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The Supreme Court and Civil Rights - Coggle Diagram
The Supreme Court and Civil Rights
Marbury v Madison (1803)
Main concept
Equal to and independent of Congress and the executive branch
SC can assert in a way the challenges other branches if their ruling is backed by the constitution
The Case
Surrounding Adams judicial appointment of Marbury but never got officially appointed
Jefferson wanted to revoke this but Marbury alerted the SC
The Judgement
SC went in favour of Marbury
While coming to conclusion they realised under the Judiciary Act of 1789 the SC didn't have jurisdiction force to come to a conclusion
Meant Chief Justice Marshall ruled to Judiciary Act invalid constitutionally
First ever judicial review
The significance
The power of Judicial review not mentioned in the Constitution
Granted SC judicial review over all federal issues
Fletcher v Peck (1810)
Main concept - extended the power of judicial review from federal review to state law aswell
The Case - 1798 Georgia sold 35 million acres of land for 1.5c per acre to land speculators and found out the legislators of this had been bribed, Fletcher bought all the land off Peck which unknowingly had been voided by state law, he sued Peck
The Judgment - SC ruled fraud had taken place rejecting Fletchers argument that sovereignty lied with Georgia, SC struck down Georgia's law
Significance - Alongside Marbury v Madison they increased both federal and state law to be stuck down by the SC if deemed unconstitutional
Appointment process
Process
Vacancy occurs through voluntary retirement, death or impeachment
The President instigates a search for possible nominees and often interviews shortlisted candidates
The Senate Judiciary committee holds conformation hearing on the nominee and makes a recommended vote
The Presidents announces their nominee
The nomination is debated and voted on in full Senate. Simple majority vote required for confirmation
Trump nominated 3 in 1 term, Obama 2 in 2 terms, Biden 1 in his 1 term etc
Due to the life tenure SC justices these are the most important appointments a President makes (longest serving Judge is Clarence Thomas by George H.W. Bush in 1991)
SC can appear to be an echo chamber which the voices and views of the earlier decades can still be heard
Once a vacancy occurs the President commissions a search for suitable candidate through sources like:
The White House Aids
Top officials of the Justice department
Names mentioned by key members of Congress
Lawyer groups (eg federalist society, the American Constitution Society)
Announcement is publicity opportunity and family of nominee invited to White House
The confirmation process
Hearing included witnesses include nominee supporters and critics
After hearing committee voted on whether they recommend further action (likely reflect whole Senate vote), 7-7 for Thomas in 1991 and had to fight in Senate floor
Since 2017 threat of a fillibuster (60 votes to overcome) has been removed so only a simple majority
Confirmations and controversies
Due to hyper-partisanship
The senate was formally rejected 12 nominations since 1789 (most recent in 1987 with Reagan's nomination of Robert Bork)
2005 Bush initial appointment of Harriet Miers withdrew due to uncertainty about getting enough votes
March 2016 Obama nominate Merrick Garland to Scalia but the Senate Judiciary committee declined hearing the nomination
Trump September 2018 controversial nomination of Brett Kavanaugh
Death of liberal judge Ruth Bader Ginsburg in September 2020 led to Trump's controversial nomination of Amy Coney Barrett (all 47 Democrats voted against)
Strengths
Opportunity to scrutinise the nomination (Brown Jackson soft around child pornography and ACB climate change, abortion rights and Obamacare)
Opportunity for candidate to defend themselves and show respect for the law
Able to understand their personality
Weaknesses
Can get quite emotional
Doesn't give definite result as many will still disagree with nomination
Sometime more of a celebration of the US than it is an interrogation
Can't really get to the hearts of their beliefs 'I will judge each case by its merits'
Not about answers to questions more about actual questions
Independence
Yes it is independent
Congress has the power to change the composition of the SC however it has remained 9 members since 1869
Life tenure
Separation of powers grants SC constitutional independence
American Bar Association (ABA) is an interest group made up of professional lawyers instead of political actors
No it isn't independent
Congress retains the power to alter composition of the SC
Members of court can only be removed via the impeachment process
SC lacks enforcement powers (1957 Arkansas used the local militia for forcible prevent black children from entering a high school and it was only on the instruction of Eisenhower that federal troops allowed black children to enter the school)
Independence and neutrality question of the ABA has recently come into question
Nominated by the President and then confirmed by a simple majority vote in the Senate
Factors affecting a President nominations
Judicial ability
Chooses from a small groups of qualified candidates who have necessary legal expertise
Many SC justices are nominated from the Federal Court of Appeals (one below the SC)
Positions held at time of nomination
Federal Judge (36)
Practising attorney (22)
State Court Judge (18)
Cabinet member (14)
Senator (7)
Solicitor General (3)
State Governor (3)
Law professor (0)
Idealogical considerations
Denied by Presidents but an underlying consideration
Usually President pick justice whose political ideology reflects their own
Use a 'litmus test' on nominees which scrutinises their rulings on controversial cases
Social characteristics
Diversity of race and gender are increasingly important
Reagan appointed first female justice in 1981 Sandra Day O'Connor
Trump replaced female Bader-Ginsburg with female Coney-Barrett
First black justice Thurgood Marshall was replaced by Thomas in 1991
Political considerations
Political climate considerations
If Senate is dominated by opposing majority then more moderate nomination required (2016 Merrick Garland)
Why nominations are so important
Appointment are infrequent (none 1994-2005)
Appointments are for life and nominees are getting younger (ACB was 48 when nominated so could serve 25-30 years)
Only 9 members so changing one is 1/9 of membership unlike Senate or House
SC of judicial review is very strong
Current idealogical balance
Definitions
Originalism - A SC justice who interprets the constitution in line with the meaning or intent of the framers at the timeof enactment
Loose constructionist - A SC justice who interprets the constitution less literally and stresses broad grants of power to the federal government
Conservative - tradition, strict constructionism, originalism
Liberal - Progressive, loose constructionism, living constitution
Strict constructionist - A SC justice who interprets the constitution literally and stresses the retention of power of the individual states
Living constitution - The constitution considered as a dynamic, living document which takes into account the views of contemporary society
Swing Justice
Court is usually a fine balance but most moderate judge is the swing justice
Until 2018 it was Anthony Kennedy
Now is right wing Chief Justice John Roberts
Current more liberal Justices: Sotomayor, Kagan, Brown Jackson
Eras of the Court
The Warren Court 1953-69 famous for delivering judgements as liberal ed Miranda v Arizona (1966)
The Burger Court 1969-86 upheld precedents of Warren could and known for checks on the President eg Roe v Wade (19730 and US v Nixon (1974)
The Rehnquist Court 1986-2005 more conservative exercising judicial restraint, heard fewer cases, upheld state power eg Bush v Gore (2000)
The Roberts Court 2005 - now
More conservative than Rehnquist due to Trump appointments eg Dobbes v Jackson (2023)
Refused to hear any cases surrounding the 2020 election result
Robert has sided with the liberal judges (eg discrimination towards LGBTQ+) despite traditionally being more right wing
Role of Judicial Activism and Restraint
Judicial activism
See's the constitution as a living document and believes that the court should use its position to promote desirable social ends (more focus on the 'spirit of the consitution'
When controversial cases are ruled on accusation of activism appear
Seen as a way to lead reform in society (eg Warren court in 1950s and 60s which tried to move society when it came to black civil rights)
Cases where the SC has seen liberal 'activism'
Brown v Board of Education of Topeka (1954) which outlawed segregation in public schools
Roe v Wade (1973) right to abortion
Obergefell v Hodges (2015) legalised same sex marriage
Cases where the SC has seen conservation 'activism'
Bush v Gore (2000) awarded Bush his presidency
Citizens United v Federal Election Commission (2002) overturning the Bipartisan Campaign Reform Act
DC v Heller (2008) expanded individual right to bear arms
From 2010 to 2019 15 federal laws have been declared unconstitutional
Accused of being an imperial judiciary when is that the courts (especially the SC) have become too powerful through powers of judicial review and impact on public policy
Criticisms
Too much leeway could lead to justices being 'politicians in robes'
If the constitution gets too modernised then it will just reflect the judges personal views over time
It extends the constitution to areas unconsidered by the founding fathers (LGBTQ+ rights) undermining the role of elected officals
Viewed as a 'Trojan horse' of liberalism ushering progressive reforms that might not have been enacted otherwise
Judicial restraint
Founding fathers wanted to keep the judiciary politically independent (why judges have life tenure and Congress can't reduce their salaries)
When a Court is more inclined to accept decisions made by elected officials
Also want to defer what has gone on previously and leave things the way they are
Doesn't want to extend 'judge-made law' and that the constitution should be searched for it original intent and that the court should not create law
Stare decisis
Legal principle that judges should look to past precedents as a guide whenever possible
Liberal example - Whole Woman's Health v Hellerstredt (2016) which defended Roe v Wade
Conservative example - Bucklew v Precythe (2019) ruled prisoners can be executed
Restraint makes the SC deferential to other branches so less likely to declare and act of Congress unconstitutional
Criticisms
Narrow focus on a 200 year old document written by non-diverse, small group of people
Original meaning is unclear eg right to bear arms apply to just state militia or everyone?
Many 'supporters' of restraint are happy to 'discover' new rights in the constitution that accord to their own political views eg 1st amendment favour businesses when it cones to politicial donations
Narrow view on entrenched rights could lead to 'popular tyranny'. The founding fathers wanted the courts to be active in defending rights that are controversial
Abortion Case Study
Roe v Wade (1973)
A vote 6 to 3 opened Mississippi's law where their judge Samuel Alito believed that the constitution doesn't confer the right to abortion
Reasons for overturning Mississippi's law
Due to nature of error
Quality of reasoning
Workability
Disruptive effect
Absence of concrete reliance
5 SC Judges believed Constitutional right to abortion
Roe v Wade allowed right to abortion but the state decided and regulated abortions before fetal viability
Allowed due to the right of privacy protection in the 14th amendment and believed abortion is included within this (personal before the state)
Planned Parenthood v Casey (1992) was the state reaffirming Roe v Wade
2022 Dobbes v Jackson
Believed that abortion didn't fall within the 14th amendment
Due to not being in text and not being in nations history and tradition (restraint, originalism etc)
Roe v Wade had ignored constitutional text, history and precedent
Casey perpetuated Roe v Wade mistakes
Argued returning this choice to the people and the elected
Conservatives argued that this still isn't personal view but is what the constitution says which is neutral not pro-life or pro-choice
How the Supreme Court impacts public policy
Shaping public policy through inaction
Planned Parenthood of Arkansas v Jegley (2018) - Stopped the state providing medication abortions which the SC refused to hear hinting at their unwillingness
Upholding existing policy
Trump v Hawaii (2018) - Upheld Trump's order of 3 bans on arrivals from some Muslim majority countries
Whole Woman's Health v Hellerstedt (2016) - Struck down Texas law which imposed strict requirements on abortion providers believing it violated Roe v Wade
Establishing new policy
Roe v Wade (1973)
Obergefell v Hodges (2015) - Argued that a ban on same sex marriage violated the 14th amendment as it denied equal protection laws
Carpenter v United States (2018) - Argued that obtaining cell phone record location violated the right to privacy which effectively made a new law surrounding use of cell phone data
Removing existing policy (challenging previous rulings)
United States v Texas (2016) - SC argued that Obama didn't have the power the pass DAPA due to article II
Dobbes v Jackson (2023) - overturned previous ruling of Roe v Wade
Citizens United v Federal Election Commission (2010) - Overturned the 2002 Bipartisan Campaign Reforms Act as it said to have violated 1st amendment which allowed for unlimited amounts of fundraising from committees for campaigns
Affirmative Action (positive discrimination)
Regents v Bakke (1978)
Split into general and special admissions
Meant that those who were white but had higher grades weren't getting in but those with lower grades and were black were getting in
Said to be a violation of equal protection clause due to racial based decisions
SC rules that universities can establish quotas but can take race into account when making decisions
Ruled quotas were unconstitutional
Grutter v Ballinger (2003)
Grutter was rejected from Michigan Law School and sued them due to racial discriminations
SC allowed race to be considered with admissions as there are educational benefits to a diverse body
Introduced strict scrutiny in admission programme and there now had to be a compelling reason and justify actions
SC ruled it as okay due to undefined critical mass (race is a plus factor)
Liberal judges said can't be the way forever but the SC still needs it at the moment
Fisher v Texas II (2016)
Furthered the positive discrimination
SC affirmed affirmative action
SFFA v Harvard and North Carolina (2023)
Challenged positive discrimination
Beginning of the end of affirmative action
The policies used by the universities were challenged
Views on positive discrimination
Conservatives - favour abolition of affirmative action for 'equality of opportunity' seeing it segregation based upon segregation (highlight groups like South East Asians that have been successful without it)
Moderate conservatives - Agrees with conservatives but recognises what it has achieved and that there will be a time when these measures aren't necessary
Moderate liberals - 'mend it, don't end it' (Clinton) suggesting the programmes need tweaking, reform over abolition
Progressive liberals - Believes it needs to continue and has further to go (Black and hispanic people are underrepresented with degrees and unequal society seen with George Floyd)
Representation
Minorities want to be represented at all 3 levels 'look like America' (Clinton)
In Congress
When Jesse Jackson was Democrat president nominee in 1984 there was only 21 black Americans in Congress
119th Congress from January 2025 most racially diverse
28% of the House from minority groups
66 Black Americans compared to 63 in 2021
Highest ever 21 Asian Americans
In the Executive
Presidency
1972 Shirley Chisholm was first major-party black American candidate competing in the Democrat primaries winning 152 delegates
Jesse Jackson
In 1984 won 3 million votes in the Democrat primaries with 4 states and 1 district
Ran again in 1988 winning 11 contests finishing 2nd
20 years until next viable candidate who was viable (Obama)
2008 Obama won candidate, election and re-election
In 2016 there was 22 major party candidates and only 3 of them were from minority groups
In 2020 none of the minority candidates made it through to the final 2 (Biden and Sanders)
2020 there was VP Harries who was a women and from a black and asian heritage
Cabinet
President Johnson appointed Robert Weaver as (HUD) becoming the first black American to head a federal executive department (so cabinet member)
20+ black Americans have headed executive departments
Biden January 2021 cabinet most racially diverse (behind Clinton)
"Going to look like the country
Harris first ever black and South Asian VP
7/16 on his cabinet who weren't white (first ever Native American)
Voting Rights
Civil rights movements encourage black Americans to vote - Voting Rights Act (1965) had removed literacy tests as they were seen as discriminatory
Shelby County v Holder (2013)
Deemed the Voting Rights Act (1965) to be unconstitutional due to 'preclearance' where states have to check with the federal government before a state changes the voting rules
Overall said that the Voting Rights Act was unconstitutional and outdated
A vote 5 to 4 to Shelby County so they no longer needed 'preclearance'
The court said the Congress can't subject a state to preclearance based simply on past discrimination
States can tinker with voting systems now leading to 1000 polling places being shut down in black-American dominated areas
Also led to people being removed off the voting registrations without knowing if they haven't re-registered recently
Obama was 'very disappointed' and called Congress to draw up a new formula to determine if states' voter laws were discriminatory
Recent developments
Turnout amongst black Americans has increased
1980 50% of black Americans compared to 61% of white
In 2012 66.6% of black Americans whereas 64% of white
Ones which poorly affect black voters
9 states introduced photo ID requirement in 2016 (Texas, Alabama, Mississippi) and black voters are statistically less likely to have ID
2016 Brennan Center for Justice estimated 6 million Americans lost their right to vote due to previous criminal convictions ('felony disenfranchisement) affected 1 in 13 black and 1 in 52 white
Husted v Randolph institute (2018) continued voting caging so if you don't vote for a while you are automatically taken off if you don't quickly respond to a mail letter (NAACP said this will heavily affect black voters
Impact in 2020 elections
Led to 2020 black turnout being 59.6% and white being 65.3%
Trump advocated for 'voter fraud'
Many Republican states made it harder to vote (decreased early voting and polling stations) as low turnout positively affects them
Congress took little action as they lost their majority in 2010
Some states (Georgia) removed all non-active voters off register (attacked Democrats who get more votes from ethnic minorities)
In the run up the SC upheld voting restrictions in Republican states (Florida allowed them to bar voters with felony convictions unless they have paid fines and fees)
Voter turnout has become politicised when it comes to voting rights and access - still a big issue
Immigration
Obama and the DREAM Act
Tried to persuade Congress to pass it as it would be a path to legitimacy and potentially citizenship
Due to fail of DREAM there was executive orders DACA and DAPA
DACA (2012) - Deferred Action on Childhood Arrivals
DAPA (2014) - Deferred Action on Parents of Americans
Deferred from deportation
SC overturned Trumps attempt to end DACA as he didn't go about it in the right was (2020)
DAPA was never implemented due to it being 4-4 in 2016 so the lower court judgement stood which was against it and it was then squashed by Trump in 2017
Rise in immigration
Rose sharply from the 1990s between 2000 and 2007 (10.3 million arrived and 1/2 were deemed illegal)
Throughout 2010s attention turned the high amount of illegal immigration through the Mexican boarder (2015 93% of illegal immigration came through here)
2006 Congress approved building 700 miles of fence and by 2010 646 miles were done and some of it was dome with 'virtual fence' which was sensors
2016 Trumps campaign of 'build a wall' and make the Mexican government pay led to a lot of voters attracted towards him