us supreme court & civil rights evidence

COMPLETE

lack of republican support for AA

since the nixon ‘southern strategy; it has consistently opposed race-baseed AA, calling it ‘reverse discrimination’, 2020 and 2024 GOP platforms explicitly rejected race-based preferences in education and employment

democrat caution towards AA

they have avoided strong support due to electoral risk- clinton 1995 said ‘mend it, don’t end it’ acknowledging AA but calling for limits and the biden administration avoided legislative expansion of AA

support for AA by parties

BLM protests involved 15-26m americans and pushed racial inequality back onto political agenda, democratic emphasis on it in 2020 party platform and growth of congressional progressive caucus (~100 members by 2023) increased internal democratic pressure to defend AA

state bans on AA

9 states (eg california, michigan, florida) banned AA via ballot initiatives, 1996 california proposition 209 banned race-based preferences in public education and employment

lack of state bans on AA

41 states have not banned it despite having initiative mechanisms and california voters rejected proposition 16 in 2020 which would have repealed the AA ban

SC against AA

• gratz v bollinger 2003 struck down automatic point-based AA

• students for fair admissions v harvard 2023

SC defending AA

• grutter v bollinger 2003 allowed race to be considered if it was ‘a factor, not the factor’

• shows AA was tolerated for 20 years, though now reversed

minority representation in congress

AAs are 13.6% of US population and 13% of the house, hakeem jeffries in 2023 became the first black house minority leader

minority representation in executive and judiciary

obama elected in 2008 and 2012, ketanji brown jackson appointed to SC in 2022 (first black female justice)

lack of minority representation in republican party

fewer than 5 black republicans served in congress until 2023, republican leadership is overwhelmingly white

social successes and failures of AA

• minority enrolment in universities increased significantly from 1970 to 2010

• greater visibility of minorities in law/medicine/media leadership

• students for fair admissions v harvard 2023 shows AA has deepened racial resentment

economic success of AA

black middle class grew significantly between 1967 and 2017 and hispanic home ownership rates rose steadily post 1990s

economic failures of AA

median white household wealth remains 6-7x higher than black household wealth- AA benefits a minority elite rather than structural equality

discrimination continues through voting rights

• shelby county v holder 2013

• voter ID laws in states like texas and georgia as recently as 2021

• racial gerrymandering

voting rights are legally protected

• voting rights act still exists, section 2 upheld by allen v milligane 2023

• all laws constitutionally permissible; laws are applied equally regardless of race

discrimination continues through immigration

• bipartisan enforcement- obama deported around 3m migrants and trump expanded enforcement/border restrictions

• policy gridlock- no pathway to citizenship for undocumented migrants still

living constitution is superior for coping with modern circumstances

• riley v california 2014 applied 4th amendment to modern digital technology

• reno v ACLU 1997 applied 1st amendment free speech protections to the internet

• allows evolution of constitutional principles

originalism can still cope with modern circumstances

• 2008 DC v heller interpreted 2nd amendment based on 18th century meaning but applied it to modern firearms

• US v jones 2012 used property-based interpretation to limit GPS tracking

• old principles are applied to new contexts without rewriting the constitution

living constitution is more honest

• brown v board 1954 overturned plessy v ferguson 1896 despite segregation being accepted when the constitution was written

• obergefell v hodges 2015 used evolved interpretations of 14th amendment

originalism is more objective (even if less honest)

• dobbs v jackson 2022 overturned roe v wade arguing abortion rights were not deeply rooted in US history

• antonin scalia, previous SC justice, argued originalism constrains judges by anchoring decisions to historical meaning not personal morality

living constitution protects rights better

• lawrence v texas 2003

• brown v board 1954

• obergefell v hodges 2015

originalism can be favoured as neither that nor living constitution guarantees rights

• originalism led to crawford v washington 2004 that strengthened rights using original meaning of the 6th

• living constitution restricted rights in korematsu v US 1944 which upheld japanese internment using flexible interpretation

SC enforces protection of civil liberties

• judicial review established in marbury v madison 1803

• brown v board 1954

SC cannot always enforce civil liberties

• brown v board faced massive resistance, full desegregation needed civil rights act 1964 and federal troops

• constitutional amendments override SC- 11th overturned chisholm v georgia

SC can interpret constitution

• roe v wade extended privacy to abortion decisions

• lawrence v texas used liberty clause to protect sexual autonomy

SC is limited by ideology

• dobbs v jackson due to conservative majority

• shelby county v holder weakened voting rights act 1965

judicial activism protects liberties

• gideon v wainwright 1963 guaranteed right to legal counsel

• warren court (1953-69) was very activist- brown v board, gideon v wainwright, miranda v arizona

judicial restraint limits protection of liberties

• trump appointees means SC now 6-3 conservative majority

• rehnquist court (1986-2005) more deferential to states and congress

judicial review gives the SC great policy making power

can strike down laws, established in marbury v madison, leading to major policy changes eg citizens united v FEC struck down parts of campaign finance law, and overturn decisions of elected bodies - since 1803 court has invalidated 180+ acts of congress

institutional limits of SC

• no power of initiation- must wait for cases to be brought to it

• around 7000-8000 petitions annualy but onyl 70-80 cases heard per year

• court relies on president and states to enfroce rulings eg resistance to brown v board required federal enforcement

• constitutional amendments by congress have reversed court decisions

constitutional amendments reversing SC decisions

• 1913 16th amendment overturned limits on income tax from pollock v farmers’ loan and trust co 1895

• 1868 14th amendment overturned a major pro slavery ruling of dred scott v sandford 1857

SC has weak democratic accountability

unelected justices with life tenure (article iii- life tenure during ‘good behaviour’), removal extremely rare, decisions can contradict public opinion eg dobbs v jackson overturned roe v wade despite majority support for abortion rights in many polls

removal of SC justice

samuel chase 1805 - only justice ever impeached

SC justices are democratic due to appointment process

president elected nationally appoints justices, senate judiciary committee conducts extensive hearings eg merrick garland nomination blocked in 2016, congress controls court’s size, jurisdiction and budget

number of SC justices

judiciary act 1789 set court at 6 changes, this number changed over the years until 1869 judiciary act which fixed court at 9 justices

politicised appointment process for justices

• president nominations reflect ideology eg trump

• polarised confirmations eg amy coney barrett 52-48 in 2020

• interest groups eg federalist society influence judicial selection

trump SC appointments

he explicitly promised to appoint pro-life judges and selected nominees from a lsit produced by the federalist society, he appointed 3 conservative justices in one term (neil gorsuch, brett kavanaugh, amy coney barrett) - created a 6-3 conservative majority

once appointed, justices have independence

• they can rule contrary to ideology of the president who appointed them eg john roberts appointed by bush voted to uphold ACA in 2012

• american bar association reviews nominees and rates them based on qualification

• only 1 justice ever impeached, cannot be removed for political reasons

judicial review can affect political outcomes

• bush v gore effectively decided the 2000 presidential election

• citizens united v FEC 2010 reshaped campaign finance

most SC cases are non-political

• lots of consensus- in 2016-17 term 57% of decisions were unanimous

• only around 20% of cases are decided by narrow 5-4 ideological splits

• most SC cases involve technical statutory interpretation rather than controversial political questions eg kimble v marvel entertainment 2015

kimble v marvel entertainment 2015

patent licensing dispute involving a spiderman toy

judicial philosophy- ideological divisions influence decisions

originalism (antonin scalia) vs living constitution (ruth bader ginsburg), dobbs v jackson 2022 6-3 decision, reflecting the conservative majority and bush v gore 2000 was split clearly along ideological lines (5-4)

judicial norms constrain role of ideology in decisions

• respect for precedent - planned parenthood v casey 1992 reaffirmed the core principles of roe v wade, citing the importance of precedent

• cross-ideological voting eg conservative justice neil gorsuch wrote majority opinion expanding LGBTQ workplace protections in bostock v clayton county 2020

judicial restraint respects democracy

• in national federation of independent business v sebelius 2012 roberts upheld ACA, stating the court should defer to congress when legislation can reasonably be interpreted as constitutional

• out of thousands of cases, since 1789 SC has only struck down around 180 federal laws

judicial restraint may neglect constitutional responsibility

• excessive restraint eg korematsu v US 1944 upheld the internment of over 100,000 japanese americans during ww2, condemned as a failure to protect civil liberties

• sometimes fails to challenge gov eg trump v hawaii 2018 upheld muslim travel ban despite criticisms of discrimination

judicial restraint protects institutional legitimacy

• highly controversial rulings can erode trust in the court eg in 2022 (after dobbs v jackson) public confidence in the SC dropped to 25% - lowest level recorded

• dobbs overturned roe v wade after 49 years of precedent, damaging legitimacy

judicial activism is necessary to protect rights

• obergefell v hodges 2015 legalised same sex marriage nationwide

• judicial leadership can correct democratic failures eg miranda v arizona 1966 strengthened due process protections

judicial activism risks ideological decision making

• court has a conservative 6-3 majority, after trump’s appointments = political polarisation surrounding the SC

• activism allows judges to impose personal values eg roe v wade 1973 established abortion rights based on a constitutional right to privacy - abortion is not explicitly stated in the constitution

judicial restraint may reflect ideological bias

• choosing restraint may be political eg trump v karnoski 2019 allowed trump administration’s transgender military ban to take effect temporarily while litigation continued

• in the past restraint favoured federal power - between 1937-95 the SC did not strike down a single federal law under commerce clause, allowing major expansion of federal authority

presidential nominations to SC politicise it

• trump appointed 3 justices in 1 term- neil gorsuch, brett kavanaugh, amy coney barrett = 6-3 conservative majority

• led to dobbs v jackson ruling

presidential nominations to SC provide democratic legitimacy

• president has a national democratic mandate and appointments reflect electoral outcomes

• biden appointed ketanji brown jackson in 2022 - first black female justice

• justices may behave unpredictably once appointed eg roberts voted against ACA

senate confirmation of justices has become increasingly partisan

• highly polarised senate votes- amy coney barrett confirmed 52-48 in 2020

• senate republicans refused hearings for merrick garland in 2016

senate scrutiny of SC appointments ensures accountability

• article ii requires senate approval of nominees

• robert bork rejected 58-42 in 1987

• douglas ginsburg withdrew his nomination in 1987 after senate scrutiny revealed past marijuana use

media/pressure groups politicise SC appointments

• interest groups like federalist society helped shape trump’s nomination shortlist

• advocacy groups spent over $10m on advertising campaigns to influence senators during the confirmation of brett kavanaugh in 2018

professional legal evaluation checks SC appointments

• ABA evaluates nominees’ qualifications

• most nominees have extensive judicial experience eg neil gorsuch previously served on US court of appeals for the 10th circuit