A2 Government & Politics Unit:4a, Topic:4 (Judicial branch/Supreme Court)

Third branch of US gov't 

Comes from Article III 

Guardian of the sovereign, entrenched doc. - fundamental law and core values (Const.) 

Why is it so imp.? 

• Power of constitutional interpretation 
• Resolves conflicts 
• Convention - SC has power of JUDICIAL REVIEW: 
  • Can decalre full/parts of laws unconstitutional. More powerful than UK JR 
  • Example would be the use of the line-item veto struck down in Clinton v City of NY 1998
  • Pres. actions can be unconstitutional too, eg. Nixon 1973 
  • Found power of JR in Marbury v Madison 1803 
  • This was extended to state law too in McCullock v Maryland 1819 

• Arguably infuenced more by political than judicial factors 
• Pres. nom. then confirm. by Senate with simple maj. 
• Can be a prob. w/ divided gov't
• Political acceptability (determ. by Litmus Test) is key 
• SCJ can be on Court for decades - (avg. ten. 16yrs, longest John Marshall 34yrs), Pres only 8y
• Can gain pres support from key groups, e.g. LBJ's appointment 1967 of first black justice Thurgood Marshall / Reagan first female 1981 Sandra Day O'Connor / Obama first hispanic Sonia Sotomayor 2009 
• Repub - cons justices, Demo. - lib justices 
• cons - strict constructionists, lib - loose constructionists 
• swing justices are key when replacing - can shift balance of court e.g. Sandra Day O'Connor -> Samuel Alito 2006 (cons) 
• Contraversial - 1987 Robert Bork rej. as cons views not good for Democrat-controlled Senate (Reagan) 
• Clarence Thomas 1991 - Anita Hill claimed sexual harassment, ABA gave him "qualified" only justice ever to not receive "well-qualified" confirmed on just 52 - 48, because black accused them of "high-tech lynching" (G. H. W. Bush)
• 2005 - Harriet Miers (G. W. Bush) withdrawn - clearly not enough knowledge 

Over-estimated: 

• Only when there is a vacancy - some have loads (Reagan (3), George Bush (2), G. W, Bush (2), Clinton (2), Obama (2), yet Carter (0) 
• Cannot remove justices once appointed - if they are not how you wanted them- tough. e.g. David Souter (more lib than Bush expected)- no guarentee they will do what you want them to - e.g. Eisenhower's "biggest damn fool mistake" as nominating Earl Warren as CJ - most activist court in history 
• Justices are not loyal to any admin. - they are independent 
• Current SC = 5 cons, 4 libs - but not really a predictable court 

• JUDICIAL INDEPENDENCE 
• Key to judicial independence is security of tenure. 
• William Taft only person to be Pres. + CJ, mixing branches

• JUDICIAL PHILOSOPHY 
• Warren + Burger courts were judicially activist/
• Rehnquist court was more judicially restrained 
• Current one shows some degree of activism 
• Judicial activism = loose contructionism (gen =) lib e.g. Ruth Bader-Ginsburg 
• Judicial restraint = strict constructionism (gen=) cons e.g. Scalia 

• Roe v Wade (1973) - abortion rights ( XIV amend. ) 
• Brown v Board of Education of Topeka, Kansas (1954) ( XIV amend. ) 
• Miranda v Arizona (1966) - Miranda rights ( V and XIV amend. )
• Bush v Gore (2000) - Judiciary acting ultra vires? ( art. II and XIV amend. ) 
• Gonzales v Carhart (2007) - banning partial-birth abortions ( XIV amend. ) - eroded Roe v Wade  - never removed it 
• Citizens United v Federal Elections Commission (FEC) (2010) - campaign finance ( I amend. ) 
• Patient Protection and Affodable Care Act (PPACA) - National Federation of Independent Business v Sebelius (2012) (ObamaCare) ( art. I ) (Roberts sided with libs, said it was a tax) 

• Bill of Rights (ratified in 1791) - entrenched rights of the citizens, first 10 amends. to Const. 
• Activist course through loose constructionism that extend rights - but Roberts Court might be proving an exception to that - esp. in 1st Amend. cases 
• Rights: 
  • Rights of Minorities - Grutter v Bollinger 2003 - racial profiling for uni OK - specific way though
  • Religion - Engel v Vitale (1962) - upheld 1st Amend. of freedom of religion 
  • Freedom of speech - Texas v Johnson (1989) - struck down state law banning desecration of the flag as damaging 1st amend. Also Citizens United v FEC 2010 
  • Right to bear arms - District of Columbia v Heller 2008 - got rid of Washington DC handgun ban, violation of 2nd Amend. 

• Reactive court - does not initiate its own cases 
• Congress has power to alter, or attempt to alter, no. of justices on court. Threatened during New Deal by FDR - 1937 wanted 6 more justices so they would be lib, to 'pack the court' to pass parts of the New Deal quicker 
• SC interpretation of const. can be overturned by constitutional amend. 
• Court can exercise judicial self-restraint by refusing to hear cases. e.g. Schiavo 'right to die' case in 2005. 
• Hamilton - 'least dangerous branch'. -lacks both power of the purse, and power of the sword. Has to rely on political + public acceptance - e.g. reaction to Brown vs Board of Education ruling in the South, Eisenhower had to send in fed. troops 
• Some SC decisions are ignored - several states have placed legal restrictions in the way of women seeking abortions 

• Political: 
• Maj. pol. issues affecting American ppl. e.g. abortion (am.XIV), guns (am.II), discrimination (am.XIV), terrorism solutions (am.IV), death penalty 'cruel and unusual punishment' (am.VIII) 
• Judicial review - can strike down decisions made by democratic elected reps. 

• Judicial:
• independent judicial insitution. - follows judicial procedures - not politicians reps and accountable to electorate

• Central paradox: 
• So much pride in its elective democracy, is the existence of the unelected SC and its unchecked power to decide crucial moral issues 

• UK - no entrenched codified const. 
• Parl. sov in uk, const. sov. in US 
• UK jud. is less powerful - can only issue 'declarations of incompatibility' 
• Rights are less protected in UK - not entrenched 
• Constitutional Reform Act 2005 (CRA) - independent appointment body (JAC) Judicial Appointments Commission 

ADDITIONAL INFO: 

Judicial overreach - overreaching const. power 

Judicial supremacy - what people claim is happening - not supposed to be!

99% of cases presented are not heard by the SC