5-The Supreme Court and Civil Rights

What does US Constitution say about Supreme Courts?

Article III, Section 1:
Establishes existence of a Supreme Court
Establishes that justices are appointed for life
Article III, Section 2:
Court can determine outcome of all cases brought to it under Constitution
All justices are nominate by president and have to be ratified by Senate
Other parts of Constitution allow Congress to:
Establish structure of lower courts
Establish total number of justices (kept at 9 since Civil War)

Judicial Independence and Constitution

Separation of Powers
Appointment Process
Salary
Security of Tenure

What does US Constitution say about Supreme Courts?

Article III, Section 1:
Establishes existence of a Supreme Court
Establishes that justices are appointed for life
Article III, Section 2:
Court can determine outcome of all cases brought to it under Constitution
All justices are nominate by president and have to be ratified by Senate
Other parts of Constitution allow Congress to:
Establish structure of lower courts
Establish total number of justices (kept at 9 since Civil War)

Judicial Independence and Constitution

Separation of Powers
Appointment Process
Salary
Security of Tenure

Separation of Powers

Not possible to be a member of executive or legislature and be a judge at same time.
Presidents cannot appoint themselves or cabinet members to also sit on Supreme Court

Appointment Process

Any presidential appointments have to be scrutinised and voted on by Senate. This could stop president making excessively political appointments e.g. someone who is politically or personally close to president

Security of tenure

Justices are appointed for life and can only be removed using impeachment process. The president can only make an appointment when a vacancy occurs. There is no retirement age

Salary

The constitution guarantees that a Justice’s pay cannot be reduced during their time in office. Justices do not have to fear negative consequences if they make decisions against president or congress

Independent Nature

uphold rule of law and judicial neutrality-essential that a court is independent from other bodies, especially powerful political institutions
Free from external influence

Define rule of law

The principle that all people and bodies, including government, must follow the law and, if they do not, can be held to account through fair legal processes

Define judicial neutrality

The principle that judges should make decisions based on the meaning of the law and not based on their own personal values

Judicial review process

Court determines whether Constitution has been broken.
Court has power to overturn actions of any other institution if, in the eyes of the court, those actions have broken the constitution. Gives Supreme Court final say in all constitutional cases
Constitutional not clear on extent of power of the Supreme Court.
Marbury vs Madison (1803)-court declared that is has power of judicial review and could overturn Congress-Fletcher vs Peck (1810)-determined that it had power to overturn state law
Seem logical that a Supreme Court should have this powe-largely settled idea that, in making Constitution itself supreme and giving the court power to rule on constitutional issues, the Court has the final say
Could be argued that this is not apparent in Constitution but was a power court assumed for itself

The Appointment Process

President can nominate Justices to Supreme Court-can only do so once a vacancy occurs
No retirement age
Vacancies come about through a justice’s decision to retire
Several justices have been forced out of office due to ill health
Several have died whilst in office.
Appointment process:
A team of advisers draw up a shortlist of candidates who are considered and interviewed
President makes a nomination to Senate
Senate Judiciary Committee holds committee hearings in which nominee is questioned
The full Senate vote with a 50% plus vote required to ratify this nomination

Factors influencing the choice of nominees

No constitutional requirements regulating who can be appointed. A presidential pick is based on:
Legal Qualification-must have legal expertise. Senate is unlikely to ratify someone who is not legally qualified, this would get negative publicity
Ideology-President is strongly influenced by ideology. The case history of a judge used to determine whether they typically give rulings with conservatives or liberal outcomes. Decision to retire is a political one-choose to retire when they know their replacement will be selected by a president who shares similar values to them
Additional Considerations-Social characteristics of the nominee and presidential popularity. Biden pledged to nominate first black female which he did. Increased support from that minority

The Current Court

Referred to by name of current chief justice
Roberts court began with his appointment to position of chief justice in 2005
Typically had a conservative majority

Extent of impact of appointments

Limited: Do not affect overall ideological balance. If a liberal justice dies/retires whist incumbent president is democrat they will be replaced with someone similar
Moderate: When sitting president does not agree with justice who dies/retires
High: Change of ideology and balance. Affects type of constitutional rulings the court will give.

Current Members of Supreme Court

Clarence Thomas, appointed 1991 under Bush, Sr, Conservative
John G Roberts, 2005 under Bush Jr, Conservative
Samuel Alito Jr, 2006 under Bush Jr, Conservative
Sonia Sotomayor, 2009 under Obama, Liberal
Elena Kagan, 2010 under Obama, Liberal
Neil M Gorsuch, 2017 under Trump, Conservative
Brett M Kavanuagh, 2018 under Trump, Conservative
Amy Coney Barrett, 2020 under Trump, Conservative
Ketanji Brown Jackson, 2022 under Biden, Liberal

The extent of their powers and the effectiveness of checks and balances

Enforcing constitutional rules. They can deliver opinions that limit the president and/or Congress, ensuring that they act within Constitution
Involves adjudicating in constitutional disputes between president and Congress

Checks and Balances the Supreme Court has

Uses judicial review to regulate presidential actions and acts of Congress

Checks and Balances President has

Can appoint justices to the Supreme Court when there is no vacancy

Checks and Balances Congress has

Can overturn Supreme Court decisions, alongside the states, by amending Constitution
Can impeach and remove individual justices if they commit high crimes or misdemeanours

Judicial Activism and Judicial Restraint

2 opposing judicial philosophies. Address the extent to which a justice should overturn actions and policies of elected politicians

Define judicial philosophy

A specific approach, taken by a justice, that determines the way in which they interpret the Constitution

Define Judicial Restraint

An approach to judicial decision- making that holds that a justice should defer to the executive and legislative branches, which are politically accountable to the people. It can also refer to the idea that justices should accept the ruling established in previous court decisions

Judicial restraint

Involves a Justice being reluctant to overturn elected bodies or established judicial precedent.
A justice, in their ruling, tends to defer to politicians, based on the idea that elected politicians, not unelected judges, should make policy
Justice John Roberts

Judicial Activism

Justices apply their own personal ideology and give rulings which overrule elected politicians or established judicial precedent.
Activism≠bias. It is having a bias and using it to overturn politicians or precedents
Can be used to achieve liberal or conservative goals depending on what is being reviewed

Impact on Public Policy

SC’s power allows them to have a major impact on public policy
Relates to any government policy that has an impact on society. Covers health, education, law and order, and economic policy
By delivering rulings, SC affect public policy by:
Overturning existing public policy, stating that it’s unconstitutional
Upholding existing public policy-established by politicians
Creating new public policy-judicial interpretation
Challenged on constitutional grounds- constitutional rights, federalism or extent of presidential power
By overturning a law that forbids gay marriage, SC is changing public policy by legalising gay marriage
Creating new public policy associated with judicial activism. Led to claims that SC is a policymaker on a par with traditional policymakers e.g. President or Congress. Based on idea that Constitution is vague-justices can give rulings across public policy
Activist justices shown a determination to use this power to achieve their own policy goals