The composition and ideological balance of the SC

Question 1

Why is the ideological balance of the SC so important?

Answer 1

The balance between liberal and conservative justices is important for congress and the president, as it determines which laws and rules will be allowed to stand and which will be struck down

Question 2

Describe the ideological balance of the SC in recent years and what this has meant?

Answer 2

For much of its recent history the court has been evenly balanced, and the most centrist judge will usually have the casting vote, this is known as a swing justice

Question 3

What is a swing justice

Answer 3

A swing justice is the centrist judge that finds themselves casting the deciding vote in a court evenly balanced between conservatives and liberals

Question 4

Who was the last real swing justice?

Answer 4

This swing justice was Anthony Kennedy until his 2018 retirement. As he was replaced by the notably more conservative Neil Gorsuch, the attention has shifted to Chief Justice Roberts. The confirmation of ACB in 2020 shifted the court in an even more conservative direction

Question 5

What type of justices well presidents look to appoint?

Answer 5

Presidents want to appoint justices who share their judicial philosophy. This is why justices are classed as conservatives and liberals. Another classification is that of strong and loose constructionists

Question 6

What is a strict constructionalist

Answer 6

Strong constructionist is a SC justice who interprets the constitutional strictly or literally, they tend to stress state power. Strict constructionist judges are normally conservative. They look at the original intent of the FF and are therefore described as originalists. They tend to be appointed by R presidents. They focus on the text of the constitution. They see the court’s job as being to derive and apply rules from the words written by the FF. They see constitutional principles as being fixed rather than evolving

Question 7

Give some examples of strict constructionalists

Answer 7

John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh are all examples of strict constructionists

Question 8

What is an originalist?

Answer 8

An originalist is a SC justice who interprets the constitution in line with the meaning or intention of the framers at the time of enactment

Question 9

Give some quotes from an originalist justice, Scalia

Answer 9

‘The constitution I apply is not living but dead. Our first responsibility is not to make sense of the law – our first responsibility is to follow the text of the law’. ‘You think there ought to be a right to abortion? No problem. The constitution says nothing about it. Create in the way that most rights are created within a democratic society. Pass a law. A constitution is not meant to facilitate change. It is meant to impede it, to make change difficult’ (Two quotes by late originalist justice Antonin Scalia)

Question 10

What is a loose constructionists

Answer 10

A loose contructionist is someone who takes a less literal interpretation of the constitution. They tend to support broad grants of power to the federal government

Loose constructionist judges tend to have a more liberal outlook. They tend to interpret the constitution in a more flexible fashion – reading elements into the document that they think the FF would approve of. They see the document as a living constitution. Usually appointed by D presidents

Question 11

Give some examples of SC justices who are loose constructionists

Answer 11

Associate justices Stephen Breyer, Sonya Sotomayor and Elena Kegan all fall into this category

Question 12

Describe the idea of a living constitution

Answer 12

A living constitution is where the constitution is considered to be a dynamic and living document, the interpretation of which should take into account the views of contemporary society

Question 13

How are different court eras denoted? Give an example of one of these courts eras

Answer 13

Different eras of the court are denoted by the name of the Chief Justice at the time

The 1801-35 Marshall Court famously saw the expansion of the jurisdiction of the SC through the Marbury v Madison (1803) and Fletcher v Peck (1810) judgements

Different courts are known for their different focus

Question 14

What was the main focus of the Warren Court?

Answer 14

Famous for making judgements that have been described as both liberal and an example of judicial activism in the sphere of civil rights

Question 15

List some its key cases

Answer 15

Brown v Board of Education of Topeka (1954)

Miranda v Arizona (1966(

Question 16

What was the main focus of the Burger Court?

Answer 16

Upheld many precendents of the Warren Court and is associated with one of the most liberal and activist rulings in history – Roe v Wade (1973)

Also famous for demonstrating the judiciary’s check on the president. Without its rulings it is doubtful that Nixon would have resigned

Question 17

Key cases

Answer 17

New York Times v United States (1971)

Roe v Wade (1973)

US v Nixon (1974)

Question 18

What was the main focus of the Renqhuist Court?

Answer 18

Associated with being more conservative and exercising judicial restraint, Heard fewer cases than its immediate predecessors, reducing its political impact

Associated with upholding the expansion of federal power that had started under FDR in the 1930s

Question 19

Key cases

Answer 19

US v Lopez (1995)

US v Morrison (2000)

Bush v Gore (2000)

Question 20

Describe the Roberts Court in recent years

Answer 20

Has been more conservative than the Renqhuist court, and became even more so under the Trump presidency due to the three appointments he was allowed to make

Scalia was replaced by Gorsuch in 2017, maintaining the balance of the court. Swing justice Kennedy was replaced by the clearly conservative Kavanaugh, swinging the balance of the court in a conservative direction. The replacement of the liberal RBG with conservative ACB made the court even more conservative, leaving 3 liberal justices to the 6 conservative justices on the bench

Question 21

Make the case that consensus is the norm within SC rulings

Answer 21

Not all decisions follow rigidly ideological lines

Between 2000-18 a unianimous decision was more likely than any other type of decision – averaging 36% of all decisions

Even when the court was not completely unanimous, there were other kinds of overwhelming majorities, with 7-2 or 8-1 judgments making up another 15% of the proportion

5-4 decisions only occurred in 19% of cases

Strong majorities even occur in some of the most contentious and controversial cases. In 2018, by a 7-2 margin the court found in favour of the baker in the case of Masterpiece Cakeshop v Colorado Civil Rights Commission. This concerned the baker’s refusal to bake a wedding cake for a same sex couple

Question 22

Give some of the reasons why there has been a tendency for consensus within the Roberts court

Answer 22

The Chief Justice prefers unianimous decisions for legal clarity and to provide clear guidance to the lower courts. He greatly values the reputation of the court as an institution: ‘Judges are like umpires, umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules’

Many of the cases it deals with are concerned with technical legal issues or disagreements between lower courts on how to interpret statute law or legal provision. An important role of the court is to enforce legal norms and bring uniformity to the enforcement of federal law. For these reasons a unanimous or clear verdict is preferred where possible

Cases may be decided purely on strict and narrow legal grounds. This was true of the Masterpiece Cakeshop case. A key factor in the case was that the Colorado Civil Rights Commission, which took up the case against the baker, had shown anti-religious bias during its consideration of the case.

Question 23

Explain how the role of swing justice has worked in the Roberts court

Answer 23

Within the Roberts Court, both Kennedy and Roberts himself can be considered swing justices. Prior to the 2012 election it was Roberts, and not Kennedy, who sided with the liberal justices to uphold the key principles of Obamacare. The judgement in National Federation of Business v Sebelius (2012) dismissed the case that Obamacare restricted state power because it broke the interstate commerce clause of the constitution. Roberts argued that the provision was constitutionally acceptable as the federal government requirement to purchase healthcare on penalty of a fine was deemed to be equivalent to a type of tax which congress has the right to impose

Roberts surprised conservatives again in Carpenter v US (2018) when he sided with the liberals that acquiring cell phone location data was akin to a 4th amendment search and required a warrant

This trend has become even more apparent since Kennedy’s retirement. Roberts sided with the 4 liberal justices in 3 crucial cases in 2020. The cases involved workplace discrimination against LGBT people (3 separate but linked cases) a programme protecting young undocumented immigrants known as Dreamers (Department of Homeland Security vs Regents of the University of California) and abortion (June Medical Services LLC v Russo), where the court struck down very restrictive abortion laws in Louisiana which would have left the state with just one abortion clinic

Roberts faced harsh criticism from the right. Following the abortion ruling, Senator Ted Cruz said ‘Chief Justice Roberts is at it again with his political gamesmanship. This time he has sided with abortion extremeists who care more about providing abortion on demand than looking after women’s health’