revision lesson; supreme court

Revision Lesson; Supreme Court

Copyright © 2016 Active Educatonpeped.org/politicalinvestigations

The US Supreme Court• Judicial review• Appointment process• Checks and balances• Landmark cases• Civil liberties


Judicial Review“The power of the judiciary to review laws and governmental

actions to see whether they conform to the Constitution. If they violate the Constitution, the court has the power to overturn them.”

Marbury v Madison (1803)Flying Fish Case Little v Barreme

(1804) Copyright © 2016 Active Educatonpeped.org/politicalinvestigations

• The Court may void any actions or statutes that come into conflict with the constitution

• Judiciary can hold other branches of government to its own interpretation of the constitution

• Example in case of Bush v. Gore (2000) where Supreme Court overturned judgement of Florida Supreme Court, making Bush the 43rd president

Judicial Review


Judicial Review and Limited Government

“The prime and most necessary function of the Court has been that of validation, not

that of invalidation. What a government of limited powers needs, at the beginning and

forever, is some means of satisfying the people that it has taken all steps humanly

possible to stay within its powers." --Professor Charles L. Black


Appointment & Confirmation Process


Steps Description Explain the power granted and how it acts as a check on another branch

President NominationPresident nominates candidates and submits the names to the Senate

Gives the President power to choose nominees for key government jobs and power to select members of another branch (the Judicial branch).

White House ReviewMembers of the Executive Branch review the qualifications of the nominee

Ensures that other members of the executive branch approve of the nominee and help ensure he/she supports the President’s efforts.

Paperwork Financial Disclosure

Nominee fills out forms (after all this is the government) and discloses information about their financial status.

FBI InvestigationFBI investigates nominees for past actions and any possible encounters with the law.

Senate Confirmation Hearings

Members of the Senate Judicial Committee interview and question nominees about a wide range of topics related to their qualifications and past cases.

Senate hearings ensure that representatives from the Legislative Branch (representing citizens) has an opportunity to verify the nominees’ qualifications.

Senate VoteThe full senate confirms or rejects the appointment of the nominee by a majority vote.

Majority vote from Senate ensures the Legislative Branch is in favour of the executive Branch’s nominee or rejects it because they feel the person isn’t qualified. Copyright © 2016 Active Educaton

peped.org/politicalinvestigations

Successful AppointmentsElena Kagan (Barack Obama) 2010• previously White House

Council and Solicitor General but no previous experience as a judge

• nomination endorsed by the deans of over a third of the nations law schools

• nomination and questioning uneventful

• described as an ‘Obama person’ i.e. moderate and favouring consensus

• approved by vote of 63-37

Sonia Sotomayor (Barack Obama) 2009• first Hispanic judge to sit

on Supreme Court bench• questioned about

comments that a Latina women would make a better decision than a white male in earlier speeches (Newt Gingrich branded her a racist)

• 3rd woman to sit on bench• approved by vote of 68-31


Rejected Nominations

Clarence Thomas (George H W Bush) 1990• race based appointment?• had never written a legal

book, article, or brief of consequence, and had been a judge for only a year

• NAACP, and NOW opposed nomination because of his opposition to affirmative action and Roe v. Wade

• sexual harassment allegations from former colleague

• approved by vote of 52-48

G Harold Carswell (Richard Nixon) 1970• nominated after

Haynsworth nomination rejected

• questionable record on civil rights, women’s rights and favoured segregation

• painted as Southern right wing extremist, strict constructionist

• rejected by vote of 51-45

Close Call Appointments


Rejected NominationsRobert Bork (Ronald Reagan) 1987• very right wing, nominated to

replace a moderate• wanted to roll back civil rights

decisions made by previous courts

• nomination opposed by civil rights groups including ACLU

• TV ads attacked him as extremist

• indicated he may have wanted to reverse Roe v. Wade


Clement Haynsworth (Richard Nixon) 1969• right wing, nominated to

replace liberal• opposed by Democrats,

liberal Republicans and NAACP

• allegedly favoured segregation and anti-labor



Checks and BalancesChecks on…Checks by… The legislature The executive The judiciary

The legislature

• Amend/delay/reject legislation

• Override president’s veto

• Power of the purse• Declare war• Ratify treaties

(Senate)• Investigation• Impeachment, trial,

conviction and removal from office

• Impeachment, trial, conviction, removal from office

• Propose constitutional amendments

• Issue new legislation to overturn rulings

The executive

• Recommend legislation

• Veto legislation

• Appointment of judges

• PardonThe judiciary • Judicial Review • Judicial Review


Checks by the Legislature• Senate confirmation of

appointments

• Congress decides how many justices

• Power of impeachment

• Congress can amend constitution


Checks by the Executive• Nominates justices

• Can support or criticise a decision


Other Checks• No power of initiation

• No enforcement powers

• Public opinion

• Can amend or overturn previous decisions


Checks on the Judiciary by the Executive• President Obama signed

into law the Lilly Ledbetter Fair Pay Act of 2009.

• This effectively overturns the Supreme Court’s infamous 2007 ruling against Ms. Ledbetter in Ledbetter v. Goodyear Tire & Rubber Co., a ruling that made it much harder for workers who have been victims of unlawful pay discrimination to obtain compensation for that discrimination.

• Presidential pardon of Randy Eugene Dyer in 2011.

• Convicted of importing and trafficking drugs from Mexico in 1975 he spent 3 years in prison. After his release he became a God-fearing family man who has preached and ministered to prisoners for over 30 years.

• Obama has pardoned only 17 people in his presidency (9 people in December 2010 and 8 people in May 2011).

EXAMPLES


Checks on the Judiciary by the Legislature• Judge G. Thomas Porteous,

a federal judge was found guilty on 4 articles of impeachment by the Senate in December 2008.

• In March 2008, the House of Representatives voted unanimously to impeach Porteous on corruption charges.

• He was found to have been corrupt, taken bribes, lied to the Senate and the FBI.

• 4 out of 27 amendments overturn Supreme Court decisions.

• The 11th Amendment overturned Chisholm v. Georgia (1793) by guaranteeing the immunity of states from lawsuits by citizens of another state or a foreign country.

• The 14th Amendment nullified Scott v. Sandford (1857) by guaranteeing the civil rights and citizenship of African Americans.

• The 16th Amendment overrode Pollock v. Farmers' Loan and Trust Co. (1895) by giving Congress the power to levy an income tax.

• The 26th Amendment negated Oregon v. Mitchell (1970) by permitting 18-year-olds to vote in state elections.

EXAMPLES


Landmark Cases• Dred Scott v. Sandford

(1857) Blacks, whether free or slaves, cannot be U.S. citizens.

• Ableman v. Booth (1859) State courts cannot issue rulings that contradict the decisions of federal courts.

• Plessy v. Ferguson (1896) Segregated facilities for blacks and whites are constitutional under the doctrine of separate but equal, which held for close to 60 years.

• Roth v. United States (1957)Obscene material is not protected by the First Amendment.

• Engel v. Vitale (1962) Government-directed prayer in public schools, even if it is denominationally neutral and non-mandatory, violates the Establishment Clause of the First Amendment.

• Roe v. Wade (1973) Struck down abortion laws restricting abortion


Landmark Cases• Near v. Minnesota (1931)

Except in rare cases, censorship is unconstitutional.

• Brown v. Board of Education (1955) Segregated schools in the several states are unconstitutional in violation of the 14th Amendment.

• United States v. Nixon (1974) Ruled that the doctrine of executive privilege is legitimate, however the President cannot invoke it in criminal cases to withhold evidence.

• Roth v. United States (1957)Obscene material is not protected by the First Amendment.

• Engel v. Vitale (1962) Government-directed prayer in public schools, even if it is denominationally neutral and non-mandatory, violates the Establishment Clause of the First Amendment.

• Roe v. Wade (1973) Struck down abortion laws restricting abortion


Landmark Cases• Texas v. Johnson (1989)

Law prohibiting burning of the American flag is unconstitutional as violating the First Amendment.

• Planned Parenthood of Seattle v. Casey (1992) Placed tighter restrictions on abortion by upholding parts of Pennsylvania's abortion laws.

• Vernonia School District 47J v. Acton (1995) Schools may implement random drug testing upon students participating in school-sponsored athletics.

• Bush v. Gore (2000)Ended the recount of ballots in Florida in the 2000 presidential election as violating the Equal Protection Clause, effectively resolving the election in favour of George W. Bush.

• Gonzales v. Carhart (2007)Held that the Congress can prohibit a specific abortion procedure known as partial-birth abortion.


Landmark Cases• United States v. Nixon

(1974) Ruled that the doctrine of executive privilege is legitimate, however the President cannot invoke it in criminal cases to withhold evidence.

• Boumediene v. Bush (2008)Foreign terrorism suspects have constitutional rights to challenge their detention at the Guantánamo Bay naval base in United States courts.


Civil liberties“Rights and freedoms that provide an individual specific rights. Civil liberties

include the rights of people, freedom of religion, and freedom of speech, and

additionally, the right to due process, to a trial, to own property, and to

privacy.”


The Importance of the Supreme Court

“The U.S. Supreme Court can be thought of as the last word in both legislative and

policy disputes. As the highest court in the land, the Supreme Court is charged with determining the constitutionality of lower court rulings. It is where the most serious civil and voting rights disputes, labor and

employment rules, and federal statutes go for final settlement.”


Judicial Activism

• differences in interpretation of the same part of the constitution over a period of time can sometimes be the equivalent of legislation e.g. Plessy v. Ferguson (1896) and Brown v. Board of Education (1954) on segregation

• can be argued court did not interpret constitution but amended it

• “The Supreme Court of the United States assumed quasi legislative authority” - John W Brocker

• drags the other two branches along

Judicial Restraint

• the court follows precedent and shows judicial restraint

• precedent can be challenged and changed but generally over a long period of time and several cases

• precedent is the norm and the Court moves slowly, if at all

• if the judiciary used power of review excessively or controversially, it may come under attack from the other two branches

• court has little power to enforce its decisions


Potential Exam Questions• Using examples, explain the limitations on the Supreme

Court’s powers. (15) • To what extent have Supreme Court Justices reflected the

political views of the Presidents who nominated them? (15) • What has been the effect of appointments to the Supreme

Court since 2005? (15) • Explain the significance of Supreme Court appointments

since 2004. (15) • In what ways is the independence of Supreme Court

Justices protected? (15) • Why is the issue of the composition of the Supreme Court

so controversial? (15) • How are Supreme Court judges appointed, and why has the

process become so politically controversial? (15) Copyright © 2016 Active Educaton


Potential Exam Questions• ‘The Supreme Court should interpret the Constitution

and its amendments by establishing their original meaning when they were adopted.’ Discuss. (45)

• Are Supreme Court justices ‘politicians in disguise’? (45)

• Does the Supreme Court have too much power for an unelected body? (45)

• Judicial activism cannot be justified.’ Discuss. (45) • A political, not a judicial institution.’ Discuss this view

of the Supreme Court. (45) • Can the Bill of Rights be respected while the threat of

terrorism remains? (45) Copyright © 2016 Active Educaton
