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US Supreme Court (Appointment process (Vacancy occurs ---> the pres…
US Supreme Court
Appointment process
Vacancy occurs ---> the pres nominates a new justice ----> the senate decides
Failed nominations - Robert Bork was nominated by Reagan and last nominee to fail a vote in the Senate 42-58
Harriet Miers 2005 - nomination by George W Bush - her moderate conserv nature and lack of judicial experience were both used as criticisms of her nomination - with a Rep Sen maj Bush could have proposed a more conserv justice - Dems attacked focusing on lack of experience
Merrick Garland 2016 - nominated by Obama to replace conserv Scalia - sen blocked any nomination by refusing to hold vote - can be seen as extreme partisanship - senate did not fulfil constitutional dutyto advise + consent bc waited for Trump to fill vacancy
Strengths - ensures independence - life tenure + sep of powers + checks + balances - after careful scrutiny prevent a justice feeling under obligation to any one political institution
Strength - ensures jud ability - as noms = carefully scrutinised by Senate Judiciary Committee + rely on a full Senate vote - they are vetted for their ability to operate as a justiceon highest US court - unlikely to be successful without experience
Strength - ensures personal suitability - the intensive nomination also ensures that there are no historical concerns or character flaws - Solomayor = questioned by some members of SJC who concerned by apparent racial + gender bias
Weakness -nominination process is politicised - pres own policy preferences infect the court - makes SC a highly political body - justices decscribed as liberal or conserv - constant criticism that a justice has not based dec on constitution - judges to retire can be political eg when a justiice chooses to retire at point when like minded pres = in office
Weakness - ratification process is politicised - increasingly senate appears to be acting in partisan manner - suppporting or opposing nomination process according to which pres made it - appointments 80s of Scalia + Kennedy passed with huge bipartisan support and no votes against - nom of Bork = truning point - Dems treid to prevent someone strong conserv = hearing now politcally charged
It is ineffective - as result of politicisation nominees tend to avoid giving toomuch detail of their views of Constitution + recent constitutional decisions - process fails short of adequate scruntiny - mistake of Bork to say Roe v Wafde had no constitutional basis - Gorsuch = said only give ruling when all facts - wanted to maintain neutrality
SC and public policy
Sig public policy of Roberts Court - DC v Heller (2nd amendment case overturning ban on handguns in DC homes), Citizens Unitedv FEC 2010 (1st amendment case overturning regulating money in elections = parts of Bipartisan Campaign Reform Act were unconstitutional), NFIB v Sebelius (state's rights and commerce clause and 16th amendement right of fed govt to which uphold Affordable Care Act), Shelby County v Holder 2013 (Overturned longstanding public policy of Voting Rights Act 1965 as no case under 14th Amendment), Riley v California 2014 (4th amendement case protected people from unwarrented police searches of mobile phone), Obergefell v Hodges 2015 (right to gay marriage under 14th Amendment covering both due process and equal treatement clauses), Whole Woman's Health v Hellerstadt 2016 (overturned Texas state regulations on abortions on grounds of 14th Amendment restrictions on equal proctection placing undue burden on women)
SC -
Removes existing policy
(Citizens United v FEC 2010),
Upholds existing policy
(NFIB v Sebelius 2012),
Establishes new policy
(Obergefell v Hodges 2015)
Judicial activism is an approach to interpretation of Constitution - justices use own views and values in order to achieve their social or political goals, activism involves the Court overturning other political institutions or the precedent of previous court.
Activism might reflect itself in approach of an indiv justice who is associated with particular stance which they use to challenge political instiutions
Judicial activism is associated with Warren court as major impact on public policy eg Brown v Board of Education
Judicial restraint - opposite to jud activism. Justices may or may not have personal bias but approach to judicial interpretation is to limit extent to which they overturn political bodies. This could be based on view as unelected SC should defer to institutions with greater dem legitimacy.
Judical activism has been critised for giving justices excessive power over elected politicians - restrainst could be more suited to dem society as resticts likelihood of unelected jsutices denying maj view as expressed by elected politicians
Roberts attacked activism in Obergefell v Hodges
Conservs in partic have been critical of activism bc way it has been used by SC to 'find' new rights eg abortion and gay rights - need to protect civil liberties based on idea need to bring constit to fit modern day
Restraint has been attacked bc could be seen as dereliction of duty. In deferring to elected politicians SC = failing to enforrce constitution - US constituion not based on desire for majoritarian democracy to prevail but instead prioritises checks and balances + protection of indiv liberty
Composition + ideological balance of court
Warren Court 1953-69- Known for hearing a series of civil rights cases delivering liberal opinions e.g. Brown V Board of Educatio 1954 and Miranda v Arizona 1966 = landmark lib rulings - described as activist by those who claim it overturned established practices to achieve its own political goals
Rehnquist Court 1986-2005 - Seen more restrained rather than active court - heard fewer cases less than 100 a year, reducing political impact. Associated with states' rights agenda with several rulings that protected power of states, halting decades of expansions of fed power
Roberts Court 2005 - N/A - arguably more conserv than Rehnquist Court with nomination of Alito to replaced moderate swing O'Connor . Has delivered a series of conserv rulings undermining campaign finance regulations such as Citizens United v FEC 2010 and McCutcheon v FEC 2014. Has disappointed conserv in other conservs eg NFIB v Sebelius which upheld Obama Affordable Care Act
Thomas (Bush Snr Conserv), Ginsburg (Clinton Lib), Breyer (Clinton Lib), Roberts (Bush Jr Conserv), Alito (Bush Jr Conserv), Sotomayor (Obama Lib), Kagan (Obama Lib), Gorsuch (Trump Conserv), Kavanagh (Trunmp Conserv)
Roberts court is divided with conserv majority as reflected in votes of key cases - DC v Heller 2008 Ocutr departed from jud precendent right to bear arms
Kennedy was swing but Kavanagh looks to be more conserv
Independence of the court
Constitution ensures that highest US court is independent from political institutions - particularly important for constitutional court bc has role of determining constitutional acceptability
Sep of powers - sep of personnel means that no one in the executive or legislature works closely with judges, so there is little chance of close connection or pressure - contrast UK highest court Law Lords was until recently in HoL
Appointment process - president cannot determine the apointment of justices alone but nominates =+ senate accepts or rejects having the power to ratify - could prevent president appointing someone who will not act independently because they have close connections to the president
Life tenure - justices are appointed for life, preventing threat of removal - pres or congress cannot remove justice unless they have acted illegally through supermajority). This gives justices freedom to act regardless of wishes of pres
Salary - judicial compensation clause of article III protects the pay of judges, stating that their 'pay shall not be diminished during continuance in office'
Judicial review process
The SC cannot initiate a case - cases are presented to court by indiv or institution who feels Constitution has been broken - receives between 1000-8000 cases a year but hears between 80-100
SC operates in a similar way to a criminal court - there is a plaintiff and defendent. Lawyers make arguments on either side being just 30 mins to present oral arguments - all 9 justices usally hear a case - justices can act questions or make points during these hearings
Once a case is heard SC discusses case in private in order to reach a maj decision of five or more - a justice in maj is tasked with writing opinion with input from other justices. Opinion of court is written document detailing how Constitution has or has not been broken at some length eg NFIB v Sebelius (Affordable Care Act) runs 193 pages
Maj opinion is an agreement by 5 or more members - helps set precedent for future cases particularly for political institutions, organisations and indivs - SC could choose to have a narrow + limited impact or a broaad ranging one when writing their opinion - in split decisions a minority opinion is also written
In hearing case SC has power to declare that the actions or laws of other institutions are unconstitutional - allows court to overturn those actions or laws using the power of judicial review
Factors influencing the president's choice of nominee
Judicial ability
- presidents are picking from pool of qualified people with legal expertise - vast maj of recent justices worked in circuit courts (1 level before) - those with lack judic experience faced tougher confirmation hearings - Jeff Sessions expressed concern of Kagan's legal academia rather than jud practice
Ideology
- pres' = undoubtedly influenced by ideological bias by the nominee usually in way they have interpreted law or Constitution. Pres = highly unlikely to nominate someone of opposing political view - pres have acknowledged a much often highlightin other important qualities eg Obama appointing Solomayor said that jud experience alone was insufficient - experience gives person a common touch
Social characteristics
- geographical background has long been a consideration but there is an increasing racial + gender diversity on the Court - the SC 2017 has 3 women sitting; only 4 women have served in entire history; court has one black + one hispanic. Pres = making a value judgement about the desirability of diverity in pos of poweer - Lib pres replacing two white males with 2 females
Political motivations
- pres may be more concerned with personal political gain than fulfilling ideological goals. A nominating pres has to consider the likely response of Senate - pres facing hostile maj in Sen may make more mod choice to limit opposition or to retain support - after choosing Solomayor Obama able to increase his support from hispanic voters between 2008 and 2012
Central role of US SC is to uphold constitution as outlined Article III
Established by constitution - established SC, extent of judicial power (cannot initiate cases), life tenure for judges, original jurisdiction, appellate jurisdiction (most cases must go to another court before being presented to SC), the appointment process
Implied by constitution - power of judicial review is central power of the Court, allowing it to overturn any other institution bc the Court declares its actions in Marbury v Madison when it 1st overturned an Act of Congress. Power further defined when in Fletcher v Peck 1810 in which court overturned state law for 1st time. Some argue power = apparent in constitution
Established by Acts of Congress under constitutional authority - congress has power to establish inferior courts (13 circuit courts below SC), determine number of justices on the court