US POLITICS -US JUDICIARY

What is the purpose of the lengthy selection process in the US for the Supreme Court?

What is the name for what they aim to prevent?

-To Keep the judiciary independent and free from influence from other branches eg. the president

-The ‘over-politicisation’ of the supreme court

What check and balance do Congress have on the President to stop this?

The senate confirm any Presidential nominees through thorough investigation to ensure they are worthy candidates to join SCOTUS

What Article in the US constitution demonstrates this?

Article 2

What are three aspects of the selection and appointments of Supreme Court justices?

-Presidential Selection

-Senate Committee investigation

-The Senate vote

What is the benefit for presidents , with forming judges?

-It’s easier to see the track record of decisions they made to spot their political preference

-This benefits the president when it comes to passing laws

Give an example of this?

-In 2020 Trump was looking for a pro-life person to join the supreme court so he put in Amy Coney Barrett

-He could see her decisions at the Federal Appeals court level where she voted to hear arguments reversing cases where lower courts ruled to block laws that put limits on abortion

What is the senate judiciary committee investigation?

When did this investigation not happen?

-They undertakes an investigation of the nominee if they feel so inclined

-This includes receiving testimony from different groups as well as an interview of the candidate themselves

-The 11 republican members of the committee refused to do an investigation for Merrick Garland, the liberal justice, so a Republican President could be elected to get a Republican Justice

Give an example of a supreme court investigation

-In 2018 Brett Kavanagh was nominate by Trump to the supreme court

-An investigation had to take place due to the allegations he had sexually assaulted Dr Christine Blasey Ford at High School in the 1980s

-A further interview with 9 witnesses also had to take place with 4500 tips on a phone line

What is an example to show that Scrutiny is not effective in the US appointment process?

-The FBI failed to interview Christine Blasey Ford when investigating Kavanagh leading to some arguing that the scrutiny process was not effective.

How can the investigation be shown to be partisan?

-Jackson faced aggressive political attacks , including accusing her of promoting critical race theory and of supporting terrorists ( due to her previous work representing Guantanamo Bay inmates from republican committee members)

What is the last stage?

What majority is needed?

-Give an example

-The vote

-A simple majority

-Ketanji Brown Jackson was confirmed to the US Supreme Court following a full Senate vote in 2022, in which the Senate voted 53–47 in favour of her appointment. She had been nominated by President Joe Biden

What is the key problem with this last stage?

-It’s becoming more partisan eg. Kavanagh only had one democrat vote and Barett did not get a single vote from the democrats

When was the last time the senate rejected a nominee?

-Robert Bork in 1987 as he challenged the civil rights act and the rights to privacy from Roe vs Wade

-Only 2 Democrat Senators voting for the nomination

What is the best counter to the idea that supreme court rulings are always along party lines

Give an example

-Not all rulings are simply along party lines

-Between 2018 -19 less than 50% of all 5-4 decisions had all 5 conservative judges in the majority eg. they overruled trump’s efforts to get rid of DACA

What are the three ways the supreme court can be shown to be politicised?

-Lack of representation

-Biased appointment process

-Judicial ideological differences

What is an example to show representation in the Supreme court?

-In 2022 Ketanji Brown Jackson ,nominated by Biden became the first Black woman on the supreme court.

-Her appointment increased both racial and gender representation , showing that the court is beginning to reflect society more

What about against?

-Out of 116 total justices ever, over 100 were white men, showing slow overall demographic change.

What is an example of the ideological leaning of judges?

-Prior to Trump the Supreme court was in favour 5-4 in favour of Democrats with Anthony Kennedy as the Swing vote

-Kennedy( appointed by Reagan) had some conservative judgements on issues such as gun control but also sided with liberals on issues like LGBTQ etc

-After he left Trump appointed Kavanagh which led to a lot more conservative judgements eg. Dobbs vs Jackson

What can I use to determine what it means for the selection and appointment process to be ‘FIT FOR PURPOSE’

-EFFECTIVE SCRUTINY

-INDEPENDENCE

-BISPARTISANSHIP

-REPRESENTATION

What is a key role of the Supreme Court?

What do they do here?

-Interpreting the constitution given its vague nature

-Given the constitution is sovereign, it gives significant power to SCOTUS to determine the meaning of law

What are three types of interpretation?

-Originalists

-Strict Constructionist

-Loose Constructionist

What is Originalist interpretation?

They believe the constitution should be interpreted based on what the founding fathers originally intended

-So they should base judgements on what the meaning behind the words of the constitution

Give an example of when the Originalist view of the constitution is employed

-US vs Lopez

-The Gun Free School Zones Act 1990 exceeded the definition of interstate commerce as the Court interpreted “to regulate Commerce … among the several States” according to its original meaning at the Founding, limiting it to economic activity

-So expanding that to gun possession made no sense

What is the benefit of Originalism?

-Relying on the words of the constitution prevents judges using their own political views in making judgements

-Also it provides more consistency in judgement

What are Strict Constructionists?

-They believe justices should interpret the constitution purely according to what is says , with their words taken as literal meaning

What is an example of this in practice?

-District of Columbia vs Heller(2008)

-The Supreme court in a 5-4 decision struck down Washington DC’s handgun ban

-Justice Scalia’s majority opinion interpreted “the right of the people to keep and bear Arms” according to its ordinary meaning, rather than expanding or modernising it to justify gun control.

What is the loose constructionist view?

-They see the constitution as a living document , so the constitution should adapt to reflect the attitudes of the modern context

What is an example of the loose constructionist view?

- NFIB vs Sebelius

-The supreme court upheld the ACA’s individual mandate hence allowing congress to use their taxing power ( which was not valid under the commerce clause) to ensure all Americans pay health insurance or give payment to the government

-The Court adopted a flexible, functional interpretation of Article I, Section 8, allowing the law to stand based on its practical effect

-This was a 5-4 vote

What are Cons of the loose constructionist view ?

-It is seen by originalists as a power grab to force a liberal agenda

What are the cons of originalism?

-It still involves an element of judgement as it is impossible to tell what exactly the founding fathers said

-It doesn’t adapt to changing times

What is Judicial Review?

-This is the process in which US supreme court justices decide whether a law is constitutional or not

-In which case it can upheld or struck down

What are three ways the supreme court is politically significant?

-Impact on the executive

-Impact on states

-Impact on elections

What is an example to show how judicial review limits the executive?

-The supreme court struck down Trump’s attempt to end DACA in 2020

-This was an Obama-era policy aimed at allowing undocumented immigrants who came to the US as children (known as Dreamers) to remain in the country

-The court ruled that there was an inadequate justification for doing so in a 5-4 vote

What about when they help?

-Trump vs Hawaii 2018

-The supreme court upheld his executive order which restricted travel into the US by people from 5 Muslim majority countries including Iran and Somalia

-There was a 5-4 split with the supreme court saying the President did have broad power to suspend the entry of non-citizens

Give an example of when they impacted nationwide(federal) legislation?

-NFIB vs Sebelius 2012

-Obergefell vs Hodges or Dobbs vs Jackson

Give an example against?

-United States vs Windsor 2013

-In a 5-4 vote they declared the Defence of Marriage Act as unconstitutional as it denied federal benefits to married same-sex couples that were available to other couples

What is the best example to show how they impact states?

-District of Heller vs Columbia

What is a stat to show that SCOTUS is intervening more overtime?

From 1970-1979 Scotus 20 federal laws were declared unconstitutional but previously only 1

Give an example of when SCOTUS impacts elections?

-Presidential Election 2000 ( Bush vs Gore)

-It was all dependent on who would win the 25 Florida Electoral college votes

-When Bush was leading against Gore Florida’s supreme court appealed to the US supreme court for a recount which was ruled as unconstitutional

-So Bush won with 5 more college votes

What is the counter?

-Sometimes the supreme court acts politically cautious or reactive instead of a clear , confident guardian of the constitution

-eg. Trump 2020 when the Court refused to rule on the alleged fraud in the 2020 election

-Trump had complained about the alleged irregularities with voting machines and challenged election results in states like Pennsylvania

What are three limitations of the supreme court?

-Impeachment

-Constitutional Amendments

-Precedents

What is needed to impeach a supreme court justice?

-Simple Majority in the House

-2/3 or super majority in the senate trial

Give an example of this?

-Thomas Porteous who was the district judge of Louisiana was impeached by the house in 2009

- He was illegally receiving gifts from lawyers without disclosure and lying about his financial situation

What is the easy counter?

-In the History of the US 12 judges( all judges not just SCOTUS) have been impeached and only 7 convicted

-But none of these were SCOTUS judges

What does it mean by constitutional ammendments?

-Congress can amend the constitution to make laws that were unconstitutional now constitutional

Give an example of this?

-The 14 amendment saying that citizenship was granted to all persons born or naturalised in the US overuled the ruling in Dred Scott vs Sandford

-This said that rights of citizens was not extended to those of African descent

What is needed to pass this?

-2/3 majority in the House and Senate or two-thirds of state legislatures (34 out of 50) call for a constitutional convention to propose an amendment (never used).

-Then ¾ of state legislatures or state conventions need to ratify it

So what is the easy counter?

-High threshold means it barely happen

-Only done on 4 occasions eg. The attempt to overturn the Texas vs Johnson( defended flag burning) case via Flag Desecration Amendment failed

What does it mean by precedents?

SCOTUS can be said to be bound by the principle of stare decisions which means that judges should respect precedent established by past decisions or risk the idea that law is not passed consistently

Give an example of this?

-As per Roe vs Wade right to privacy was established as a precedent which in then seen repeatedly used in future cases like:

-Obergefell vs Hodges whereby the right to same sex marriage was allowed via the due process and equal protection clause

-The both use the 14th amendment as justification

What is the counter?

-This precedent can be overturned as seen with Dobbs vs Jackson in 2022

-This is done if the precedent no longer functions in the society

-Hence, it shows SCOTUS can reshape constitutional interpretation, even reversing decades of established law.

What are the three ways the supreme court is politicised?

-The appointment process is more partisan than based on merit

-The judiciary has now become a hallmark for essentially making law

-They have their own ideological preferences

What is an example of the the appointment process being partisan?

-Trump openly stated in his campaign that he would nominate a judge who was pro-life and requested that the Federal Society( lawyers who support the originalist view ) to make a shortlist of 21 justices for choosing in 2016

-Including Gorsuch who had a strict constructionist view

What is bad about the judiciary essentially making law?

-They essentially pervert the role of the branches of government by doing the role of congress

-They are also an unelected body so it decreases the democratic legitimacy of their decisions

What is bad about decisions being ideologically driven?

-SCOTUS is supposed to do the will of the constitution not themselves

Give an example of this?

-Dobbs vs Jackson 2022

-The 5–4 decision closely reflected the conservative/liberal split of the justices:

-The Conservative majority ( eg. Kavanaugh) voted to overturn Roe vs Wade. Liberal minority (eg. Kagan) disagreed.

-The ruling aligned with longstanding conservative judicial philosophy on abortion

What is the DACA case called?

DHS vs Uni of California