Supreme Court struck down the Gun-Free School Zone Act (1990) to protect 2nd Amendment rights

Supreme Court being Loose Constructionist

Roe v Wade (1973), the Supreme Court voted 7-2 that the 14th amendment gives the constitutional right to privacy, thus protecting a woman's right to privacy if she chooses to have an abortion

Loose constructionists were happy with the ruling because they looked at the Due Process Clause, which protects 'life, liberty, or property' and argue privacy is fundamental to liberty, so it is an implied right by the constitution

Strict Constructionist/Originalists against Roe v Wade (1973)

Argue the constitution does not explicitly say anything about a right to privacy, therefore cannot be used to uphold abortion rights
Originalists say the 14th amendment was a response to former slaves following the civil war, and should be interpreted in that context, not for abortion rights

Arguments in favour of Originalism and Strict Constructionism

- Founding Fathers deliberately created a difficult amendment process to prevent an unelected judiciary regularly making their own changes

- Originalism is a more objective approach; based on original intent and not judges' opinions

- Decisions under originalism are more consistent and predictable, providing more confidence and stability in government and law

Arguments in favour of Loose Constructionism

- Founding Fathers intended for wording to be vague, suggesting they wanted the constitution's interpretation to change and evolve over time to endure for centuries

- Say originalists are just as subjective and inconsistent as they claim loose constructionism to be, as Supreme court Justices are not historians; there is not clear or sufficient enough evidence for how the constitution was interpreted at the time of ratification

- Can the original meaning be applied to radical new developments in society? Such as technology, internet, faster travel etc.

The 2nd Amendment and how it weakens Strict Constructionism/Originalism

It is incredibly vague and had been debated for decades - does it protect the right to form a militia, or for individual rights to gun ownership?

Media Definition of Judicial Activism

Usually meant critically; justices have based their interpretation on personal views, rather than on the constitution

Media Definition of Judicial Restraint

Justices only strike down laws and precedent that is clearly unconstitutional

Warren Court (1954-69) Accused of Judicial Activism

- Challenged precedent of Plessy v Ferguson (1896) in Brown v Board (1954) under the Equal Protection Clause of the 14th Amendment

- Struck down the law in Miranda v Arizona (1966) under the 5th amendment, enforcing 'Miranda Rights' across the entire US

- Struck down government directed prayer in public schools as the law violated the Establishment Clause of the 1st Amendment: "Congress shall make no law respecting an establishment of religion."

Burger Court (1969-86) Accused of Judicial Activism

- Overruled state laws on abortion in Roe v Wade (1973) under the right to privacy implied in the constitution

- Struck down California law in University of California v Barke (1978) under the 14th amendment of equal protection

Rehnquist Court (1986-2005) Accused of Judicial Activism

- Bush v Gore (2000) ruled to end the recount in 4 Florida Districts, overruling the State Supreme court, especially deciding the outcome of the election

- In US v Lopez (1995) the court ruled the Gun Free School Zones Act 1990 exceeded Congress' power under the commerce clause, thus was less willing to give Congress power over states

- Struck down many provisions in the federal government's Violence Against Women Act for exceeding Congress' power under the commerce clause, again, reluctant to expand the scope and power of the federal government

Roberts Court (2005-present )Accused of Judicial Activism

- Upheld the Controlled Substances Act under the commerce clause in Gonzales v Raich (2003) despite popular California law of legalising the medical use of marijuana. Why can Congress not regulate guns under US v Lopez (1995), but can regulate drugs in this case?

- Overturned decades of precedent in DC v Heller (2008), protecting an individual right to carry guns under this new interpretation of the 2nd Amendment by the SC

- Struck down the Bipartisan Campaign Reform Act for violating the 1st amendment right to free speech in Citizens United v FEC (2010); Obama famously said "it will open the floodgates for special interest"

Roberts Court Accused of Judicial Activism pt2

- NFIB v Sibelius (2012), aka the 'Obamacare' case - the SC ruled that while the 'individual mandate' within the ACA was incompatible with the commerce clause, it was upheld by Congress' power to levy taxes. This dissent not only angered conservatives, but also angered liberals and Obama, who had repeatedly stated the individual mandate provision of the ACA was not a tax

- Shelby County v Holder (2013) struck down key provisions in the VRA (1965) despite having m majority support in Congress when the act was reauthorised in 2006; Justice Ginsberg called it "stunning in terms of Activism"

Justification for Judicial Activism

- The executive and legislative branches can sometimes act unconstitutionally, so the court needs to be able to effectively fulfil its role as a check and balance, otherwise it would undermine the SoP

- Previous Supreme Curt can also make errors, so future courts should challenge precedents that are outdated and unworkable

- The Framers wanted to avoid tyranny of the majority, so the SC is vital for defending minorities who're suffering at the hand of the majority

- Other branches are reluctant to make controversial but necessary changes, and Judicial Activism has brush significant social changes on the US; and when it suits them, Liberals and Conservatives are in favour of an activism court

Arguments Against Judicial Activism

- Judges lack accountability since they are appointed and act under judicial independence, so arguably they should defer to the elected branches

- Judges are not experts on social policy, only on law; efforts to legislate from the bench can create problems, so should be left to the other branches as much as possible

- Frequently ignoring the precedent of other courts undermines the authority of its own decisions; the court relies on public support and respect, but if courts are inconsistent with heir rulings, they'll loose support

- Judges should only strike down laws which are clearly unconstitutional where they have broad agreement, otherwise they look politically influenced and lack legitimacy

5-4 Decisions are High Profile and Important

Bush v Gore (2000)
DC v heller (2008)
Citizens United v FEC (2010)
NFIB v Sibelius (2013)
Shelby county v Holder (2013)
US v Windsor (2013)
Burrell v Hobby Lobby (2014)

5-4 decisions lack legitimacy of a unanimous verdict and undermine the court's authority since it appears that the justices are influenced by personal politics

Approval Rating of the Supreme Court

1997 - 77%
2005 - 57%
2016 - 45%

Approval rating has decreased among the public since number of 5-4 decisions have increased and have become more politicised