SC is at top of judiciary, final say over legal matters

The Supreme Court The nature and role of the supreme court The US constitutio n and the Supreme court SC is at top of judiciary, final say over legal matters Constitution says judges appointed by president and confirmed by senate simple majority Once appointed, hold office for life, can only be removedby impeachment House impeaches with simple majority and then senate trials justice, 2/3 needed in senate No SC judge ever been impeachment Abe Fortas resigned SC 1968 instead of facing impeachment 1789 – Judiciary act, congress set up system of lower federal courts Below SC – 13 courts of appeals – circuit courts and below those are 94 trial courts known as district courts Once case decided at district courts, its appeal to one of the circuit courts and then to US SC court Case also can arrive at US SC from state supreme courts if questions involving state laws or governments are raised SC only hears cases that are of major constitutional significance Only the SC can judge whether the state law was unconstitutional or not .Indeed this overall power connects the nation; rather than allow each state to go its own way in economic and social affairs.SCOTUS can hear cases in the first instance, without going through the lower courts, if: case involves public ministers, two or more states, citizens in different states or the USA.The SC hears only those cases it wishes to hear . There is no automatic right to have one’s case heard before the US Supreme Court. It receives 7000-8000 cases a year The SC rejects over 96% of cases that seek to be heard there . It hears only those that it believes are of major constitutional significance.The independe nt nature of the supreme court 9 members of SC, one chief justice and 8 associate judges Number fixed since 1869, when SC in session, justices sit along bench at front of chamber Powers of chief justice are the same but has the opportunity to set tone of the court John Roberts – current chief justice - 2005 Bush appointed Trump appointed – Neil Gorsuch, Brett Cavanagh, Amy Coney Barret Why is the current court called the Roberts Court? One Chief Justice whose

name is name denotes an era of the Court’s history e.g.: Warren Court.

How does the Chief Justice get their position? The Chief Justice, like all other federal judges, is nominated by the President of the United States and confirmed to sit on the Court by the Senate.Key terms Briefs – written arguments Oral argument – delivered by each side, only 30 minutes and justices can interrupt with questions.Majority opinion – the decision of the majority of the justices.Dissenting Opinion – issued by justices who disagreed with the majority decision and explaining why.Concurring Opinion- one or more justices may be on the majority side but disagree with the reasoning behind the decision, this opinion explains their position.How each point is meant to ensure judicial independe nce Justices appointed for life Vacancies are only available if a justice dies, retires or is impeached.A justice’s salaries cannot be lowered during their time in office.Senate must approve presidential nominees to the SC.Separation of Power American Bar Association – an interest group made up of professional lawyers – rates the suitability of justices nominated.Marbury v. Madison 1803 1 / 3

‘It is emphatically the province and duty of the of the judicial department to say what the law is.’ Fletcher v. Peck 1810 Judicial Review applies to state law as well as federal law Factors that influence independe nce Article 3, congress has power to change composition of SC, remained 9 members since 1869. Consistency of 9 justices has prevented other branches attempting to fill court with allies.Congress retains power to alter composition of SC, can undermine independence by increasing number of politicised judges. Roosevelt considered increasing the size in 1930’s to overcome opposition to his New Deal legislation, was frustrated when congress declined to cooperate.Article 3, once appointed, justice is guaranteed role for life and cannot be dismissed. Salary also protected; other bodies cannot use salary as leverage.Allows autonomy and independence to make fair judgements.Justices can be removed via an impeachment process. House = majority, senate = 2/3 majority. Can be used as a political weapon. No impeachment of a justice has ever occurred.Separation of powers grants SC constitutional independence. Judicial review also court to check power of president and congress.SC lacks enforcement powers. Brown v Board of Education of Topeka (1954) dictated that southern schools should desegregate with ‘all deliberate speed’, in 1957, Governor of Faubus of Arkansas used the local militia to forcibly prevent black children from entering a high school, only on the instruction of President Eisenhower that federal troops allowed black children to enter the school.American Bar Association, ABA, rates suitability of the nominees and their understanding of law and the constitution. provides non-political quality control.Independence and neutrality of ABA recently questioned. Professor Maya Sen,

• Research suggested that female and minority judicial nominees are more

likely to receive lower ratings that white males, even after controlling for education, experience and partisanship. Clarence Thomas – only deemed qualified, treatment could be seen as an example of this bias.Appointed for life, sometimes they have ‘disappointed’ their political patrons who originally proposed and voted them to the post. All SC justices are nominated by the president and then confirmed by a simple majority vote in the senate. Elected politicians at hear of choosing composition of court.The judicial review process Marbury V Madison 1803 and Fletcher V Peck 1810 Judicial review is power of SC to declare Acts of Congress or actions of executive or actions of state governments as unconstitutional 1803 the SC found the power, first case SC declared an act of congress as unconstitutional Fletcher V Peck, the SC first declared a state law unconstitutional By judicial review, the court can update the meaning of the constitution Court decides 8 th amendment meaning ‘cruel and unusual punishments’ and decided if the 1 st amendment ‘freedom of speech’ applies to internet SC involved itself in civil ights and liberties – gives the court political importance Deals with key political issues e.g. political parties and elections e.g. its been said that the 2 main parties are separated only by the issue of abortion and the SC decides on this issue Political importance - Bush V Gore 2000, SC ruled that the manual recount scheme devised by the Florida state SC was unconstitutional as it violated the ‘equal protection’ clause of 14 th amendment Trump V Hawaii 2018 – ruled Trumps executive order was constitutional Court decisions can also have effect of law e.g. 1973 Roe V Wade was very powerful Appointme nt process 1.Vacancy occurs through voluntary retirement, death or impeachment 2.President instigates search for nominees and interviews candidates 2 / 3

(not in exam) 3.President announces nominee 4.The senate judiciary committee holds a confirmation hearing on the nominee and makes vote 5.Nomination is debated and voted on by full senate, simply majority required Trump lucky – nominated 3 whilst carter appointed none Important appointment President commissions search for candidates, uses different sources e.g. senior white house aides top officials in justice departments Increasingly lobby groups e.g. federalist society (conservative) and American constitution society (progressive) have played roles in suggesting nominations The confirmation process – nominee appears before senate judiciary committee, hearings held, witnesses close to nominee, committee then votes on whether to recommended to senate 7-7 Clarence Thomas vote Reagan Robert Bork was most recent rejection Clarence Thomas was dominated by accusations of sexual assault from Anita Hill 2016, Scalia died, Obama nominated moderate Garland but senate republicans denied to hear nomination 2018 – Brett Kavanaugh – sexual assault allegations from high school, 50-48 in senate RBG died, replaced by ACB conservative The Supreme Court and Public Policy The role of judicial activism FF wanted to keep judiciary independent, free from political pressure so judges decided cases on legal merit this is why they have life tenure and congress prohibited from reducing judicial salaries When SC makes controversial decisions, political decisions, there are accusations of political activism e.g. Marbury V Madison Tend to be associated with liberal/loose constructionism, wants reform of US society Earl Warren Chief Justice in 1950s and 60s moved along black civil rights and rights of arrested people Judicial activism sees court as equal partner with the legislative and executive branches of government

Case of liberal judicial activism:

Brown V Board of education 1954 – outlawed segregated schools Roe V Wade 1973 Obergefell V Hodges 2015 – created new policy legalising same sex marriage Case of conservative judicial activism DC V Heller 2008 – extended rights of 2 nd amendment to include individual rights to bear arms for reasons unconnected to militia Bush V Gore 2000 – awarded the presidency to George W Bush Arguments that USA now has imperial judiciary – too powerful and impact public policy People label judicial activism as decisions of the SC they disapprove off Judicial restraint Court when its more inclined to accept views and actions of elected officials Inclined to leave things as they are and defer to current laws The court exhibiting judicial restraint puts importance on judicial precedence Stare decisis – a legal principle that judges should look to past precedents as a guide whenever policy – let the decision stand Liberal judicial restraint Whole women’s health V Hellerstedt 2016 – continues Roe V Wade Conservative judicial restraint Continual defence of executive e.g. Bucklew V Precythe 2019 followed recent precedents and ruled prisoner should be executed Judicial restrain sees court defer to legislative and executive branches as they are directly accountable to voters, these judges are also less likely to declare acts of congress and state legislatures unconstitutional Criticism of judicial Judicial restraint Narrow focus on original text limits meaning and interpretations of a document

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