Judiciary Flashcards
1
Q
E+A 3 aspects of the selection and appointment of US SC justices
A
- Judges are selected by President
Trump nominated Brett Kavanaugh 2018 Biden nominated Ketanji Brown Jackson 2022
Ike nominated Earl Warren 1953
They consider their judicial experience, legal knowledge, professional standing , personal history and integratory. Rulings on previous cases scrutinised to see how they will vote in the future
Aim in this vetting process is to eliminate unsuitable candidates but not always successful
Brett Kavanaugh and Clarence Thomas were both accused of sexual misconduct
1987 Douglas Ginsburg withdrew from the process after his earlier marijuana use was revealed. - Presidents aim to appoint justices that share their political philosophy
Trump’s two nominations were backed by the conservative legal group, the Federalist Society.
selection and appointment process for justices is therefore highly politicised,
with parties and pressure groups campaigning for and against candidates.
Judges are completely independent once appointed, so will not automatically continue to share the president’s political philosophy. Bush appointed David Souter (SC 1990–2009), but Souter became an unexpectedly liberal - The Senate Judiciary Committee considers
presidential judicial appointments, including nominees to the Supreme Court.
Conducts confirmation hearings and votes on the nominee as a recommendation to the Senate. The entire Senate then has the
final vote.
2017 introduction of the ‘nuclear option’ (50 votes needed) for judicial filibusters was important because it effectively means justices can be confirmed with support from just the majority party. Allows controversial candidates to be approved and gives more power to a president whose party controls the Senate.
Justices now receive much less bipartisan support from the Senate.
2
Q
E+A 3 ways the SC preforms its role as the guardian of the constitution
A
- judicial review strikes down Acts of Congress and laws passed by state legislature when it incompatible with constitution
US v Texas (2016) struck down Obama’s executive order that gave an indefinite delay of deportation to 5 million illegal immigrants
JR is the means by which constitutional rights and liberties of ordinary people are protected against legislators yet the court can easily rule against other branches of govt
may be undemocratic especially when law is fundamentally changed
Courts rulings on constitution matters only overturned by an amendment which is difficult to achieve this gives the court large power - Judicial activism
chief justice earl warren worked for a unanimous verdict on brown v board
some justices see that constitution as “living” so needs to be interpreted to fit modern society.
These judges are loose constructionists like the liberal justice Ruth Bader Ginsburg, who served on the Supreme Court from 1993 until her death in 2020
ja and lc limited by the need for a majority verdict from 2020 onwards its been a 5-4 majority - Judicial restraint conservatives
strict constructionists or originalists like justice Neil Gorsuch
legal philosophies of judicial restraint and strict constructionism conflict when considering an issue which a previous Court has made a liberal ruling on, such as
Roe v Wade (1973).
Originalists and strict constructionists would likely conclude that the Constitution is silent on abortion, suggesting that Roe should be reversed.
Conservative justices, such as Brett Kavanaugh, promised to follow judicial restraint, meaning that they would not reverse a previous decision by the Court yet Kavanaugh’s joined other conservative justices in the 5-4 ruling to overturn Roe v. Wade, the 1973 ruling that established abortion as a nationwide right.
3
Q
E+A 3 ways the SC is politically significant
A
- Court has ruled on the most politically controversial areas of US public policy, Abortion, affirmative action, gun control, marriage rights and immigration. Key landmark cases have led to politically significant changes to the law, such as Roe v
Wade (1973) and Obergefell v Hodges (2015).
Judgements had the same effect as a new law legalising abortion or same-sex marriage, with the crucial difference that a law passed by Congress would have a clear democratic mandate. Conservatives condemned justices for ‘legislating from the bench’, and campaign to have these judgements reversed. - Court intervened in the electoral process Bush v Gore (2000). George W. Bush became president by 271 to 266 electoral college votes Perhaps the most politically significant judgement made by the Court in recent decades, as it decided the outcome of the general election and placed a president in the
White House who would later lead the USA into a ‘war on terror’. All conservative justices voted in Bush’s favour, whereas all four liberal justices voted against. - Impact on federalism
Frequent judgements that overruled state laws, restricting states’ rights to set their own laws in certain areas,
District of Colombia v Heller (2008) ruled state bans on handguns unconstitutional, and Roe v
Wade (1973), which made state abortion bans illegal.
Federalism is of great political significance. Most conservatives view diversity as essential to a federal country and oppose new restrictions on states.
Liberals argue that civil rights advances, such as racial desegregation and same-sex marriage, would not have occurred without judgements that applied to all states
4
Q
E+A 3 ways that cultural theory could be used to study the similarities and differences between the UK and US SCs
A
- Both cultures prize the rule of law and judicial independence
A tradition dating back to Magna Carta (1215) US inherited these values from its
previous existence as 13 British colonies.
In both countries, a strong judiciary, headed by the Supreme Court, holds the government to account.
Although the two countries have this shared culture, the culture of a truly independent Supreme Court is very new in the UK, as prior to 2009, the Law Lords sat in the House of Lords. In contrast, the USA has had an
independent Supreme Court since its inception. - US Supreme Court occupies a central role in US political culture that the UK Court does not.
The US Supreme Court’s definition of citizens’ rights via landmark rulings has generated bitter cultural battles between liberals and religious groups over abortion and same-sex marriage.
The UK Supreme Court has a comparatively low public profile, although it has made rulings on important cultural issues, such as its 2018 ruling on the Asher’s bakery case and the wrongful proroguing of parliament.
UK Supreme Court’s deference to Parliament
means that its judgements are ultimately less culturally significant - both Supreme Courts have been criticised for judgements against democratically elected governments.
US Supreme Court criticised by Trump and the
UK Supreme Court by the Daily Mail and Boris Johnson.
US Supreme Court has received a greater degree of public criticism because it is more politically significant
criticism of UK Supreme Court is mainly on decisions relating to, for example, the HRA
and Brexit.
The USA’s ‘culture wars’ over guns, religion, immigration and abortion are most closely
reflected in the British debates over immigration and Brexit, which is where the Supreme Court has made its most controversial rulings.
5
Q
E+A 3 ways that rational theory could be used to study the impact of the US and UK SCs on government and politics
A
- Justices should take a rational approach to the law
Analyse the legal merits of each case and making a logical judgement. The meaning of the law is often difficult to determine, so justices make an individual judgement based on their personal analysis.
Leads to divided judgements, with justices writing strong opinions and dissents on both sides of the argument.
Differences of opinion between justices
make judgements more politically controversial in both countries
Chief Justice Earl Warren worked to ensure a unanimous verdict in Brown v Topeka (1954) because he wanted to give the ruling greater credibility, a rational response to the difficulty of divided judgements. - Individual justices make decisions based on their personal legal preferences and philosophy. In the USA, the appointment of strongly liberal and conservative justices
means judgements are frequently politically controversial and justices may be accused of judicial activism.
UK justices generally follow a more retrained judicial approach.
The difference between UK and US judicial approaches is a rational response to the different legal systems in which they find themselves.
UK justices must defer to Parliament, whereas US justices are free to make landmark judgements.
Conservative US justices rationally tend to practise judicial restraint similar to that of UK justices, as this avoids change, whereas liberal US justices may prefer to adopt a loose
constructionist approach, controversially allowing them to adapt the Constitution to the needs of modern society. - US and UK Supreme Courts’ decisions can lead to politicians attempting to influence the judiciary.
Trump appointed unprecedented numbers of
conservative appeal court judges, and appointed justices to the Supreme Court who were backed by the conservative Federalist Society.
Johnson’s attorney-general, Suella Braverman, argued that Parliament needed to ‘take back control’ from the judiciary
Johnson announced that he was considering
introducing a US-style appointments system for the Supreme Court after it ruled against him in Miller v the Prime Minister (2019)
US appointment system gives the president far more scope to directly influence the make-up of the Supreme Court than the UK prime
minister has over the UK Supreme Court, so Johnson’s consideration of a similar system was a rational response to his frustration at being overruled by the Court.
6
Q
E+A 3 ways that structural theory could be used to study the relative independence of both judiciaries
A
- Security of tenure allows justices to make independent judgements. US justices have life tenure while UK judges have tenure until age 70.
tenure is an essential structural requirement for independence as it ensures the position of justices is protected from government interference.
Johnson and Trump have criticised rulings but have been unable to remove justices in
retribution. - separation of powers gives both judiciaries independence from the other two branches of government.
The separation of powers was created by the US Constitution, as well as the Constitutional Reform Act 2005 in the UK.
Both Supreme Courts regularly rule against the government, e.g. United States v Texas (2016) and Miller v the Prime Minister (2019), which demonstrates the importance of the
separation of powers in allowing the Court to make rulings against the government.
The US Supreme Court can also strike down laws made by Congress, but the sovereignty of Parliament means that the UK Court’s
power is more limited in regard to the legislature.
However, it is still independent of Parliament and can refer laws that breach the HRA, for example, back to Parliament for its consideration. May change due to Brexit. - appointing US justices is a political process, which leads to politicised US justices and could affect their independence.
UK justices are independently appointed and
do not have an obvious ‘conservative’ or ‘liberal’ leaning.
politicised judges in the USA does not automatically threaten their independence as the president has no influence over justices once appointed, since they have tenure. Justices may rule against the political interests of the politicians who appointed them
justices Ruth Bader Ginsburg and Stephen Breyer Clinton v Jones (1997). (that ruled a sitting President of the United States has no immunity from civil law litigation, in federal court, for acts done before taking office and unrelated to the office)
This suggests that the structural difference in appointment processes between the USA and the UK does not produce a corresponding difference in independence, even if it does produce a much more politicised judiciary.
