Supreme Court

?
  • Created by: Rachel
  • Created on: 18-05-14 13:43

Appointment Process

1. Shortlist drawn

2. President announces nomination

3. ABA rate

4. Hearing in front of Senate Judiciary Committee 

5. Senate J C vote of whether to recommend to senate

6. Senate debates on floor

7. Senate votes simple majority required

1 of 9

Appointment: Factors affecting choice

  • Philosophy: 
  • Conservative v. liberal (loose v. strict)
  • Bush & Souter
  • Judicial Ability
  • Elena Kagen had legal career, Harriet Meirs did not so withdrew 2005
  • Composition of senate
  • If mainly Democratic senate, high chance republican choice or strict constructionist will be accepted
  • Representation
  • "looks like america" & supports group less acknowledged; Sonia Sotomayor latina & female
2 of 9

Judicial review & independence

  • Implied Power; Madbury v. Madison - constitution delegates power to interpret law to judges, constitution is law, power to interpret constitution
  • Judicial activism v. Judicial restraint
  • Due process: Constitution written to prevent federal government having excessive power, 14th amendment, due process & equal protection restricted state power & allowed SC to check state also. Judicial Independence gained through:

Judicial Independence gained through:

  • separation of powers
  • appointed not elected
  • lifetime tenure & pay
3 of 9

Advantages and Limitations of SC Power

Advantages

  • Judicial Review - Decalare laws unconstitutional and therfore null.
  • Unaccountable
  • Checked least - Courts rulings can be checked through amendment but v. difficult to achieve (only 4 reversed this way-- more likely for court to reverse itself, Brown reveres Plessy

Limitation

  • Congress: change size of court, impeachment & constitutional amendments 
  • President: nominates & open criticism 
  • Others: Enforcement power (e.g Eishenhower troops for BvBOE) 
  • Initiation- appeals only
  • Public Opinion - Planned Parenthoos of SE Pennsylvania v Casey
4 of 9

Political v. Judicial

Role of supreme court in politics lead to debate whethere is should be seen as a political body or a judicial body.

Political

  • Nominated and confirmed by politicians
  • Increasingly idealogical in dicision making
  • Judical review to declare laws unconstitutional and therefore null
  • political actors and interests groups sponsor test cases for political end
  • Public opinion

Judicial

  • 'Neutral umpires' 
  • Can rule against own preference; Justice Kennedy in Texas v. Johnson "we must make decision we do not like because they are right in the sence of the law & constitution"
  • Constrained by law & precedent they've already set and don't want to overturn
  • Cases decided through legal system, small % have high-profile political impact
5 of 9

Judicial Interpretation

Conservative- great value put on original meaning of text 'strict constitutionism'

  • Anthony Scalia- constitution is dead. statement of fundamental principles
  • Interpretation of  constitution should be objective so judgements more predictable and stable - opposed living constitution as it just reflects values of current justices.
  • FF created process to amend constitution; SC finding rights in texts on controversial matters normally divisive and lack legitimacy- roe v. wade

Liberal- living constitution interpreted to make relevant to modern society 

  • Constituttion written in  broad terms - framers wanted it to adapt
  • Amendment process too difficult, up to SC to update 
  • Society changes - 'cruel & unusual punishment' then not same as now
  • 'Originalism too inflexible; no one critiscied BvBOE even though the 14th amendment on which decision was made allowed for segregation.
6 of 9

Appointment: Problems

  • Power it exercises  - Interpretation means Court has control over public policy
  • Lifetime tenure - means President has influence even after he leaves office
  • Polarisation - Liberal or Conservative means appointment becomes politicised. This leads to rejection of nomminees regardless of merits. e.g Kagen 3rd consecutive nominee to win with >70% 
7 of 9

Negatives of SC

Weak-

  • The constitution is too vague, no one can claim a definitive knowledge of its meaning and court lacks legitimacy to interpret
  •  As the court lacks the legitimacy of the elected branches, it should strike down legislation only if it is in flagrant breach of the constitution
  • Judges are not expert in social policy and, if they attempt to substitute their judgment for the legislators, it is unlikely to produce successful policy 
  • If justices are seen to use judicial review to advance their own policy preferences, they risk eroding the standing and authority of the court
  • If the court reverses its own decisions, especially within a relatively short space of time, again there is a danger that its authority is undermine
  •  federalism is a cornerstone of the US constitution, and, in striking down state laws, the court is denying states the legitimate right to protect regional ways of life
8 of 9

Positives of SC

Strengths

• Role of the court granted by FF to protect rights

• The court’s own decisions are not immune from error and can be reversed if necessary - not imperial judiciary

 • legislators are often risk-averse, and slow to act for fear of offending one group or another; consequently, important social change can only be achieved by the court taking the lead and striking down archaic legislation – CIVIL RIGHTS/ROEvWADE

State laws in particular are likely to promote values which have long since ceased to be acceptable – Owensboro, Kentucky illegal for woman to buy hat without husbands permission (sexist values)

9 of 9

Comments

No comments have yet been made

Similar Government & Politics resources:

See all Government & Politics resources »See all The Supreme Court resources »