Unit 4 Topic 4 - The Judiciary

Question 1

Explain membership of SCOTUS

Answer 1

• Key Points:
o One Chief Justice, eight associate justices
o Number has been fixed by Congress and remained unchanged since 1869
o Members are appointed by the President
o Subject to Senate confirmation by a simple majority
o Hold office for life (during good behaviour – Article 3), can be impeached, tried and removed by Congress, otherwise leave voluntarily or on death

Question 2

Examine current membership of SCOTUS

Answer 2

• Conservative
o John Roberts. The Chief Justice, he is moderate and occasionally votes with the liberals e.g. Sibelius (Obamacare)
o Clarence Thomas. He is viewed as the most conservative member of the court
o Samuel Alito. One of the most conservative Justices but has a libertarian streak e.g. dissented from conservatives in Snyder vs. Phelps (free speech case)
o Kennedy - swing. A moderate conservative, though he has voted pro-gay-rights and pro-choice. He is regarded as the swing vote following O’Connor’s retirement (though more liberal). Central?
• Liberal (generally less extreme than conservatives)
o Stephen Breyer. According to empirical data, the least liberal of the liberal wing
o Elena Kagan. Slightly more liberal according to studies
o Sotomayor. Rush Limbaugh described her as ultra-liberal
o Ginsburg. One of three women, she is the most liberal according to studies.

Question 3

Explain the appointment process for SCOTUS

Answer 3

1. President must wait for a vacancy to occur, roughly every 2 years, though Carter made no appointments and none between 1994-2005
2. President’s closest aides search for suitable candidates
3. Shortlist is drawn up and candidates are subjected to a detailed interview and FBI background checks
4. President announces the nominee at a public White House gathering
5. ABA traditionally offer a professional nominee rating
6. Nominee plus witnesses appears before a hearing at the Senate Judiciary Committee
7. SJC votes on whether or not to recommend confirmation
8. Nomination is debated on the Senate floor
9. Final vote taken – simple majority required for confirmation

• Main pools of recruitment
o Federal appeals court e.g. Sonia Sotomayor
o The State Courts e.g. Sandra Day O’Connor 1981-2006
o Executive branch e.g. Elena Kagan
o Academia e.g. Elena Kagan
• 7 judges have served in the federal appeals court, Kagan served as solicitor general in the Justice Department and Dean of Harvard Law School
• Senate has rejected 12 nominees – Robert Bork in 1987, Nixon lost two nominees – Clement Haynsworth 1969 and Harrold Carswell 1970

Question 4

Explain the philosophy of supreme court justices

Answer 4

• Loose Constructionists
o Liberal
o Read into the Constitution, favour federal government power
o Tend to be appointed by Democrats
o E.g. Ginsburg, Breyer, Sotomayor, Kagan
• Criticisms:
o Legislate from the bench. Gives the court an appearance of a legislator e.g. the Supreme Court has established that gay marriage is legal through a landmark decision in Obergefell vs. Hodges, instead of the use of an amendment to allow the federal government to set the conditions for a valid marriage, and not the state. This therefore undermines separation of powers. Also, Judges are expert in law, not social policy, and consequently judge-made social policy is often ineffective and unworkable in practice.
o Imperial judiciary. The court is unelected and unaccountable, and undermines its legitimacy if it
is seen to be advancing its own agenda e.g. Citizens United, where the Supreme court declared unconstitutional the Bipartisan Campaign Reform Act but which had been supported in both houses of Congress
o Amendment process. All other law is ‘dead’; its meaning does not alter over time and further legislation must be passed for reforms to be made. The constitution in particular is supposed to embody enduring values – if it requires alteration, there is an amendment process
• Strict Constructionist
o Conservative
o Strict/literal interpretation of the Constitution, favour states’ rights
o Tend to be appointed by Republicans
o E.g. Roberts, Thomas, Alito, Scalia (dead)
• Some exceptions, George HW Bush didn’t realise David Souter appointed in 1990 would be one of its most liberal members, Anthony Kennedy is less easy to classify – swing justice
This can lead to issues:
• Doctrine of absurdity. The argument that the literal interpretation of statutes can lead to unusual, or even absurd results. E.g.
• Outdated. Can lead to the Constitution falling behind popular opinion e.g. gay marriage would never have occurred with a strict constructionist approach though opinion falls marginally in favour of it

Question 5

Examine factors affecting SCOTUS appointments

Answer 5

• Ideological leaning. The president will want a nominee who corresponds as closely as possible to his own judicial outlook; in the recent past, nominees of Republican presidents have arguably been more obviously ideological than those put forward by Democratic presidents. E.g. Obama nominated Sotomayor.
• Judicial credentials. Often nominees will have served as a judge; if they have not, they need to have a certain level of judicial credibility, as the reaction to the Harriet Miers nomination shows. Likewise, all bar Kagan served in federal courts
• Senate composition. The president will need to consider the reaction of a Senate controlled by the opposition party e.g. Garland is not an extreme liberal

Question 6

Explain issues with appointment to SCOTUS

Answer 6

• Politicised by President. President’s choose nominees who whose political and judicial philosophy match their own e.g. Obama, liberal, nominating liberal Garland. Can be more specific as president may ‘litmus test’ candidates, scrutinising previous judgements to make sure nominee shares the same views e.g. Bush’s nomination of Souter dubbed a ‘home run’ for conservatives due to Souter’s views on abortion. Bush forced to deny Souter chosen for this reason as he had ‘too much respect for the Supreme Court to focus on specific issues’.
• Politicisation by Senate. Senate must confirm nominees, who are likely to have own political agenda, and may criticise or try and embarrass candidates who do not match their political views. E.g. Bork was rejected with Democratic Senators mobilising women’s groups against him.E.g. 2 In Alito’s nomination, the president’s party threw soft questions at him, not trying to probe or see if he was an appropriate candidate. Indeed Justices are frequently voted on party lines e.g. not a single Democrat in the Judiciary voted in favour of Alito
• Meaningless. Kagan said the process was ‘vapid and hollow’. This is for two reasons:
o Since Bork’s rejection as he said Roe vs. Wade had no ‘constitutional grounding’, nominees have been afraid to associate themselves with controversial opinions e.g. Sotomayor repeatedly affirming that as a justice she would just apply the law rather than take positions on controversial topics.
o Nominees aren’t accountable to what they say once they enter office e.g. Roberts said in his nomination it is a ‘jolt to the legal system when the court overrules a president’ but voted in favour of Citizens United

Question 7

Explain the power of judicial review

Answer 7

• Bill of rights added to alleviate fears that the Federal government had too much power over the states and individuals, but not until the 14th 1868 that the Constitution explicitly restricted the actions that states could take against individuals
o Done through the equal protection clause and the due process clause
• The Court’s use of the Due Process clause in the 14th – preventing states depriving persons of ‘life, liberty or property without due process of law’ – has enabled the Court to review and strike down state legislation
• Using this power, the Court becomes the guarantor of civil rights and liberties.
• Also means the court can become a political institution e.g. George W. Bush vs. Gore (2000) the Court ruled the manual recount scheme devised by Florida was unconstitutional, violating the 14th Amendment, and essentially handed Bush the election.

• Could also cause the Court to become a quasi-legislative power e.g. in Obergefell vs.Hodges gay marriage was legalised.
• Criticisms
o Constitution. It is not a part of the constitution and was awarded by the court to itself.
o Legislate from the bench. Gives the court an appearance of a legislator e.g. the Supreme Court has established that gay marriage is legal through a landmark decision in Obergefell vs. Hodges, instead of the use of an amendment to allow the federal government to set the conditions for a valid marriage, and not the state. This therefore undermines separation of powers. Also, Judges are expert in law, not social policy, and consequently judge-made social policy is often ineffective and unworkable in practice.
o Imperial judiciary. The court is unelected and unaccountable, and undermines its legitimacy if it is seen to be advancing its own agenda e.g. Citizens United, where the Supreme court declared unconstitutional the Bipartisan Campaign Reform Act but which had been supported in both houses of Congress

Question 8

Explain judicial activism

Answer 8

Judicial activism
An approach to judicial decision making which holds that a judge should use his or her position to promote desirable social ends. Judicial activism also sees the Court as an equal partner with the legislative and executive branches of government, and there is no need for the Court to be deferential to the other branches.

Question 9

Explain judicial restraint

Answer 9

An approach to judicial decision making which holds that a judge should defer to the legislative and executive branches, and should put great stress on the precedent established in previous Court decisions and should only overrule either its own precedents or the other branches of government in the most egregious cases of faulty judgment or constitutional violation.
• Criticisms:
o Conservative critics of judicial restraint would argue that deference to the elected branches may mean that serious breaches of the constitution, such as ‘Obamacare’, are sanctioned, significantly altering its character
o Liberal critics would argue that the electoral incentive for politicians to avoid alienating significant sections of the electorate means that archaic and repressive legislation is unlikely to be repealed, especially by state legislators; consequently if the court is willing to overturn only the most flagrant breaches of the constitution, cases such as Plessy v Ferguson show that access to basic rights can be denied, potentially indefinitely

Question 10

Explain formal constraints on SCOTUS

Answer 10

• Constitutional amendments. They can overturn Supreme Court decisions e.g. the 16th Amendment authorising a federal income tax reversed a Supreme Court decision declaring federal income tax unconstitutional.
• Legal process. Judges can only decide matters that are brought to them in the form of legal cases and will not offer advisory opinions e.g haven’t been able to . Likewise, Judges only consider cases where their decision will make a real difference i.e. cases in which affect a considerable number of people and it is claimed that considerable harm has been caused.
• Congress. The Lilly Ledbetter Fair Pay Act overturned a Supreme Court decision

Question 11

Explain informal constraints on SCOTUS

Answer 11

• No enforcement capacity. There have been many examples of the Court’s decisions being ignored or actively resisted, such as the refusal by southern States to end racial segregation in the 1950’s and 60’s.
• Public opinion. Striking down New Deal legislation in the 1930’s created the impression that the Judges were out of touch with ordinary people which undermined the Court’s status. Want to avoid political controversy e.g. Schiavo case

Question 12

Explain due process (protection of the bill of rights)

Answer 12

• It is understood to refer to the principle of limited government. Substantive due process demands that the substance of the law must not be arbitrary, unreasonable or unconstitutional; procedural due process demands that the process of the law must be fair.
• The Supreme Court has used this provision, outlined in the 14th Amendment, to ‘incorporate’ the Bill of Rights restrictions originally imposed on the federal government, thereby applying these provisions to states as well. The Court use of ‘due process’ - preventing states from depriving persons of ‘life, liberty etc. without due process of the law’ - has enabled the Court to review and invalidate a wide range of state legislation.

Question 13

Explain the first amendment and its protection

Answer 13

First Amendment: freedom of religion
• Lee v Weisman 1992: the Court declared prayer at public school graduation ceremonies unconstitutional
• Zelman v Simmons-Harris 2002: upheld Ohio’s ‘school voucher’ programme as being neutral in terms of religion
1st Amendment: freedom of speech and expression
• Texas v Johnson 1989: a Texas state law forbidding the burning of the US flag was declared unconstitutional by the Court (George HW Bush described the decision as ‘dead wrong’)
• Citizens United v Federal Election Commission 2010: the Court ruled that in terms of rights of political speech (and thus making financial donations to political campaigns), business corporations have the same rights as individuals, overturning provisions of the Bipartisan Campaign Reform Act
• Snyder v Phelps 2011: upheld the right of a fringe church group to stage anti-gay protests at military funerals

Question 14

Explain the second amendment and its protection

Answer 14

2nd Amendment: right to bear arms
• United States v Lopez 1995: declare the 1990 Gun Free School Zones Act unconstitutional, stating Congress had exceeded its power under A1 S8 of the Constitution, implications for the scope of federal government power over state and local jurisdictions
• District of Columbia v Heller 2008: Declared unconstitutional a law passed by the District of Columbia in 1976 banning the ownership of handguns and restricting shotgun ownership, court stated for the first time that the right to keep and bear arms is an individual rather than a collective right

Question 15

Explain the fifth amendment and its protection (right to silence)

Answer 15

• Miranda v Arizona 1996: the court interpreted the 5th right to remain silent as extending to the right to be reminded of that when arrested
• Dickerson v United States 2000: Court upheld the right of arrested persons to be read their Miranda right

Question 16

Explain the eighth amendment and its protection (capital punishment)

Answer 16

• Furman v Georgia 1972: Court decided that the death penalty as then imposed was a ‘cruel and unusual punishment’ and violated the 8th, consequence of this case included the use of lethal injection and two-stage trials in which mitigating circumstances are considered before sentencing
• Atkins v Virginia 2002: the Court ruled that the execution of mentally retarded criminals was unconstitutional
• Roper v Simmons 2005: the Court ruled that it was unconstitutional to sentence anyone to death for a crime committed under the age of 18
• Baze v Rees 2008: lethal injection did not violate the 8th

Question 17

Explain the fourteenth amendment (citizenship rights)

Answer 17

14th Amendment: rights of racial minorities
• Brown v Board of Education 1954: Kansas state law transgressed the ‘equal protection’ clause of the 14th and led to desegregation of school in the South, overturning Plessy 1896
• Gratz v Bollinger 2003: University of Michigan’s AA programme was unconstitutional because it was too ‘mechanistic’
• Parents involved in Community Schools inc v Seattle School District no 1 2007 and Meredith v Jefferson County Kentucky Board of Education 2007: declared it unconstitutional to assign students to public schools purely to achieve racial balance
• Fisher v University of Texas 2013: court ordered lower courts to exercise ‘strict scrutiny’ of university admissions procedures that included race as a selection criteria, seen as a veiled attack on AA
14th Amendment: abortion rights
• Roe v Wade 1973: Court struck down a Texas state law forbidding abortion, interpreted 14th’s right of liberty to include freedom of personal choice in matters of marriage and family life, gives rise to ‘pro-choice’ advocacy
• Planned Parenthood of South-eastern Pennsylvania v Casey 1992: Court upheld Pennsylvania state law requiring a married woman seeking abortion to receive counselling on the risks and to wait 24 hours after, women under 18 needed parental consent, however the court struck down an area of the law requiring a married woman to inform her spouse
• Gonzales v Carhart 2007: upheld the Partial-Birth Abortion Ban Act passed in 2003, first time the Court had declared a specific abortion procedure could be banned and made no exception for the health of women expect for if the mother’s life was threatened

Question 18

Explain SCOTUS’s checks on the executive and legislautre

Answer 18

Checks on Congressional Power:
• United States v Lopez 1995 had clear implications for the scope of federal power over state and local jurisdictions
• National Federation of Independent Business v Sebelius 2012: Court ruled the individual mandate of the affordable care act could not be legislated by Congress under the Commerce clause of A1 of the Constitution, but could be allowed under Congress’ power in the same Article to ‘lay and collect taxes’
Checks on Presidential Power:
• United States v Richard Nixon 1974: declared Nixon’s refusal to hand over the White House tapes to be unconstitutional
• William Jefferson Clinton v Paula Corbin Jones 1997: declared Clinton’s claim of immunity to prosecution in a sexual harassment case unconstitutional
• Hamdan v Rumsfield 2006: declared the military commissions set up by George W Bush to try Guantanamo Bay detainees unconstitutional

Question 19

Explain the checks on SCOTUS

Answer 19

Checks by Congress
• Senate confirms all SCOTUS nominees
• House can impeach justices and the Senate try them and, if found guilty by a 2/3 majority can be removed from office
• Congress can alter the number of justices on the Court
• Congress can initiate constitutional amendments to overturn judgements of the court, recent unsuccessful attempts to flag desecration, school prayers, abortion rights and congressional term limits
Checks by President
• President nominates all justices
• Can throw political weight behind the Court e.g. George W Bush over Zelman v Simmons-Harris 2002 or to criticise it openly e.g. George HW Bush over Texas v Johnson 1989, and Obama over Citizens United 2010
Other Checks
• Court has no enforcement powers, e.g. Brown 1954 dependent upon President Johnson sending in federal troops to desegregate the Little Rock Central High School in 1957
• Court has no imitation power, has to wait for cases to come before it, cannot rule on hypothetical issues
• Public opinion can be a check on the court e.g. Planned Parenthood of south-eastern Pennsylvania v Casey decision on abortion rights in 1992
• Some parts of the Constitution are unambiguous and not open to Court interpretation
• SCOTUS may check itself by reversing earlier decisions, having ruled in 1989, Stanford v Kentucky, that states could execute 16 and 17 year old offenders, the Court ruled in 2005, Roper v Simmons, that such executions were unconstitutional. In 2000, Stenberg v Carhart, the Court declared a Nebraska state law prohibiting later-term abortions to be unconstitutional, but in 2007, Gonzales v Carhart, it upheld an almost identical federal law

Question 20

Does the supreme court have too much power?

Answer 20

• Some critics argue the Court has too much power, the framers regarded it as ‘the least dangerous branch’ – Alexander Hamilton, and therefore claimed, it was less rigorous in checking its powers compared with the other branches
• Court’s one significant power – judicial review – is not in the constitution and was self-given by the Court
• The justices are unaccountable and serve for life
• Court’s power to shape many important areas of the nation’s life, including gun control, abortion, freedom of speech and religion, campaign finance and the death penalty, shows extraordinary power
• However, there are significant checks on the Court, it may be powerful, but too powerful?
• Making the Court elected or limiting its members length of service would not necessarily make it less powerful, even if these were desirable or practical options – which they aren’t

Question 21

Explain judicial independence

Answer 21

• Upheld in the following ways:
o They have tenure for life and cannot be ejected from the Supreme Court for making unpopular or politically contentious decisions e.g. many conservatives feel betrayed by Justice Roberts
o Impeachment is the responsibility of both houses of Congress, making politically motivated impeachment less likely to succeed.
o The separation of powers means that the judicial function is vested solely in the court, and it is consequently free from political interference in its decision-making

Question 22

Why is the Supreme Court too powerful//undemocratic/imperial

Answer 22

• Legislate from the bench. Gives the court an appearance of a legislator e.g. the Supreme Court has established that gay marriage is legal through a landmark decision in Obergefell vs. Hodges, instead of the use of an amendment to allow the federal government to set the conditions for a valid marriage, and not the state. This therefore undermines separation of powers. Also, Judges are expert in law, not social policy, and consequently judge-made social policy is often ineffective and unworkable in practice.
• Own agenda. The court undermines its legitimacy if it is seen to be advancing its own agenda e.g. Citizens United, where the Supreme court declared unconstitutional the Bipartisan Campaign Reform Act but which had been supported supported in both houses of Congress. Almost no area of public policy is immune to constitutional challenge
• Unaccountable. Judges have life tenure, and have limited methods to hold them to account because of this. Because judicial review is not explicitly specified in the constitution, and the judiciary was envisaged by the framers as the ‘least dangerous’ branch, the court is effectively
• Uncheckable. Moreover, they may vote in ways at odds with the impression they created during their confirmation hearings e.g. Roberts considered a ‘traitor’ by conservatives
• Constitution. The ability of the Court to declare actions or laws is not a part of the constitution and was awarded by the court to itself. Moreover, the court, as an unelected branch, should adhere to the principle of legislative deference, i.e. it should only overrule legislation passed by the people’s elected representatives if it unambiguously violates the constitution e.g. legalising gay marriage was a step too far

Question 23

Explain why the supreme court isn’t too powerful

Answer 23

• Formal restraints: Constitutional amendments. They can overturn Supreme Court decisions e.g. the 16th Amendment authorising a federal income tax reversed a Supreme Court decision declaring federal income tax unconstitutional. Legal process: Judges can only decide matters that are brought to them in the form of legal cases and will not offer advisory opinions e.g haven’t been able to . Likewise, Judges only consider cases where their decision will make a real difference i.e. cases in which affect a considerable number of people and it is claimed that considerable harm has been caused.
• Informal restraints: No enforcement capacity. There have been many examples of the Court’s decisions being ignored or actively resisted, such as the refusal by southern States to end racial segregation in the 1950’s and 60’s. Public opinion: Striking down New Deal legislation in the 1930’s created the impression that the Judges were out of touch with ordinary people which undermined the Court’s status. Want to avoid political controversy e.g. Schiavo case
• Confrontation. The court will attempt to avoid confrontation with the elected branches, for example the decision in 2012 over ‘Obamacare’, or may refuse to grant ‘cert’ to cases which it deems to be political e.g. as done in Missouri vs. Jenkins.
• Necessary. many liberals would argue that the court must intervene to strike down legislation sometimes if basic rights are to be maintained. Also, The difficulty of formally amending the constitution means necessary amendments have to be carried out by judges

Question 24

Explain why SCOTUS is too political

Answer 24

• Yes
o Appointment process. President’s choose nominees who whose political and judicial philosophy match their own e.g. Obama, liberal, nominating liberal Garland. Can be more specific as president may ‘litmus test’ candidates, scrutinising previous judgements to make sure nominee shares the same views e.g. Bush’s nomination of Souter dubbed a ‘home run’ for conservatives due to Souter’s views on abortion. Bush forced to deny Souter chosen for this reason as he had ‘too much respect for the Supreme Court to focus on specific issues’.
o Process is political. The judgment process itself is political; in the process of reaching a decision, justices will try to ensure their view prevails; they will form alliances against opponents, strike bargains and offer compromises. the court is used for political ends; interest groups bring test cases and lobby the court through amicus curiae briefs e.g. NRA in Heller
o Public. Judgments are not arrived at in a judicial vacuum; justices are aware of public opinion and the likely impact of their decisions e.g. avoid political controversy by not rejecting Obamacare. They are also subject to politicians influence e.g. Obama criticised the Court in his State of the Union address

Question 25

Explain why SCOTUS ins’t too political

Answer 25

o Willingness to defy public opinion. In some extremely notable cases e.g. Texas v. Johnson where flag burning was held to be legal under the First Amendment
o Justice unpredictability. They may vote in ways at odds with the impression they created during their confirmation hearings e.g. Roberts considered a ‘traitor’ by conservatives. Occurs due to lack of accountability
o Judicial mind-set. Justices may rule against their own stated preferences, e.g. Justice Kennedy in the Texas v Johnson judgment wrote “The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.”
o Judicial restraint. Conservative judges adhere to this, an approach to judicial decision making which holds that a judge should defer to the legislative and executive branches, and should put great stress on the precedent established in previous Court decisions and should only overrule either its own precedents or the other branches of government in the most egregious cases of faulty judgment or constitutional violation.

Question 26

Explain Citizens United v Federal Electoral Commission 2010

Answer 26

• Under the First Amendment, it was declared that restricting independent political expenditures was unconstitutional (McCain vs. Feingold Act 2002), as First Amendment rights extended to corporations, and this therefore undermined free speech. Conservative victory as it illustrates a defence of individual rights against ‘big government’ and protects businesses. Also, demonstrates the ‘swing’ Justice, Kennedy, voted with conservatives. More evidence that Kennedy was more conservative than the previous ‘swing’ Justice, O’ Connor. Also conservative on the grounds that it has disproportionately benefitted Republican and right-of-centre candidates for political offices
• Could be liberal victory as conservatives embraced an activist approach, disregarding efforts by elected officials. Also, conservatives claim to be respectful of precedent e.g.in Citizens United - Austin and McConnel which th eocurt stated the government could limit corporate political expenditures. Finally, conservatives tend to insist the courts resolve constitutional issues on narrow rather than broad grounds, with Justices ordering parties to file briefs on the much broader question of whether Austin and McConnell should be overruled.

Question 27

Explain District of Columbia v Heller 2008

Answer 27

• The Court ruled that Washington D.C.’s ban on handguns was unconstitutional under the Second Amendment. Case demonstrates Conservative values as defends right to bear arms and a more constructionist approach to the Constitution, and a defence of the individual from liberal city council legislation as the Court struck down the Control Regulations Act 1975.
• However, perhaps the Court was not upholding ‘conservative values’, but fundamental constitutional rights. Is the right to bear arms can be considered an American value, not a partisan one?

Question 28

Explain Obergefell v Hodges 2015

Answer 28

• Ruling that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the ‘Equal Protection Clause’. A liberal decision as it moves away from traditional views and an interpretationist approach to the Constitution. Hugely significant due to its domination of American politics and highlights significant judicial activism.
• For some this marked an end of the Roberts Court’s transition, from conservative bastion to liberal activism. However, simplification as the evolving national mood regarding gay marriage certainly influenced the Court. Nevertheless, Roberts said “Do not celebrate the constitution. It has nothing to do with it”.
• Kennedy pivotal, and was the ‘swing vote’ in this case, as he is many cases which end 5-4.
• National Federation of Independent Business vs. Sebelius (2012)
• This enabled most provisions of the Patient Protection and Affordable Care Act (2012), stating the Act was a constitutional exercise of Congress’s taxing power, though the expansion of Medicaid was not a valid exercise of Congress’s spending power as it would coerce states to either accept the expansion or risk losing existing Medicaid funding - a minor conservative triumph and illustrates conservative inclinations. The Court allowed Congress to impose a penalty on those who did not comply with legislation.
• Robert’s, a conservative, voted in favour of it as he viewed the ACA as a tax, and therefore within the federal government’s realm.
• Though liberal victory, suggestion Roberts’ changed his mind due to philosophy of judicial restraint, imposing limits on the Court’s jurisdiction. Perhaps the case wasn’t about conservatism or liberalism, but the Court may have been overreaching in its political significance by striking down important legislation

Question 29

Explain Hollingsworth v Perry 2009

Answer 29

• This led to California’s same-sex marriage ban being declared unconstitutional. Though an obvious liberal victory, the protection of gay rights only occurred incidentally and was not what the case revolved around.

Question 30

Explain Texas v Johnson 1989

Answer 30

• Court that invalidated prohibitions on desecrating the American Flag, holding this violates the First Amendment. Scalia joined the liberals. Roberts stated: “The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.”

Question 31

Explain Bush v Gore 2000

Answer 31

• The Court ruled that the Equal Protection Clause had been violated in using different standards of vote counting in different counties, and no alternative method could be established in time. This allowed Bush’s victory in Florida to stand, and allowed Bush to win the election. Issues occurred as there were huge amounts of rejected ballots.

Question 32

Has the Court become more liberal or conservative?

Answer 32

• Studies show more liberal (e.g. Snyder v. Phelps) with the NY Times finding the term that ended in 2014 was the most liberal since 1969. The leftward movement is modest, and remains to the right of the Warren Court, where the percentage of liberal decisions routinely topped 70% compared to 56% currently.
• Conservative decisions in campaign finance, gun rights, race and abortion.
• This leftward movement may be expected as the post war generation and US society have become more accepting of change and civil right promotion, defying conservative values of upholding the status quo and opposing changes in society.