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Judicial Branch Flashcards

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1
Q

How is the SC established

A

By Article III of the US constitution - which says the judicial power of the US should be vested in one SC

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2
Q

The Supreme Court

A

The highest court of appeal in the US, the final court responsible for interpreting the Constitution.

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3
Q

What’s the main power of the SC

A

Judicial review - where the judiciary reviews the actions if the legislative and executive branches

Can also strike down unconstitutional laws

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4
Q

What is original jurisdiction ?

A

The types of cases the US SC can hear first rather than appeal from a lower court

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5
Q

What is appellate jurisdiction

A

Where the court reviews a lower courts decision

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6
Q

The Supremacy Clause

A

States all federal laws and treaties are the ‘supreme law of the land’. So federal law overrides state law if there is a conflict.

It give the SC authority to strike down laws that conflict with the US constitution or federal law

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7
Q

How many stages are the judges appointment by

A

Two stage appointment process

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8
Q

How does the appointment process begin ?

A

When a justice dies, retires or is impeached

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9
Q

Stages of appointment process

A
  • Firstly, the presidents advisors draws up a shortlist of candidates
  • The nominees are then background checked and interviewed by the FBI
  • Nominees must then be confirmed by the Senate Judiciary Committee
  • The entire Senate then votes on whether to confirm the nominee (majority needed)
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10
Q

How many senators are need to support a presidential nominee ?

A

60 out of 100 senators

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11
Q

What factors are considered when selection SC justices

A

Presidents aim to appoint justices who will share their view of how the Constitution should be interpreted, so conservative presidents nominate conservative justices and vice versa for liberal presidents

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12
Q

How has the Senate confirmation votes become more partisan

A

originally, the confirmation of SC was based on qualification, legal experience. However, in recent decades, the process has become more politicised.

Most confirmations happen with narrow, party-line votes.
EG: Ruth Ginsburg (1993) - 96-3 vote
Brett Kavanaugh (2018) - 50-48 vote

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13
Q

What was the controversy in the Merrick Garland and Amy Barrett nomination and how does it show politicisation of the courts ?

A

Obama nominated Garland to the SC in March 2016 after justice Scalia died. The Republican controlled Senate led by McConnell refused arguing it was close to an election & the next president should choose.

However, after justice Ginsburg died in Sep 2020 during an election yr, Trump nominated Amy Barrett to the SC despite the presidential election being weeks away. The same Republican Senates that blocked Garlands nomination rushed to confirm Barrett weeks before the election.

This shows how the confirmation process had become deeply politicised and damaged their neutrality.

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14
Q

What is judicial independence

A

The judiciary should be free from influence of other branches

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15
Q

How are judges independent once appointed

A

Judges have life tenures so the president has ability to influence them ends once they’re appointed, as they can’t be removed from office for making a judgment the president dislikes.

Republican President W. Bush appointed David Scouter who unexpectedly became a liberal opposed to the conservative justice Bush hoped for.

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16
Q

Limitations on the SC

A
  • Other branches have big influence over appointment and dismissals over the SC
  • Congress can impeach if they commit treason, bribery
  • SC decisions can be overturned by constitutional amendment
  • SC cannot initiate cases
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17
Q

What is stare decisis ?

A

’to stand by things decided’
The court should follow precedent - it should stick to decisions made in earlier cases.
However, the court can overturn precedent if it believes a past decision was wrong or outdated

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18
Q

Liberal US justices

A
  • Sonia Sotomayor
  • Elena Kagan
  • Ketanji Brown Jackson
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19
Q

Conservative US justices

A
  • Clarence Thomas
  • Samuel Alito
  • Neil Gorsuch
  • Brett Kavanaugh
  • Amy Barrett
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20
Q

Who is the Chief Justice ?

A

John Roberts - appointed in 2005 by George W Bush

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21
Q

How many Black Americans have sat on the SC

A

Only 3
- Thurgood Marshall
- Clarence Thomas
- Kentaji Brown

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22
Q

How many women are currently on the court

A
  • Sotomayor
  • Kagan
  • Barrett
  • Jackson
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23
Q

The nature of judicial power

A

The power of judicial review:
- Declare actions unconstitutional
- Declare laws unconstitutional (Acts of Congress or Acts passed by state legislatures)

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24
Q

Constitutional role of the SC

A
  • Interpreting the constitution
  • Protecting citizens rights
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25
What are the two ways SC justices interpret the constitution ?
- Strict constructionists - Loose constructionists
26
Strict constructionists
Believe the constitution should be followed as closely as possible and take it literally - they are similar to originalists
27
Originalists
Believe the constitution should be interpreted based on its original meaning, how the framers intended.
28
Loose constructionists
Believe the constitution should be interpreted loosely and applied to modern context and what the framers intended, this allows the interpretation to evolve overtime. They believe the constitution is a LIVING CONSTITUTION
29
What is a living constitution ?
The idea the constitution is a living document which should be interpreted according to the needs of society
30
Originalists
Tend to be more conservative and appointed by Republican Presidents. They are in favour of states rights, which limits the decision of the federal govt
31
Loose constructionists
Tend to be more liberal and are appointed by Democratic Presidents. They are in favour of a strong federal govt
32
Why might not all justices neatly identify loose or strict constructionist according to justice Sotomayor
Justice Sonia Sotomayor dismissed the focus on a living constitution, arguing the decision making process s much more complex
33
How did the Federalists society have influence over the SC while Trump was in power
Trump nominated three originalists : Gorsuch, Kavanaugh and Barrett. All were approved by a conservative pressure group; the Federalists Society. This gave them an extraordinary degree of influence over the judiciary whilst Trump was in power
34
How has the SC interpreted the 1st amendment (religion)
Burwell v Hobby lobby Store - which protected the freedom of religion. A Christian company (hobby lobby) refused to sell contraceptives and the SC rules that private companies don’t have to provide contraception is it violates their religious beliefs
35
How has the SC interpreted the 1st amendment (speech)
Citizens United v FEC - the court rules that corporations, unions etc had the same rights to free speech as individuals to make political donations
36
What is judicial restraint ?
The SC should be reluctant to strike down actions or laws by the President or Congress in order to avoid conflict
37
What is judicial activism ?
When the SC is more willing to strike down actions by the President and Congress or making decisions that lead to major political change
38
What court was said to be the leading ‘activist court’
The Warren Court, as in Brown v Topeka it struck down the doctrine ‘separate but equal’ - said it violated the equal protection clause in 14th amendment. This was huge change in the law coming from the SC
39
Example of judicial activism
Brown v Topeka
40
Example of judicial restraint
PLESSY v FERGUSON (1896) SC ruled that segregated trains were constitutional as long as facilities were provided for all races
41
What is the current court ?
Roberts Court
42
How has the SC played an important role in the development of federalism
It has made judgments that overrules state laws. In District of Columbia v Heller, the courts ruled Columbia banning handguns were unconstitutional as the right to bear arms can’t be overruled by state legislature - Roe v Wade - Obergefell v Hodges forces all states to allow same-sex marriage
43
Is judicial activism good?
- Congress & Congress sometimes act unconstitutional, if it’s ignored, sep of powers would be undermined - Tyranny of the majority : the SC should stand up for minorities - It has brought some hugely significant social changes that Congress had been reluctant to
44
How judicial activism can be bad
- Judges are unelected and lack accountability - Judges are expert in law and not social policy so maybe leave it to Congress & executive
45
Some controversial rulings
Roe v Wade Obergefell v Hodges Bush v Gore
46
Brown v Board of Education of Topeka
Overturned Plessy v Ferguson which allowed segregation under the idea of ‘separate but equal’. The court decided that it violated the 14th amendments Equal Protection Clause
47
How did Brown v Topeka represent a change in the law and what was the significance ?
Before this case, racial segregation was allowed under the Jim Crow laws established by Plessy v Ferguson. In B v T, the SC ruled that segregation is unequal & violated 4th amendment Turning point of the US civil rights & gave momentum to civil rights groups during that time (NAACP)
48
Obergefell v Hodges 2015
The court ruled that same-sex marriage is a constitutional right under the 14 amendment and all states must allow same sex marriage . As not allowing it violated the Due Process Clause and Equal Protection Clause.
49
How did Obergefell v Hodges represent a change in law and what was its significance
Before, many states banned same-sex marriage. This ruling declared all states must allow same-sex marriage. This extended constitutional rights under the 14amendment - was a landmark moment for the lGBTQ+ rights
50
UK v US appointment of justices
US justices are political appointees who are nominated by the president and confirmed by the Senate UK justices are selected by an independent selection committee before being presented to the Lord Chancellor - the US apt process is more politicised
51
UK v US tenure of justices
Both enjoy security of tenure. They can only be removed by an impeachment in the US and judicial complaints procedure in the UK
52
UK v US impact of the SC on govt and politics
Both SC have made politically controversial rulings The US SC has had a greater impact because it has the power to interpret the constitution and strike down laws passed by Congress or the states
53
UK v US impact on culture and society
the US SC has made important judgements on culture - Brown c Topeka -> end of racial segregation - Obergefell v Hodges -> made same-sex marriage legal across the US - Roe v Wade -> legalised abortion (although overturned and handed back to states)
54
UK v US Bases of powers
Article III established the US SC and gave it judicial power. US judicial review arose from striking down Act of Congress Marbury v Mad UK SC was created by an Act of Parliament, the CRA 2005 - the UK SC powers were therefore given to it by Parliament. The UK judicial review is limited as cannot strike down unconstitutional laws
55
UK v US SC Extent of powers
- Both the final court of appeal (however when uk was in EU and transitioning, the ECJ was the final court of appeal and not the UK SC) - US SC can strike down laws that infringe the BoR, UK SC can only identify law as being incompatible with the HRA and invite Parliament to redraft Unlike the BoR, the HRA isn’t entrenched in const. so Parliament could modify / scrap it
56
UK v US juridical independence
US and UK both encourage judicial independence, so judges are free from external pressure or interference - allowing them make decisions solely on the law. In both, tenure ensures that the position of justices is protected from govt interference
57
Examples of UK and US SC making judgements against the govt
US - the US SC unanimously rejected legal challenges to the 2020 election results, despite Trumps insistence that the vote was ‘rigged’ UK - the UK SC defended the rights of Parliament against the govt in the two Miller cases
58
UK v US SC politicisation examples
US - Bush v Gore, recount in Florida handing Bush the victory UK’s daily mail newspapers accused high courts as being ‘enemies of the people’ in 2016, when they rules the govt needed parliaments consent to trigger Brexit.
59
Structural similarities in judicial independence
- security of tenure - separation of powers gives the judiciaries independence from other branches
60
Structural differences in institution
- Entrenched laws in the US constitution have produced a more powerful judiciary than the UK - Parliamentary sovereignty limits the power of the the UK SC as it can’t override Parliament. The sovereignty of the US constitution means the SC can strike down laws passed by Congress
61
Cultural differences/similarities in US and UK Courts
- Both courts prize the rule of law judicial independence

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