Basic Functions of the Supreme Court

1) Highest Court of Appeals: 2 routes = highest federal court & can hear cases from state courts if constitutional issues arise.

2) Judicial Review of Government Action: gov must act within the law and the consitution - E.G Nixon/Watergate

3) Judicial Review of Legislation: Laws passed by congress can be struck down by the Supreme Court as the constitution is sovereign and therefore superior.

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Judicial Review

Marbury v Madison (1803): the doctrine of judicial review was initiated in this case and has remained a key role of the Supreme Court

Importance? Fundamental check and balance to limit other branches, Limit power of federal government, Uphold the constitution as sovereign power

Why is it controversial? Unelected group interpreting the constitution (which affects the wider population), Meant to be an unbaised body but this isnt always possible.

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Does the US Supreme Court have too much power?


  • The power of judicial review is self given
  • Unelected body with huge influence
  • Potential to make (and history of making) huge political decisions


  • There are checks in place to ensure it doesnt abuse power
  • The court has no initiation power (has to wait for cases to be presented)
  • Supreme court justices are "servants of the law" 
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Judicial Appointments Process

Who nominates all judges? Potus

Who confirms these appointments by simple majority? Senate

Which article of the constitution is this written under? Article 2

Key Facts:

  • The average time between vacancies arising is 2 years, however it does differ because justices are there until the die, unless impeached.
  • Reagan made 3 appointments in 8 years, Clinton & GWB made only 2 in 8 years. Obama made 2 in 8 years.
  • No vacancies arose between August 1994 and July 2005
  • Once nominated, the appointee appears before the Senate Judiciary Com
  • They vote and give a recommendation to the full Senate - this is usually a good indication of how the senate will vote.
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Where do SC Justices come from?


  • Federal Court of Appeals: 1 tier below SC, where most current J's come from (except Kagan)
  • State Courts: Sandra Day O'Connor (Reagan 81') came from Arizona State Court
  • Executive Branch: William Rehnquist (Nixon 71') was serving as the Justice Dep. #2
  • Members of congress:can be considered
  • State Governers: Earl Warren was governer of California when he was appointed (Eisenhower)
  • Academia: Law professors from distinguised/respected universities are an option

Factors Affecting appointments:

  • Almost always partisan
  • Philosophy = FDR: Liberal justice. TRUMP: Pro-life Justice.
  • American Bar Association give ratings for each potential candidate (NQ, Q, WQ)
  • Likelihood of senate acceptance, rejection can be politically damaging.
  • Social characteristics/events: Thurgood Marshall during the civil rights movement
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Confirmation Process

How do the nominees become Supreme Court Justices?

  • The senate judiciary committee holds hearings at which witnessess appear, including the nominee, supporters, critics and representatives of interest groups.
  • If the process goes badly, this may lead to the nominee withdrawing or to the President calling a halt to proceedings to save further embarrassment.
  • Once the hearings have concluded the committee votes on whether or not to reccommend  a vote in the full Senate.
  • Sucess in the SJC means almost certain success in the Senate; likewise a close vote or defeat in the SJC means almost certain defeat in the Senate.
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Case Study 1

Clarence Thomas:

  • Bush Sr 1999
  • SJC: 7:7. Senate: 52:48
  • Closely run contest as he is viewed as very conservative.
  • Rated Q by the ABA
  • Race and gender were both involved in the appointment proces as Professor Anitia Hillgate gave evidence to the SJC about alleged sexual assault/harrassment.
  • Thomas described the process as "high tech lynching for uppity blacks who in any way think for themselves... no job is worth what i have been through"
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Case Study 2

Harriet Miers

  • George W Bush 2005
  • Republican lawyer & Counsel (white house)
  • No experience of serving as a judge and was a close personal judge of GWB.
  • "Harriet Miers will be the type of judge i said i would nominate: a good, conservative judge"
  • Senate Judiciary Committee = She will be ill-prepared and uninformed on the law"
  • She withdrew before the ABA could rate her NQ following questioning over her credentials.

Samuel Alito was the successful nominee in her place.

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Case Study 3

Robert Bork:

  • Reagan 1987
  • He was seen as too conservative and tainted by his involvement in the Watergate affair.
  • Democrats mounted a strong campaign against him at a cost of $15b
  • Nomination was defeated 42:58 in the Senate

Anthony Scadilia was appointed successfully in his place.

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Case Study 4

Sonia Sotomayor

  • Obama 2009
  • ABA rating WQ
  • Bush Snr appointed her to federal courts = republican support
  • Clinton promoted her to court of appeals = democratic support
  • She is a strict constructionalist = "fidelity to the law"
  • SJC = 13:6
  • Senate = 68:31
  • 1st ever latino
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Philosophical Case Study 1

Brown vs the Board of Education of Topeka

Judicial Philisophy:

  • Liberal
  • Loose constructionalist
  • Activist 


  • Linking school organisation to schools, this was not specified in the constitution = loose constructionalism
  • It is activist because it strikes down Plesy vs Ferguson.
  • Liberal as it was a civil rights case.
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Philosophical Case Study 2

Miranda v Arizona

Judicial philosophy:

  • Liberal
  • Loose construction
  • Activist


  • Applying interpretation to self-incrimination/coercive police actions.= loose constructionalism
  • Strict as it uses 5th and 6th amendments.
  • Activist - overturned criminal conviction/protection of criminal right. 
  • 14th amendment using elements of 5th & 6th
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Philosophical Case Study 3

Roe v Wade

Judicial Philosophy:

  • Liberal
  • Loose constructionalist
  • Activist


  • The use of the 14th amendment (due process and privacy)
  • Stretched the meaning of the constitution
  • The court instead recognised the right to an abortion as a fundamental right included within the guarentee of personal privacy
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The Supreme Court & Judicial Review Landmark Rulin


  • Marbury v Madison (1803)/Established judicial review/Historic early case/Marshall 
  • Plesy v Ferguson (1896)/Established 'separate but equal' doctrine allowing segregation/Minority(segregation)/Fuller
  • Brown v The Board of Education of Topeka/Segregation in schools ruled unconstitutional(separate inherently unequal)/Minority rights(segregation)
  • Miranda v Arizona (1966)/Rights under arrest and when on trial/Law Enforcement/Warren
  • Roe v Wade (1973)/State laws outlawing abortion declared unconstitutional under 14th amendment/Abortion/Burger
  • US v Lopez(1995)/Gun Free Schools Zones Act declared unconstitutional/Gun Control/Rehnquist
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The Supreme Court & Judicial Review Landmark Rulin


  • Bush v Gore(2000)/Ruled a Florida recount unconstitutional thus deciding the outcome of the election/Elections/Rehnquist
  • Gonzales v Raich(2005)/Federal government may enforce federal drug laws in order to block states effort to allow marijuana use for medical purposes/Drug Control/Rehnquist.#
  • Meredith v Jefferson County Board of Education (2007)/Students being assigned to state-run schools on the basis of race in order achieve racial balance was declared unconstitutional/Minority rights(affirmative action)/Roberts
  • District of Columbia v Heller(2008)/A 1976 Columbia law banning the ownership of handguns was declared unconstitutional under the 2nd amendments/Gun Control/Roberts
  • Windsor v US(2013)/Defence of Marriage provision overturned, allowing same sex marriage/14th amendment/Roberts
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The Supreme Court & Judicial Review Landmark Rulin


  • Obergefell v Hodges(2015)/Declared same sex marriage as a constitutional right/14th amendment/Roberts
  • Arizona Sate v Arizona Independant Redistricting Commission(2015)/Upheld constitutional rights for Arizona to allow an independant commision rather than state legislation to redraw voting districts/Article 1, section 4 & 17th amendment/Roberts
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The Supreme Court & Judicial Review Landmark Rulin


  • Obergefell v Hodges(2015)/Declared same sex marriage as a constitutional right/14th amendment/Roberts
  • Arizona Sate v Arizona Independant Redistricting Commission(2015)/Upheld constitutional rights for Arizona to allow an independant commision rather than state legislation to redraw voting districts/Article 1, section 4 & 17th amendment/Roberts
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How successfully does the Supreme Court defend rig

Defends rights & liberties

  • Justices have been willing to challenge state decision decisions & overturns unpopular precedents. E.G Gregg v Georgia declared the death penalty constitutional overturning Furman v Georgia.
  • US codified constitution gives the Supreme Court right to carry out judicial review. E.G Marbury v Madison

Limited Defence of Rights & Liberties

  • Supreme Court relies upon congress and the executive branch to enforce it's decision. E.G Striking down segregation schools did not end education segregation in Brown v the Board of Education of Topeka and needed other elected branches and the Civil Rights Act 1964 passed by branches to begin actual desegregation
  • The court has regulary upheld constitutional and statutory rights even when it's unpopular - Brown v the Board of Education of Topeka and Gregg v Georgia
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How has the SC affected executive/presidential pow

  • The decision by the Rehnquist court to rule a recount in the 2000 presidential election unconstitutional (Bush v Gore 2000) was a political decision which had a major impact upon the exectuive.
  • The 8-0 vote against Nixon (US v Nixon 1974) was a check on the presidential power as it limited the power of any US president.
  • The court ruled the power granted in the Line Item Veto Act of 1996 violated the presentment clause. Clinton v City of New York 1998 voted against the POTUS having power unilaterally amend or repeal parts of the statues that had been duly passed by congress.
  • Challenged the US govs practice of holding foreign nationals in detention indefinitely who were captive in Afghanistian during the war against the Taliban. (Rasul v Bush 2004)
  •  Obamacare clause requiring family-owned corportations to pay for insurance coverage for contraception ruled unconstitutional (Burwell v Hobby Lobby 2014)
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How has the SC affected executive/presidential pow

Limits Presidential power:

  • US v Nixon: This limited presidential power as it forced Nixon to hand over the watergate tapes therefore limiting executive privilege

Restricts the power of Congress in favour of state power:

  • US v Lopez: Congress tried to pass a law that would have created Gun Free School Zones but the supreme court ruled in favour of the states and declared it unconstitutional due to the 2nd amendment.

Upholds the power of congress:

  • Gozales v Carhart: SC upheld the Partial-birth Abortion Ban Act. This bans late-term abortions in which the foetus is partially delivered and skull crushed to aid removal.
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How has the SC affected executive/presidential pow

Restricts the power of states:

  • Gonzales v Raich(2005): Federal Government may enforce federal drug in order to block states efforts to allow marijuana use for medical purposes

Is an example of strict contructionism:

  • Miranda v Arizona: Is strict constructionalism as it used the 5th and 6th amendment Miranda ensured that police had to read the rights out to anyone they arrested.

Is an example of loose constructionism:

  • Brown v the Board of Education of Topeka: linking school organisation to the 14th amendment even though it wasn't specified in the constitution

Shows the politicisation of the SC:

  • Burwell v Hobby Bobby: Ruled it unconstitutional due to the belief that the federal goverment should not be getting involved in who does & doesn't have insurance and what for.
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How has the SC affected executive/presidential pow

Shows the importance of the SC when it comes to importance social issues:

  • Brown v the Board of Education of Topeka: The SC ruled in favour of Brown. While this didnt lead to immediate desegregation in education, then ruling of 'separate but equal' as unconstitutional was a step in the right direction.

Demonstrates the adaptability of the US Constitution with regard to important issues:

  • Roe v Wade: It used the 14th amendment to uphold that it was the womans right to choose due to Section 1 of the 14th amendment (process and privacy). Streched the meaning of the constriction.

Reversed a previous SC decision:

  • Brown v the Board of Education of Topeka: ruled 'separate but equal' as unconstitutional thereby reversing a previous ruling in Plesy v Ferguson (that said it was).
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Supreme Court Philosophies


  • The Warren court is remembered mainly for ending segregation and promoting rights.
  • Expanded rights and powers in 3 ways: Civil rights, Civil liberties and the scope of federal power. 
  • Warren managed to stamp a distinctly judicial-activist, loose constructionist and living constitution / enumerated rightd legacy on the supreme court 

Was the Warren Court an example of activism or restraint?

  • This court is a liberal acivist one.
  • It is activist due to the era of civil rights.
  • The Warren Courts opposition to racial inequality and desegregation policies pushed America towards an era of democratic liberalism

An example of a case which illustrates this court's philosophy

  • Civil Rights: Brown v the Board of Education of Topeka
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Supreme Court Philosophies


  • Appointed to restore 'conservative' thinking to court, this didnt happen.
  • Largely inneffective at overturning Brennan/Warrens decisions.
  • Court of consolidation.
  • Burger was nota forceful cheif justice

Was the Burger Court an example of Restraint or Activism?

  • Generally seen as activism

Example of a case which illustrates this court's philosophy

  • Roe v Wade
  • US v Nixon
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Supreme Court Philosophies


  • Rehnquist was an overtly political conservative judge/justice.
  • States given more power
  • Argued that this was the Queen's court because of Sandra Day O'Connor
  • Rehnquist is seen as having a limited judicio-political legacy

Was the Rehnquist court seen as Activist or Restraint?

  • Generally seen as moving towards restraint but with some activism still evident

An example of a case which illustrates this court's philosphy?

  • Plesy v Ferguson
  • US v Lopez
  • Casey v Planned Parenthood
  • Van Orden v Perry
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Supreme Court Philosophies


  • Servant of the law, taken on a case by case basis.
  • Lots of 5:4 results which is reflective of the broad ideological spread on court (diversity)
  • In 8 short years, the court has made a lot of landmark decisions.
  • The court has reflected the increasing political divisions in washington and the USA

Is the Roberts Court an example of Activist or Restraint?

  • It is an example of both as the court tends to flip-flop between the two because of the wide diversity in the court.

Example of a case which illustrates this courts philosophy

  • Obergefell v Hodges
  • Windsor v US
  • Both exemplified the political divisions in the court and the US as there was controversy around both decisions.
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Analysis of Roberts Court 1

What did Roberts say about his likely role on the SC during his confirmation hearing?

  • Vowed to bring 'no agenda'
  • Promised a minimalist approach to constitutional interpretation
  • Comepared his way of interpreting the law to an 'umpire calling ball and strikes'

What has happened in practice?

  • His court calls appear to be heavily tilted towards coservatism
  • Especially in areas such as, but not limited to;
  • Abortion
  • Gun control
  • Affirmitive action
  • Campaign finance
  • Criminal Sentencing
  • Capital punishment
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Analysis of Roberts Court 2

Four Traits displayed by the Roberts Court 10/11

  • Not all Court terms are equal
    • Had a rather unremarkable session
    • However while the court didn't produce a landmark decision like Roe v Wade
    • It never the less did issue important rulings on varied and contentious topics
  • Many rulings did favour conservative outcomes
    • This was true where corporate interests were concerned but was not uniformly so
    • First amendment free speech issues elections were extended to conflict what most conservatives strongly oppose.
  • When the court is ideologically divided, Kennedy is the swing vote
  • When the court is divided, the conservative are in the majority.
    • This is compared to the amount of times it has been a liberal majority, which is significantly fewer
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The Swing Justice

What is a 'swing justice'?

  • A justice which is positioned in the centre ground surrounded between two opposing ideological blocs and regulary views cases on a case by case basis

What is the significance of a swing justice?

  • A swing justice is significant as it can be the decider between conservative idology and liberal ideology winning an issue
  • A swing justice can heavily influence whether a court is going to remembered as a liberal, activist, loose or as a conservative, restraint, strict court.
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