A2 Government & Politics Unit:4a, Topic:4 (Judicial branch/Supreme Court)

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General Comments

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 
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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  • 2005 - Harriet Miers (G. W. Bush) withdrawn - clearly not enough knowledge 
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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 
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Judicial ...

  • Key to judicial independence is security of tenure. 
  • William Taft only person to be Pres. + CJ, mixing branches
  • 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 
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Key Cases

  • 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) 
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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: 
    • 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. 
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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 
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Political or judicial body?

  • Political: 
  • 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. 
  • Judicial:
  • 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 
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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

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