Supreme Court Flashcards
‘The Supreme Court has become too politicised’
2023 poll: 62% believe too politicised
Yes:
Ideology
Political decisions
Quasi-legislative powers
No:
Lack of loyalty
Judicial independence
Judicial restraint
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Ideology:
- Strict constructionists = const. should be interpreted as inflexibily as possible + close to ff’s wishes:
– Justice Scalia = “a constitution is not meant to facilitate change, it is meant to impede it”
- Loose constructionists = ‘living document’, flexible, up to date
– influential in Commerce Clause (grants Congress power to regulate interstate commerce)
– Obama = Sonia Sotomayor, Elena Kagan
– Trump = Neil Gorsuch, Brett Kavanagh
– Bush HW = David Souter, Clarence Thomas
– Clinton = Ruth Bader Ginsburg, Stephen Breyer
– Even when Truman (Dem) appointed Harold Burton (Rep) to Court, he knew that governor of Ohio would replace Burton in the Senate with a Democrat.
– Senate Confirmation vote:
– Sonia Sotomayor = 9-31 (reps) 59-0 (dems)
– Brett Kavanaugh = 9-0 (reps) 1-48 (dems)
– Amy Coney Barrett = 52-1 (reps), 0-47 (dems)
Political decisions:
– Bush v Gore (2000)
– Ronald Dworkin said about Bush v Gore = “a series of embarrassingly bad decisions”
– SC criticised by Liberals in 20th C for striking down parts of FDR’s New Deal because of their Free Market views
- Biden v. Nebraska
ruled Biden’s use of executive powers to cancel more than $400 million of student debt exceeded his authority (const justices formed maj, none of liberal justices agreed)
– Hughes noted that “the Chief Justice of the United States should not only know the law but that he should understand politics and government.”
Quasi-legislative powers:
- Idea of judicial supremacy (Sup Court has the final say about what the Constitution allows)
– “We are under a Constitution, but the Constitution is what the judges say it is.” Charles Evans Hughes 1928
– Marbury v Madison = its the “duty of the Judicial Department to say what the law is.”
– Brown v Board of Education (1954)
– Citizens United v FEC = ban on businesses using funds for pol. advertising unconst.
– Harper v. Virginia State Board of Elections = Virginia’s poll tax unconst.
Lack of loyalty:
– Eisenhower appointed Liberal Earl Warren = apparently referred to him as “that dumb son of a bitch Earl Warren” –> Brown v Board of Education
– Truman = “when you put a man on the SC he ceases to be your friend” - 2 noms voted against him
– George H.W Bush - David Souter made liberal decisions despite being perceived as a conservative when appointed
– Jutice Samuel Scalia = “not true” when Obama criticised SC (cons- not afraid to speak out against Presidents)
Judicial Independence:
- Being appointed not elected means they don’t have to run for election, raise money, and take a partisan stand on issues
- Salary - ‘shall not be diminished’ = $265,000
– Chief Justice = $277,700 (2020)
- Life tenure = Justice Anthony Kennedy - 30 years before retiring
– Justice William Rehnquist died in office (1972-2005)
– Ruth Bader Ginsburg - died office - 87
– Pre 1900 - 38 / 57 died in office
Judicial restraint:
= courts should avoid delivering decisions that change the meaning of a current law or government statue unless there is a clear violation of the Constitution
– Rehnquist Court often described as a restraint court (Planned Parenthood v Casey, upheld right to an abortion, continuing the decision of the Warren Court, U.S. v Lopez (argued Commerce Clause shouldn’t be expanded beyond its original meaning)
– Acceptance of racial segregation upheld in Plessy v. Ferguson
– Dred Scott v. Sandford = upheld lack of citizenship for African-Americans
– LLC v Russo = Roberts struck down a Louisiana law that would have limited abortions, as he argued that it went against the precedent in Whole Woman’s Health v Hellerstedt
‘The Supreme Court does not adequately protect people’s rights’. Discuss
YES:
- Social + civil rights
- Privacy
- Political rights
NO:
- Economic rights
- Civil rights
- 2nd amendment
✓ Civil + social rights
– Brown v Board of Education
– Roe v Wade
– Obergefell v. Hodges - protected same-sex marriage
– Loving v Virginia = laws banning inter-racial marriage uncont.
✓ Privacy
– Griswold v. Connecticut = found right to privacy
– Eisenstadt v. Baird (1972) = extended right to privacy for unmarried women for contraceptives
– Lawrence v Texas (2003) = Texas law banning consenting homosexual adults from engaging in sexual acts unconst. (right to privacy)
– Planned Parenthood v Casey = upheld right to abortion
– Carpenter v US (2018)= govt needs a warrant to access a person’s cellphone location history
✓ Political rights
– Gideon v Wainwright = legal rep
– Miranda v Arizona = ‘Miranda rights’ - right to remain silent
– Voting Rights Act (1965)
– Harper v Virginia Board of Elections = Virginia’s poll tax unconstitutional
– Cohen v. California = ruled allowed to use certain offensive words + phrases to convey political messages (fuck)
– Buckley v. Valeo - spending limits on pol campaigns unconst.
– Texas v. Johnson = allowed engaging in symbolic speech (e.g. burning the flag in protest)
✗ Economic rights
– The Slaughterhouse Cases (1873) = allowed Louisiana a monopoly over slaughterhouses
– Wickard v. Filburn (1942) = farmer couldn’t grow wheat beyond acreage allowed even for personal use
– Kelo v City of New London (2005) = city’s taking of private property to sell for private development qualified as a “public use” within the takings clause
✗ Civil rights
– Dred Scott v Sandford
– Plessy v Ferguson
– McCleskey v Kemp = racial disparity in death penalty not enough to constitute an 8th amendment violation
– Overturning of Roe v Wade
?
debates about the impact of the
ideological, gender and religious composition
of the Supreme Court ?!?!?
debates
over key decisions in historical and
contemporary cases
‘The Court is effective in providing oversight to the President’. Discuss.
YES:
Imperilled Presidency
Going against Pres’ wishes
Judicial review
NO:
Imperial Presidency
Pres appointments
-
‘The Court is effective in providing oversight to Congress’. Discuss.
YES:
✓ Judicial review
✓ Protect rights
✓ Judicial supremacy
NO:
✗ Can overrule
✗ Confirm appointments
✗ Federalism - ruled in favour of fed govt - expanding their power
‘The Supreme Court has become too powerful’. Discuss
YES
✓ Judicial activism
✓ Judicial review
✓ Expansion of power
NO
✗ Judicial restraint
✗ Overruled by Congress
✗ Protect rights
Judicial activism
- Idea of judicial supremacy (Sup Court has the final say about what the Constitution allows)
– “We are under a Constitution, but the Constitution is what the judges say it is.” Charles Evans Hughes 1928
– Brown v Board of Education (1954)
– Citizens United v FEC = ban on businesses using funds for pol. advertising unconst.
– Harper v. Virginia State Board of Elections = Virginia’s poll tax unconst.
Judicial review
– Loving v Virginia = laws banning inter-racial marriage uncont.
– Buckley v Valeo
– Citizens Unted v FEC
– Clinton v City of New York
– Nixon v US
Expansion of power
- Not what founding fathers intended for Sup Court to be deciding and driving law
- Granted themselves power of judicial review in Marbury v Madison
– Marbury v Madison = its the “duty of the Judicial Department to say what the law is.”
Judicial restraint
– U.S. v Lopez (argued Commerce Clause shouldn’t be expanded beyond its original meaning)
– Scalia - “const not meant to facilitate change, meant to impede it”
– “The worst thing about the ‘living Constitution,’” he said, “is that it will destroy the Constitution” - Justice Antonin Scalia
– Rehnquist Court often described as a restraint court (Planned Parenthood v Casey, upheld right to an abortion, continuing the decision of the Warren Court
– Acceptance of racial segregation upheld in Plessy v. Ferguson
– Dred Scott v. Sandford = upheld lack of citizenship for African-Americans
– LLC v Russo = Roberts struck down a Louisiana law that would have limited abortions, as he argued that it went against the precedent in Whole Woman’s Health v Hellerstedt
Overruled by Congress
– Dred Scott and Sandford overturned by 13th and 14th amendment
– Ledbetter v. Goodyear Tire & Rubber Co - paid less than male for same job - court ruled they couldn’t do anything as discrimination happened too far in the past - Obama = Lilly Ledbetter Fair Pay Act (easier to file pay discrimination suits)
– 2000: ruled FDA couldn’t regulate tobacco - bipartisan Family Smoking Prevention and Tobacco Control Act allowed fed govt to reg. tobacco
Protect rights
– Roe v Wade
– Obergefell v. Hodges - protected same-sex marriage
– Loving v Virginia = laws banning inter-racial marriage uncont.
– Griswold v. Connecticut = found right to privacy
– Eisenstadt v. Baird (1972) = extended right to privacy for unmarried women for contraceptives
– Lawrence v Texas (2003) = Texas law banning consenting homosexual adults from engaging in sexual acts unconst. (right to privacy)
