16 The Judicial Branch of Government Flashcards
(124 cards)
1
Q
What are two cases where partisan gerrymandering was legalized?
A
- 2019 Rucho v Common Cause
- 2019 Lamone v Benisek
2
Q
What are the two constitutional roles of the SCOTUS?
A
- Interpreting the Constitution
- Protecting citizens’ rights
3
Q
What are two examples of judicial independence once appointed?
A
- Gorsuch and Kavanaugh - in 2020, ruled that the POTUS does not have an absolute right to withhold tax returns
- David Souter - unexpectedly liberal?
4
Q
What are two examples of SCOTUS judicial review on POTUS?
A
- 2008 Boumediene v Bush - foreign nationals detained as terrorist suspects may challenge their detentions in federal courts
- 2016 United States v Texas - plan to delay deportation of 5 million illegal immigrants by executive order is illegalised
5
Q
What are two examples which show how SJC votes often foreshadow Senate votes?
A
- 1993 - RBG got a unanimous clearance by SJC and was confirmed 96-3 by Senate
- 1991 Clarence Thomas - got 7-7 committee vote and was confirmed 52-48
6
Q
2 good diversity facts for the Court? Compare to UKSC?
A
- 3 African Americans have served on the Court, including 2 at the moment such that the representation of African Americans is 22%, higher than 13% of the real population
- Women currently represent 4/9 - 44%
7
Q
What are the two main ways of interpreting the Constitution?
A
- Strict constructionism
- Loose constructionism
8
Q
What are two reasons the Court may have effectively fewer than 9 members?
A
- Recusal
- Vacant slot (pending Senatorial approval)
9
Q
What is the step process to become a SCOTUS judge?
A
- Presidential nomination
- Senate confirmation
10
Q
What are three facts about Dobbs v Jackson 2022?
A
- Overturned Roe v Wade
- In response to a restrictive Mississippi law banning most abortions after 15 weeks
- As of 2024, abortion is greatly restricted in 16 states
11
Q
What are three facts about Gonzales v Carhart 2007?
A
- Doctors challenging PBABA 2003, a federal regulation on third trimester partial birth decapitation abortions
- 5-4 judicial restraint upheld the ban
- All 5 in the majority were Catholic men (just saying)
12
Q
What are three facts about Obergefell v Hodges 2015?
A
- James Obergefell married his husband in Maryland, but Ohio didn’t recognize their union. SCOTUS accepted several cases together of the same nature
- 14th Amendment invoked with equal protection
- Seemingly a conflict with 1A right to freedom of religion
13
Q
What are three facts about Planned Parenthood v Casey 1992?
A
- Planned Parenthood v Robert Casey, Governor of PA, trying to introduce abortion restrictions
- Conservative majority - but took stare decisis
- However, did allow first trimester regulation, so long as it was not an ‘undue burden’
14
Q
What are three facts about Roe v Wade?
A
- Challenging a Texan Law to ban abortion
- Court ruled 7-2 that abortion in the first trimester was legal, in the second trimester could be regulated but only in the interests of the woman’s health, and in the third trimester could be banned (foetal viability)
- 14th Amendment invoked
15
Q
What are three facts about 2016 Whole Woman’s Health v Hellerstedt?
A
- Challenge against TRAP laws
- 5-3 majority ruled Texas ones illegal
- New liberal justices Sotomayor and Kagan ruled with swing vote Kennedy and Breyer to secure victory
16
Q
What are three facts which show SCOTUS is not as partisan as some would say?
A
- 2018-19 less than 50% of the 5-4 decisions had a full 5 justice conservative majority.
- 2018-19All conservatives voted with the liberals at least once in a 5-4 ruling
- 2022-23 - 48% unanimous
17
Q
What are the powers of the Chief Justice?
A
- Eponymous court
- Decides which Justice will write opinions on cases in which the Chief Justice is in the majority
- Administers the Oath of Office at Presidential inaugurations, and chairs impeachment proceedings
18
Q
What are three ways the SJC makes its decision?
A
- Witnesses are called to attest to the suitability of the candidate
- The candidate is brought for a televised hearing (basically an interview)
- The committee votes on recommendation
19
Q
What are four arguments SCOTUS is not too politicised?
A
- Judicial independence once appointed e.g. David Souter
- Judicial activism may be necessary where FedGov action has failed e.g. Brown v Topeka
- Any SCOTUS judgment can be overturned by amendment e.g. 16th Amendment
- Many decisions are unanimous or apolitical in nature
IAAU
20
Q
What are four arguments that SCOTUS is too politicised?
A
- Highly politicised process e.g. stats on recent appointments - ACB first to get no minority party votes for a long time
- Too big an influence on frontline politics e.g. Bush v Gore
- Federal government grows at the expense of state rights
- Most rule with their POTUS’ ideology
PIPS
21
Q
What are four arguments that the Senate appointment process is fit for purpose?
A
MUPI
- Unqualified nominees can be stopped e.g. Miers
- Misdemeanours etc. e.g. Douglas Ginsburg 1987 and cannabis can be spotted
- Provides an important way to ensure judicial independence e.g. Robert Bork rejected 1987 for being too partisan
- Given the importance of the SCOTUS, it is actually arguably important for the rule to be somewhat politicised so that it is under greater scrutiny
22
Q
What are four arguments that the Senate confirmation process is unfit for purpose?
A
- Politicisation e.g. Trump and Federalist Society nominees
- Scrutiny lacking in sexual misconduct e.g. Kavanaugh and Thomas
- Partisan support
- Off-putting for qualified candidates
23
Q
What are four facts about Brown v Topeka 1954?
A
- 13 African American parents brought this case due to the fact their children were bussed in Topeka, Kansas
- NAACP supported the challenged, with Thurgood Marshall, future SCOTUS associate justice, acting as chief counsel
- Unanimously overturned Plessy v Ferguson 1896
- Cited 14th Amendment equal protection clause due to ‘intangible’ differences
24
Q
What are five abortion related SCOTUS cases?
A
- 1973 Roe v Wade
- 1992 Planned Parenthood v Casey
- 2007 Gonzales v Carhart
- 2016 Whole Woman’s Health v Hellerstedt
- 2022 Dobbs v Jackson County Women’s Health Organisation
25
What is the Clarence Thomas controversy?
Dr Anita Hill accused Thomas of sexual misconduct. Called the Senate Judiciary Committee hearing a "high-tech lynching for uppity blacks who in any way think for themselves"
Potential weakness of the process - could accuse the process of partisanship, but was he really a sexual offender?
26
What is a consequence of Brown v Topeka?
1957 Little Rock incident and Eisenhower escort
27
What is a counter-evaluation to the idea that originalists are often conservative?
Neil Gorsuch - pointed out that originalist rulings are not always conservative
28
What is the current balance of SCOTUS?
6-3 Conservative majority
29
Who is the current Chief Justice and what is a comment about him?
John Roberts since 2005
Seems like a decent chap. Called in March 2025 for Trump to stop threatening impeachment of independent justices
## Footnote
Seems like a decent chap. Called in March 2025 for Trump to stop threatening impeachment of independent justices
30
What is the effect of TRAP laws?
By 2017, 6 states had only one abortion provider
31
Evaluation of the SJC questionnaire?
Poor performance at this stage can get one off to a bad start e.g. Harriet Miers contradictions
32
Evaluation on the first stage of the appointment process, the Presidential scrutiny stage?
This is arguably the hardest part of the process, with most of the scrutiny here
33
Evaluation on the Presidential scrutiny stage?
Can miss things - for instance, in 1987, Douglas Ginsburg was announced to the public as Reagan's nominee, only for it to be discovered that he had used marijuana whilst a law professor
34
What is evidence that recent SCOTUS diversity is limited?
1. Only recent - e.g. only ever 3 African-American justices and only 6 women in history
2. Only ever been 1 Hispanic
35
What is evidence that Trump's strategy to get rid of Roe v Wade initially failed?
50-48 victory of Kavanaugh - deciding vote Susan Collins only went for Kavanaugh because he said he would accept stare decisis in cases of abortion law. 2018
36
What is an example of the 1st Amendment being used to uphold rights in a SCOTUS case?
2010 Citizens United v FEC or 2014 Burwell v Hobby Lobby Stores Inc (ACA cannot be used to force people to supply money to contraceptive schemes)
37
What is an example of the 2nd Amendment rights being upheld by SCOTUS?
DC v Heller 2008 - handgun carry law overturned
38
Example of a highly partisan case that shows the politicisation of SCOTUS, as well as the Court intervening in the electoral process?
Bush v Gore 2000 - 5-4 ruling, all conservative justices in Bush's favour and all liberal in Gore's. RBG "I dissent" not "I respectfully dissent"
39
What is an example of a law designed to get the SCOTUS' attention before banning it?
Alabama enacted a near total abortion ban - federal courts automatically blocked, but states appealed up to get to SCOTUS
40
What is an example of a loose constructionist?
Stephen Breyer - 2014. Constitution should be interpreted 'in light of its text, purposes and our whole experience'
41
What is an example of a POTUS who openly confessed to appointing justices of a certain political persuasion?
Trump - said he would only appoint those recommended by Federalist Society
42
What is an example of a time SCOTUS disrupted federalism?
Overrule state laws in 2008 DC v Heller, 1973 Roe v Wade and 2015 Obergefell v Hodges
43
What is an example of a time the SCOTUS seemingly ruled against rights?
Baze v Rees 2008 - ruled lethal injection was not a cruel/unusual punishment
44
What is an example of an 'activist court'?
Warren Court 1953-1969
1954 Brown v Topeka and others
## Footnote
1954 Brown v Topeka and others
45
What is an example of an amicus curiae brief?
200 Congresspeople signed one in 2020 asking for SCOTUS to remove abortion rights
46
What is an example of a federal case?
2018 Murphy v National Collegiate Athletic Association
Overturned 1992 law prohibiting sports gambling at state levels because it violates states rights under the commerce clause
## Footnote
Overturned 1992 law prohibiting sports gambling at state levels because it violates states rights under the commerce clause
47
What is an example of how a swing vote can arise from different judicial philosophies?
John Roberts 2005 - said at his hearings he had no strict constitutional philosophy and has acted as a key swing vote
48
What is an example of how the court has become more partisan since Kennedy left?
2019 - Court ruled in two consecutive cases that partisan gerrymandering was not illegal
Partisan judgement
49
What is an example of how Kennedy was a swing vote?
1. Wrote majority opinion for Obergefell v Hodges 2015
2. Conservative views on campaign finance
50
What is an example of how originalism is not necessarily conservative?
2020 - Gorsuch writes majority opinion on ruling outlawing sexual orientation discrimination by employers
51
What is an example of how the political significance of the SCOTUS membership is closely watched?
News before RBG died full of reports about her health
52
What is an example of how the Presidential scrutiny stage can be one of the most intensive parts of the appointment process?
1988 - Justice Anthony Kennedy, running for Associate Justice, was interviewed by the FBI for more than ten hours, on topics ranging from his sexual history to his treatment of animals
53
What is a fact about racial representation on SCOTUS?
First African American was Thurgood Marshall, second was Clarence Thomas. Ketanji Brown-Jackson in 2022 was the first black woman appointed to the Court
54
What is a fact which shows SCOTUS appointments have become more partisan in recent years?
2020 - Amy Coney Barrett becomes first SCOTUS nominee in more than 150 years not to receive a single vote from the minority party
55
What are the facts about the Garland nomination and why is it widely seen as hypocrisy?
Nominated by Obama in March 2016. GOP refused to hold hearings, saying it was too close to an election
When RBG died in September 2020, they fast-tracked ACB through COTUS, because GOP ran COTUS at the time
56
What was the first of restrictive Trump era abortion state laws to reach SCOTUS and what happened?
Court in Medical Services v Russo 2020
Court ruled 5-4 that restrictions were unconstitutional
## Footnote
Court ruled 5-4 that restrictions were unconstitutional
57
How does a case reach SCOTUS?
1. First, cases are tried in a district court.
2. Following a district court ruling, one may apply to the Court of Appeals, in one of the circuits.
3. The judgement reached here can then be appealed to the Supreme Court, which accepts it if it is judged to be of constitutional significance.
58
How is membership of SCOTUS apportioned?
1 Chief Justice
8 Associate Justices
59
How many circuits are there in the US?
13 - 11 regional, DC and Federal
60
What happens if the court is tied?
Lower court judgment stands
61
What is the judicial branch?
The system of courts that interpret and apply the nation's laws
62
What is judicial restraint?
Judges take a deferential attitude and only tend to intervene when clear violations of past precedent have occurred.
63
What is judicial review?
The process by which SCOTUS judges decide whether a law or government action is constitutional.
64
What is a landmark ruling?
SCOTUS judgments that establish new legal principles or fundamentally alter Constitutional interpretation.
65
What are three facts about loose constructionism?
1. The interpretation of the document should be applied to a modern context
2. Favor the idea of a living constitution that can be updated
3. Democratic presidents tend to appoint
66
What is the main argument against loose constructionism?
Power grab for unelected justices
67
What is the main argument against strict constructionism?
Prevents social change
68
Who is the most famous originalist and what is their quote?
Antonin Scalia 1986-2016
Constitutions means "what it meant when it was adopted"
## Footnote
Constitutions means 'what it meant when it was adopted.'
69
What happens once the POTUS has announced their pick?
Senate Judiciary Committee holds hearings
70
What is the opposite of judicial restraint?
Judicial activism
71
What is originalism?
A view that, where the Constitution is interpreted, it is interpreted according to the intentions of the Founding Fathers.
72
Do liberals often overturn precedent?
No. Only when necessary.
73
What is the relation of landmark rulings to rights?
Many landmark rulings advance rights e.g. Roe v Wade.
74
What is stare decisis?
Allied to the idea of judicial restraint. 'To stand by things decided'. Do not unnecessarily overrule precedent.
75
What are statistics which show increased partisanship in SCOTUS appointment hearings?
1986-2005 - 1/6 of justices received fewer than 75 votes
2006-present - no justice has received more than 75 votes
76
What are three facts about strict constructionism?
1. The Constitution is a precise legal document. Rulings only make reference to the precise wording of the original document.
2. Generally make conservative judgments.
3. Often linked to originalists.
77
What is the Supreme Court?
The highest federal court in the USA. The final court of appeal.
78
What statistics show increased partisanship in SCOTUS appointment hearings?
1986-2005: 1/6 of justices received fewer than 75 votes. 2006-present: no justice has received more than 75 votes.
79
What are the three facts about strict constructionism?
1. The Constitution is a precise legal document. Rulings only make reference to the precise wording of the original document. 2. Generally make conservative judgments. 3. Often linked to originalists.
80
What is the Supreme Court?
The highest federal court in the USA. The final court of appeal and the court of constitutional interpretation.
81
The 5-4 conservative majority before ACB also made rulings against Trump, e.g....
Overruled his attempt to end DACA in 2020.
82
What are the Court of Appeals and the SCOTUS grouped together as?
Appellate courts.
83
Those who believe the SCOTUS is acting beyond its constitutional role often accuse it of being a...
A quasi-legislative body.
84
What does US judicial review involve?
Over-ruling actions it judges to be in violation of the Constitution.
85
What allows the SCOTUS to uphold rights?
1. Final court of appeal for rights cases. 2. Rule actions in violation of rights outlined in the Constitution.
86
What are the results of all SCOTUS nominations since the beginning of the Court?
126 confirmed, 27 not confirmed.
87
What cases does SCOTUS accept?
Only cases of constitutional significance that have reached the court via appeal.
88
What did ACB say in confirmation hearings that energized conservatives?
She did not view Roe v Wade as a 'super precedent.'
89
What does it mean to say SCOTUS is the guardian of the Constitution?
Although the constitution is codified, the meaning is not always clear. SCOTUS interprets.
90
What does POTUS' team screen for in selecting a nominee?
1. Personal and academic background. 2. Previous rulings.
91
What happened to the filibuster rules on appointments?
2013: Democrats scrap all appointment filibustering EXCEPT from the SCOTUS. 2017: fearing a Neil Gorsuch filibuster, GOP extends the filibuster blanket motion.
92
What is a living constitution?
The idea that the meaning of the Constitution is dynamic and can be updated to fit modern contexts and needs.
93
What is a TRAP law? Example?
Targeted Regulation of Abortion Providers
State laws designed to undermine abortion without explicitly banning it e.g. corridor widths
94
What is the 'nuclear option' evidence of?
Increased partisanship - justices used to be a lot more bipartisan.
95
What is the 'nuclear option'?
Cloture option can be invoked by simple majority in appointment cases.
96
What is the 'swing vote'? Who was it?
The justice who often flip-flops between conservative and liberal and is hence interesting
Anthony Kennedy 1988-2018 - replaced by Kavanaugh
97
What is the first thing the SJC demands of prospective nominees?
Completion of a lengthy questionnaire, which at times is basically an exam on key legal cases, to ascertain their opinions on key rulings.
98
What is the minimum number of justices SCOTUS needs to try a case?
6.
99
What is the most powerful institution in US politics and why?
The Supreme Court. They can overrule anyone and everybody, even democratically elected politicians.
100
What is the significance of the SJC vote?
Cannot compel the Senate to vote a certain way, but a good indicator of what will happen.
101
What is the specific purpose of the Supreme Court?
Uphold the Constitution.
102
What SCOTUS function does judicial review pertain to?
Ensuring Constitution is upheld.
103
When does a seat on SCOTUS become vacant and why?
Only when a judge dies, retires, or is impeached.
Life tenure according to Article 3.
104
When was judicial review set up?
1803 Marbury v Madison.
105
When was the last time the POTUS withdrew a candidate?
Harriet Miers, 2005.
106
When was the last time the Senate formally vetoed a candidate?
1987 - Robert Bork stopped.
107
Where do most applicants to SCOTUS come from and evidence?
Court of Appeals
2021 - 8/9 SCOTUS judges had previously sat on the Court of Appeals
108
Which court is often cited as being pro-states in federal terms?
Rehnquist Court 1986-2005.
109
Who appointed David Souter and eval?
George HW Bush (THE FIRST ONE). He was a good example of judicial independence - became a liberal.
110
Who chairs SCOTUS?
Chief Justice.
111
Who had a similar experience to Clarence Thomas?
Brett Kavanaugh - 2018. Dr Christine Blasey Ford accused Kavanaugh of sexual assault when he was 17 and her 15. Trump mocked Dr Ford at a rally. Vote was 50-48 in the Senate.
112
Who is most likely to practice judicial restraint?
Conservative justices.
113
Who is often accused of judicial activism?
Liberals.
114
Who is the new 'swing vote' and eval?
John Roberts - has voted against Trump on transgender and abortion.
115
Who was not a judge before becoming a SCOTUS judge? Caveat?
Elena Kagan. She was solicitor general.
116
Why are the circuit Court of Appeals often more influential than SCOTUS?
SCOTUS refuses to hear many of the cases which seek application to it, so most of the time the judgment of Court of Appeals is final.
117
Why did it used to be easier to stop SCOTUS nominees?
60 votes needed because it could be filibustered.
118
Why do Thomas and Kavanaugh show weaknesses in the Senate confirmation process?
Both had serious allegations of sexual misconduct. Both were confirmed.
119
Why is 2010 FEC v Citizens United controversial?
Strict constructionism? I'm not sure it is.
120
Why is getting rid of filibuster not all that significant?
Can still be stopped at SJC e.g., Merrick Garland.
121
Why is the SCOTUS enormously powerful compared to UK courts?
Constitutional sovereignty + judicial review means that state or federal actions can be struck down.
122
Why was Gonzales v Carhart significant?
Create deliberately violating laws to attract attention of SCOTUS, who would then apply restraint and allow them to stand.
123
Why was Warren activistic and evidence?
He was an ex-politician, Governor of California. Chaired meetings before Brown v Topeka to ensure a unanimous ruling.
124
DC v Heller
1. 2008
2. The 2nd Amendment extends beyond organised militias to individuals
3. 5-4
