Third branch of US gov't
Comes from Article III
Guardian of the sovereign, entrenched doc. - fundamental law and core values (Const.)
Why is it so imp.?
- Power of constitutional interpretation
- Resolves conflicts
- Convention - SC has power of JUDICIAL REVIEW:
- Can decalre full/parts of laws unconstitutional. More powerful than UK JR
- Example would be the use of the line-item veto struck down in Clinton v City of NY 1998
- Pres. actions can be unconstitutional too, eg. Nixon 1973
- Found power of JR in Marbury v Madison 1803
- This was extended to state law too in McCullock v Maryland 1819
Supreme Court justice appointment
- Arguably infuenced more by political than judicial factors
- Pres. nom. then confirm. by Senate with simple maj.
- Can be a prob. w/ divided gov't
- Political acceptability (determ. by Litmus Test) is key
- SCJ can be on Court for decades - (avg. ten. 16yrs, longest John Marshall 34yrs), Pres only 8y
- Can gain pres support from key groups, e.g. LBJ's appointment 1967 of first black justice Thurgood Marshall / Reagan first female 1981 Sandra Day O'Connor / Obama first hispanic Sonia Sotomayor 2009
- Repub - cons justices, Demo. - lib justices
- cons - strict constructionists, lib - loose constructionists
- swing justices are key when replacing - can shift balance of court e.g. Sandra Day O'Connor -> Samuel Alito 2006 (cons)
- Contraversial - 1987 Robert Bork rej. as cons views not good for Democrat-controlled Senate (Reagan)
- Clarence Thomas 1991 - Anita Hill claimed sexual harassment, ABA gave him "qualified" only justice ever to not receive "well-qualified" confirmed on just 52 - 48, because black accused them of "high-tech lynching" (G. H. W. Bush)
- 2005 - Harriet Miers (G. W. Bush) withdrawn - clearly not enough knowledge
President's power of nominations
- Only when there is a vacancy - some have loads (Reagan (3), George Bush (2), G. W, Bush (2), Clinton (2), Obama (2), yet Carter (0)
- Cannot remove justices once appointed - if they are not how you wanted them- tough. e.g. David Souter (more lib than Bush expected)- no guarentee they will do what you want them to - e.g. Eisenhower's "biggest damn fool mistake" as nominating Earl Warren as CJ - most activist court in history
- Justices are not loyal to any admin. - they are independent
- Current SC = 5 cons, 4 libs - but not really a predictable court
- JUDICIAL INDEPENDENCE
- Key to judicial independence is security of tenure.
- William Taft only person to be Pres. + CJ, mixing branches
- JUDICIAL PHILOSOPHY
- Warren + Burger courts were judicially activist/
- Rehnquist court was more judicially restrained
- Current one shows some degree of activism
- Judicial activism = loose contructionism (gen =) lib e.g. Ruth Bader-Ginsburg
- Judicial restraint = strict constructionism (gen=) cons e.g. Scalia
- Roe v Wade (1973) - abortion rights ( XIV amend. )
- Brown v Board of Education of Topeka, Kansas (1954) ( XIV amend. )
- Miranda v Arizona (1966) - Miranda rights ( V and XIV amend. )
- Bush v Gore (2000) - Judiciary acting ultra vires? ( art. II and XIV amend. )
- Gonzales v Carhart (2007) - banning partial-birth abortions ( XIV amend. ) - eroded Roe v Wade - never removed it
- Citizens United v Federal Elections Commission (FEC) (2010) - campaign finance ( I amend. )
- Patient Protection and Affodable Care Act (PPACA) - National Federation of Independent Business v Sebelius (2012) (ObamaCare) ( art. I ) (Roberts sided with libs, said it was a tax)
Protection of rights
- Bill of Rights (ratified in 1791) - entrenched rights of the citizens, first 10 amends. to Const.
- Activist course through loose constructionism that extend rights - but Roberts Court might be proving an exception to that - esp. in 1st Amend. cases
- Rights of Minorities - Grutter v Bollinger 2003 - racial profiling for uni OK - specific way though
- Religion - Engel v Vitale (1962) - upheld 1st Amend. of freedom of religion
- Freedom of speech - Texas v Johnson (1989) - struck down state law banning desecration of the flag as damaging 1st amend. Also Citizens United v FEC 2010
- Right to bear arms - District of Columbia v Heller 2008 - got rid of Washington DC handgun ban, violation of 2nd Amend.
Main constraints on SC
- Reactive court - does not initiate its own cases
- Congress has power to alter, or attempt to alter, no. of justices on court. Threatened during New Deal by FDR - 1937 wanted 6 more justices so they would be lib, to 'pack the court' to pass parts of the New Deal quicker
- SC interpretation of const. can be overturned by constitutional amend.
- Court can exercise judicial self-restraint by refusing to hear cases. e.g. Schiavo 'right to die' case in 2005.
- Hamilton - 'least dangerous branch'. -lacks both power of the purse, and power of the sword. Has to rely on political + public acceptance - e.g. reaction to Brown vs Board of Education ruling in the South, Eisenhower had to send in fed. troops
- Some SC decisions are ignored - several states have placed legal restrictions in the way of women seeking abortions
Political or judicial body?
- Maj. pol. issues affecting American ppl. e.g. abortion (am.XIV), guns (am.II), discrimination (am.XIV), terrorism solutions (am.IV), death penalty 'cruel and unusual punishment' (am.VIII)
- Judicial review - can strike down decisions made by democratic elected reps.
- independent judicial insitution. - follows judicial procedures - not politicians reps and accountable to electorate
- Central paradox:
- So much pride in its elective democracy, is the existence of the unelected SC and its unchecked power to decide crucial moral issues
Comparisons with UK judiciary
- UK - no entrenched codified const.
- Parl. sov in uk, const. sov. in US
- UK jud. is less powerful - can only issue 'declarations of incompatibility'
- Rights are less protected in UK - not entrenched
- Constitutional Reform Act 2005 (CRA) - independent appointment body (JAC) Judicial Appointments Commission
Judicial overreach - overreaching const. power
Judicial supremacy - what people claim is happening - not supposed to be!
99% of cases presented are not heard by the SC