Past Paper Questions

SC has ruled on constitutional rights in a range of ways historically and recently, protecting constitutional rights in some effective ways

e.g. Obergefell vs Hodges (gay marriage), Allen vs Milligan 2023 (discriminatory gerrymandering)

The SC has the power to rule on rigths explicitly laid out in the constitution, and arguably has effectively protected these rights in its cases

Furthermore, the fact that the SC is limited to basing its rulings on the cosntitution suggests that the SC effectively protects rights through pure judicial review, rather than being influenced by politically changing climates

BUT

whilst it can make these decisions, its enforcing powers are limited

e.g. after ruling on desegregating schools (Brown vs Topeka BofE 1954), only 1% of black people actually attended mixed schools by 1964

More recently, Guantanamo Bay has appeared in four SC decisions from 2004-2008 (such as Boudemeine vs Bush) but the power of the SC to enforce these decisions is extremely limited, highlighted in how often it appears in SC cases.

As an appointed body, separate from the branches of Congress and the executive, the SC is supposedly an independent body

Justices cannot be removed as long as they maintain ‘good behaviour’, with only one justice ever having been impeached in 1805

This means that justices are not dependent on electorate support in order to retain their positions, and thus can protect rights which the majority may disagree, hypothetically preventing tyranny of the majority and protecting minority rights constitutionally

BUT

they are fundamentally elected by the president, and confimed by the senate, so they cannot be claimed to be judicially neutral/non-political

increasing disruption to the ideological balance of the court — typically, justices will replace a previous justice who was ideologically similar but not the case with alito and kavanaugh

presidents can pressure the justices they appoint e.g. trump used social media like twitter to pressure his justices

direct impact on cases: trump appointed 3 justices making it a R 6 - 3 D split, most cases now fall along this split

First stage of the SC appointments process involves the President nominating the justice they want on the court

Explicit political influence; Trump able to appoint 3 socially conservative, right-leaning justices to the court during his time

This has direct ramifications e.g. a widening of Trump’s powers as a result (e.g. him being enabled to pass his travel ban)

Also explains number of split decisions on 2022 court: 30% of decisions as 6-3 split, direct political alignment

BUT

Not always successful e.g. Harriet Miers for Bush

influence of the President does not always mean they will have power in a politicised court e.g.

3 of Nixon’s appointments voted against him in US vs Nixon 1974

Anthony Kennedy (Bush’ appointment) voted and created the majority decision against Bush in Boudemeine vs Bush 2008

Not necessarily always in favour of President but demonstrates Presidential influence and highlights how the appointments process has created an increasingly political court

involvement of the Senate in the appointments process also politicises it, reduces the intended distance of the SC

Since 2006, all senate votes for justices have been along party lines

Could argue there’s a lack of consistency - Obama unable to appoint Garland but Trump appointed a justice much later

Also has explicit political ramifications e.g. defeat of DAPA after Obama couldn’t appoint Garland

BUT

could argue there are some benefits to a politicised element

SC justices have no mandate, unelected and largely unaccountable

The involvement of bodies like the senate, who have an elected mandate, allows for a degree of accountability and political consent to the process

But this is overwhelmed by the flaws in the appointments process overall and the significance bodies like the senate and president have in making decisions

The appointments process should be set up in a way to enable effective scrutiny and ensure justices are qualified for their roles

american bar association, senate judiciary committee, lengthy scrutiny process should suggest an effective appointments process

BUT

actually just mostly politicised

senate judiciary committee only speak for 33% time

Clarence Thomas still appointed despite being just ‘well-qualified’

Also influence of bodies like Judiciary Crisis Network, donated $7 million against appointment of Merrick Garland, $10 million towards Robert Bork

Both Thomas and Kauvanagh had sexual misconduct hearings against them

Arguably, the supreme court is not an imperial judiciary because it is fundamentally limited by the constitution

as an appellate court which can only rule on things in the constitution, the SC is limited in the decisions it can make

it also only hears a small minority of cases: receives 7000 - 8000 a year but only hears about 1%

BUT

the cases it does rule on are extremely significant and not really constitutionally limited

e.g. overturned past precedent in dobbs vs jackson WHO, constitutional limits change over time, very interpretive

Obergefell vs Jackson from same words of constitution as dobbs vs jackson

even soem justices reject the right of the court to make the decisions it does

The SC have made hugely significant changes which have changed America e.g. Obergefell vs Hodges 2018, Shelby County vs Holder 2014,

can change the political landscape and rights in America despite being unelected and without an obvious mandate (apart from the constitution in a sense)

BUT

doesn’t have the power to enforce these decisions

e.g. Brown vs Topeka Board of Education desegregated schools in 1954, but by 1964 only 1% black population actually attended mixed schools, in Little Rock the army had to be used to enforce this ruling

More recently, Guantanamo Bay has appeared in four SC cases between 2004 - 2008, but no changes have occurred — limits to their actual enforcement power

Furthermore, the SC are an imperial judiciary because of their ability to limit the actions of the democratically elected President/Congress

For example, Obama failed to pass any of his immigration reform despite bipartisan support in Congress, and actions such as the DREAM act and DAPA were struck down by an unelected SC

BUT

recent SC cases have also expanded the president’s power, contributing to an imperial presidency

Trump vs Hawaii 2018, trump’s travel ban hugely increased presidential power

The SC has been made a political institution in part because of its appointments process

nominated by the President, confirmed by the Senate

Presidents therefore have explicit influence over who his appointed e.g. Trump was able to appoint 3 judges to the courts (whereas Obama was stopped from appointing Merrick Garland)

has ramifications on the composition and decisions of the court e.g. in current court, 30% of decisions were split decisions (3 - 6 split) which aligns with the 3 democrat appointments and 3 republican appointments

BUT

just because justices are appointed by political bodies it doesn’t mean they will always rule in ways they like

Kennedy, Bush’ own appointment, ruled against him and composed the majority decision in Boudemeine vs Bush 2008

similarly, 3 of Nixon’s appointments ruled against him in US vs Nixon 1974

However, this doesn’t detract from the appointments process being politicised, and as a result the decisions of the SC suggesting a corresponding political influence, moving from reflecting the average US voter’s views to the average Republican voter’s views

However, the range and powers of the Supreme court are limited by the constitution, which theoretically should stop them from being a political body

decisions are constitutionally limited e.g. the court ruled that the flag protection act 1989 was unconstitutional, even though Kennedy said he personally supported it

when it comes to rights, rulings can only be about the first 10 amendments

hypothetically should reflect past precedent and just interpret the constitution

BUT

in practice, rights rulings seem to expand beyond the constitution on political decisions, and interpretations have changed over time

Dobbs vs Jackson 2022 overturned Roe v Wade, significant change in decisions

also variable interpretations of the same part of the constitution e.g. dobbs vs jackson compared to obergefell vs hodges

Following the political question doctrine, the SC technically shouldn’t rule on cases with explicit political consequences

For example, no decision was made on Rucho vs Common Cause 2019, because it was a case about gerrymandering, was viewed as explicitly political

Furthermore, as an appellate court the SC is more generally limited in what cases it can hear, restricting its scope and powers

BUT

even if the supreme court isn’t supposed to rule on political cases, its decisions have explicit political ramifications that cannot be ignored, suggesting it is a political body

Most visible in Bush vs Gore 2008, the SC literally decided who the president was going to be, arguably the most significant political decision

Shelby county vs Holder has had explicit impacts on voting rights, significant politically

Has also expanded the power of the president e.g. legalising Trump’s Muslim countries travel ban

15th amendment extended the right to vote to African American men

voting rights act 1965, instrumental in increasing registered black American voters, particularly in areas with a history of racial discimination

national voter registration act 1993 — made it easier for African American voters to register

2008 — significant black turnout (65%), almost as high as white turnout (66%) (partially attribued to heightened political engagement)

2020 — successful efforts to mobilise ethnic minority turnouts as well e.g. Stacy Abram’s work, registering new voters, caused significant change (Biden narrowly run Georgia)

BUT

undermined by Shelby county vs Holder 2013

section 4b and 5 overturned, led to areas in North Carolina to not be subject to the same checks, led to a change in North Carolina’s requirements

Texas, Missisipi and Alabama introduced photo ID, disenfranchises African American voters

2020 election — allegations to suppress the black votes e.g. limited polling stations in black areas, limited drop off locations in Texas in the more diverse areas

affirmative action has significantly improved racial equality in America

affirmative action = allowing minority groups to be intentionally advatanged in order to correct historic ineeqalities

from 1979-2019, black enrolment rates have increased by 73%

Harvard’s class of 2024 is 59.4% non-white

much higher enrolment visible

BUT

it hasn’t made huge impacts everywhere e.g. 20% black families still love below the poverty line, the college completion rate for black men is only at 40%

affirmative actions hasn’t gone far enought to further racial equality AND its not being undermined e.g. SFA vs Harvard, California removed it entirely

some positive changes toward representation, significant for racial equality

25% congress are ethnic minorities, most diverse congress ever (nearly doubled since 2003-2005 congress)

Obama as the first non-white president, Biden’s cabinet was around 55% non-white and first Native American as secretary of the interior

efforts to improve representation e.g. majority-minority disctricts as recommended by the NAACP, currently 136

BUT

overall limited, not gone far enough, only 25% compared to 41% population

only 3 non-white state governors

4/116 supreme court justices have ever been ethnic minorities

gerrymandering often aims to underrepresent ethnic minorities e.g. congressional district 12 (forced to change under Shaw vs Reno), ‘Pack or Crack’