SUPREME COURT AND CIVIL RIGHTS

94 District Courts à 13 Court of Appeals (Circuit Courts) à Supreme Court of the United States

Appellate jurisdiction means Supreme Court cannot make a ruling until a case is appealed to it/ Original jurisdiction hears the case first.

Supreme Court hears only the cases it wants to hear, there is no automatic right to have one's case heard before the Supreme Court - it hears only those cases that it believes are of major constitutional significance

Members of the Supreme Court – 1 chief justice and 8 associate justices/ Number fixed by Congress and has remained unchanged since 1869

Justices are appointed by President and must be confirmed by the Senate (simple majority vote)/ have tenure as judges - members of the Court can be removed only through the impeachment process

Impeachment occurs by a simple majority call for impeachment by the House and trial by the Senate - if found guilty by the Senate by a two-thirds majority the justice is removed from office

NO SUPREME COURT JUSTICE HAS BEEN IMPEACHED EVER (Associate Justice Abe Fortas resigned from the S.C in 1968 rather than face impeachment)

Baring impeachment, justices leave the court only as a consequence of voluntary retirement or death/ Chief Justice sets the tone of the Court

The Roberts Court is composed of Roberts as Chief Justice and Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, and Stephen Breyer (remaining holdovers of the Rehnquist Court), Samuel Alito, Sonia Sotomayor, Elena Kagan and Neil Gorsuch.

Strict Constructionist

• Usually conservative in their outlook & tend to be appointed by Republican presidents.
• Interpret the Constitution as ‘originalists’ and what the Founding Fathers intended.
• Favour state rights over the federal governments.
• Language of constitution is supreme and the Court's job is to derive and apply rules from those of the framers
• Chief Justice Roberts, Neil Gorsuch, Thomas and Alito. 

The ‘living constitution’ approach to judicial interpretation holds that the constitution was written in broad and flexible terms to enable it to be adapted to the needs of a changing society, or in accordance with the ‘evolving standards of decency’, in the words of Chief Justice Warren; it contrasts with an originalist or strict constructionist approach, which places more value on the literal or original meaning of the constitution.

Loose Constructionist

• Usually liberal in their outlook & tend to be appointed by Democrat presidents.
• Look at the context of the Constitution and apply it to the modern day, rather than 'Strict Constructionism' of just looking at the text
• They see the language of the text as only the starting point of an inquiry in which a law's purpose and decision's likely consequence are the most important elements
• Interpret the constitution in a loose fashion - reading elements into document that they think the framers of the constitution would approve (see constitution as living)
• Tend to favour the power of the federal government over state's rights
• Ginsburg, Breyer, Sotomayor and Kagan.
• Anthony Kennedy is a ‘swing justice’ – voting in the majority 97% of the time.

It has been criticised because:

• If justices ‘legislate from the bench’, it gives the court the appearance of a political/legislative role which undermines the separation of powers
• If they are free to read values into the constitution, it is very likely that justices will simply impose their own
• The court is unelected and unaccountable, and undermines its legitimacy if it is seen to be advancing its own agenda; the lack of checks on the court can lead to accusations of an ‘imperial judiciary.’
• Rights which ‘living constitution’ justices read into the text are likely to be seen to lack legitimacy and cause dissent, e.g. the history of protest against the abortion rights created in Roe
• Every other law is ‘dead’ in the sense that its meaning does not alter over time, and the constitution, in particular, is supposed to embody enduring values – if it requires alteration, there is an amendment process 

The debate between originalists and those who believe in a living constitution can be well illustrated concerning the issue of capital punishment. one of the problems that the Supreme Court has had to address in recent decades is whether the death penalty is constitutional or whether it contradicts the ban on 'cruel and unusual punishment' in the eighth

To an originalist, it is clearly constitutional as:

• Capital punishment was widely accepted when the eighth was written (1791), and therefore the death penalty was not in the minds of the framers when they wrote these words/ Originalists base their constitutional interpretation on original intent// might say the only way to get rid of death penalty is through legislation
• 5th was written at the same time, actually refers to capital crime
• To someone who believes in a living constitution may argue that the death penalty is unconstitutional as:
• It violates 'the sparkling vision of the supremacy of human dignity of every individual' - Justice Brennan// might believe judicial interpretation can and should change law on capital punishment

S.C justices are sometimes classed using ideological labels ('consverative/'liberal) instead of in philosophical terms.

A judicial philosophy is a theory about how judges go about deciding big policy issues that come before them, whereas an ideology would refer to what one would like the justices to decide.

'conservative' justice could mean a justice who:

• has a strong belief int he principle of stare decisis and a respect for precedent/ or a narrow view of the Constitution (especially the BoR) somewhat akin to originalism,/ or someone who uses their power to advance a conservative political agenda
• In the first five years of all cases brought before the Roberts Court, the court issued conservative decisions 58% of the time. While the Burger and Rehnquist courts produced similar rulings at 55%, vastly different from that of the Warren court, which published conservative decisions only 34% of the time. These figures are largely due to the composition of the court itself due to the fact that four of the six most conservative justices to sit on the bench since 1937 have done so (Roberts, Alito, Scalia and Thomas) and the 'swing' justice, Kennedy, is also one of the ten most conservative in 74 years. 

• The Vacancy: Most important appointment for Presidents as tenure is for ‘life’ – outlive the presidency or even President himself (Rehnquist + Nixon served 11 years after Nixon’s death// Kennedy (appointed by Regan) is still on the S.C – 30 years after Reagan left office)
• There have been 119 appointments since 1789 (avg one every 2), a president might expect to make two appointments in four and 3/4 in 8 – some presidents do not make as many (Carter made 0 in four)  No vacancy between August 1994 and July 2005

• Search and Pools of Recruitment: President seeks advice from political advisors, Justice Department, senior WH aides, key congressmen, professional groups (American Bar Association), friends & associates.
• Mainly come from the Court of Appeals – all except Kagan from there
• Looks also at Department of Justice – Kagan was Solicitor General
• Might look at State Courts – David Souter from NH Supreme Court

• The Confirmation Process: Nominee appears before Senate Judiciary Committee with hearings of the nominee, supporters and maybe critics.
• Witnesses might be individuals w/close knowledge of the nominee or representatives of interest groups who support/oppose the nomination
• If the hearings go badly the candidate may withdraw or the President may halt it
• Harriet Miers withdrew in 2005 after Senators unconvinced about ideological credentials + opposition from Bush’s party
• After the hearings, the committee vote – normally foretells Senate approval or not but it is only recommendatory, not a decisive vote// if unanimous or overly in favour, the nomination is nearly certain to be confirmed/ lost or close vote = near-certain defeat on floor
• 12 nominations have been rejected since 1789
• 1987 Reagan’s Robert Bork lost as he’d played a role in Watergate by firing the individual prosecutor investigating = was regarded as too conservative as well as too associated with Nixon
• The 7-7 vote on Thomas = fight on Senate floor – he was confirmed but only by a margin of four votes
• Senate took no action on Obama’s nominations (Merrick Garland 2016)

• The Announcement: FBI check shortlist & President interviews 2 or 3
• President makes formal announcement attended by press, nominee, his/her family & key congressmen
• Unofficial ABA rating of ‘well qualified’, ‘qualified’ and ‘not qualified’
• Only Clarence Thomas (1991) received ‘qualified’ recently.

• Politicisation by the President: Presidents deny political consideration, but political consideration underlies the choosing of S.C. justices, BUT Presidents are tempted to choose a justice whose political and judicial philosophy reflects their own.
• E.g. the 2 Clinton appointees hold a liberal position, the conservative members of the court were appointed by Reagan & George W. Bush – giving presidents the chance to shape the courts thinking for the next 5-20 yrs.
• GOP: justice who is conservative + takes a strict and literal view of the Constitution
• DEM: want to choose a justice who is liberal + takes a looser, adaptive view of the
• ‘Litmus Test’ scrutinises previous controversial judgements to see if it aligns with the President's views. (affirmative action, capital punishment/abortion)
• Bush appointment of Souter - Souter has proved to be one of the most liberal members of the court (consistently) despite being appointed by Bush (GOP)

• Politicisation by the Senate: Democrats organised a $15 million television campaign against Bork
• Thomas in 1991 concentrated on conservative philosophy and allegations of sexual harassment rather than lack of experience. – the vote was almost entirely on party lines (nomination was v partisan)
• Alito: advocacy groups on both sides aggressively competed to shape public opinion, spent more than 2$ million in adversity
• If the president has party control of the Senate he can get just about anyone through
• Senators from president’s party tend to use the occasion to ask soft questions + not scrutinise
• Senators of the opposing party will look for opportunities to attack + embarrass the nominee/ they are often more interested in scandal, innuendo + gossip than incompetence

Confirmation process is characterised by invasive scrutiny + cruel and punishing publicity for nominee which discourages qualified people from being prepared to be nominated for high office and thereby hinders the president’s ability to govern

• Justices are now frequently confirmed on party-line votes/ no Dems voted to recommend Alito on senate judiciary comm and on floor only 4 Dems voted to confirm
• 2016: Gop-controlled senate refused to consider Merrick Garland (Obama’s nominee) following the death of Scalia 

Politicisation by the Media

• Thomas: rather than an informed debate about judicial philosophy and qualification, most of the media chose to compete for who could come up with the most lurid allegations and the most tasteless details/ Thomas himself said it was racially motivated

• They are infrequent compared to the Cabinet which can happen 2/3 times a year – sometimes there can be a long period with no vacancies at all eg 1994-2005
• These appointments are for life v. executive positions e.g. W.Bush + Roberts vs W.Bush + Rice
• Only 9 members of the Supreme Court rather than 435 House members and 100 Senators/ easier to get a majority in s.c than in Congress thus replacing one justice is a bigger deal than replacing a member of Congress
• Judicial review - Can make decisions on guns, abortion & freedom of speech.

The Supreme Court is the highest court of appeal in the US, and judicial review is the ability of the court to declare state and federal legislation, and the actions of state and federal executives, to be unconstitutional.

The reasons it has been controversial include:

• It is not a part of the constitution and was awarded by the court to itself (Marbury v Madison)
• There are no effective checks in the constitution on the power of the court
• It has enabled the court to involve itself in controversial issues (rights of racial minorities, capital punishment, gun control and freedom of speech- e.g., does FoS extend to the internet)
• It has meant that the court has an effective veto in several areas of public policy
• The court has become a ‘constitutional convention in continuous session.’
• It has undermined the legitimacy of the court and led to a perpetual debate over its role - quasi-legislative?

Judicial Restraint is the belief that justices should not seek to ‘legislate’ from the bench, this should be left to the legislature and executive. To this end, greater stress should be placed upon the rulings of lower courts. Typically restrained courts will have a smaller docket.

The Rehnquist Court is often defined as a restrained court. For example in Planned Parenthood v Casey, the court upheld the right to an abortion, continuing the decision of the Warren Court. Generally speaking, courts that are defined as restrained, tend to have a majority of conservative justices, who would favour the restrained approach to judicial rulings.

Judicial Activism is the philosophy that justices should use their position to promote desirable social outcomes from their rulings. To this end, courts that are defined as activist courts will have a large docket.

The term judicial activism is now more of a criticism of the court that handed down the rulings. It is often spoken of when a person or group doesn’t particularly like a ruling that a court has handed down. For example, anti-abortion groups would cry of judicial activism in the Supreme Court case Roe v Wade 1973.

• An activist court is one which sees itself as leading the way in the reform of American society - Court of Warl Warren – Activist in the 50s & 60s in decisions such as Brown V. Board of education Topeka (1954) and Miranda V. Arizona (1966) trying to move society along in the areas of black civil rights and the rights of arrested persons
• Warren Burger court – activist in its Roe V. Wade (1973) – rights of a woman to have an abortion was a constitutionally protected one
• Sees the court as an equal partner with the legislative and executive branches of government/ Activist judges are not inclined to be deferential to the other branches of government 

Should we be concerned? : the job of the S.C is to limit the activities of the government should they act ultra vires - the concerns is that courts can appear to lead the way in public policy making

• The court when it is more inclined to accept what has gone before – leave things as they are – more associated with justices who are strict constructionists
• Once a matter has been decided in a case – forms a precedent that should not be overturned except under pressing and changed circumstances
• E.g. a woman’s right to abortion in Roe V. Wade – see limits put on that right but not to overturn the 1973 decision completely
• Judicial restraint – court deferential to the legislative and executive branches of government – therefore less likely to declare acts of Congress or the state legislatures unconstitutional

The political importance of the court is demonstrated in the case of George W. Bush V. Albert Gore Jr (2000)- S.C. ruled manual recount scheme devised by the Florida State was unconstitutional because it violated the ‘equal protection’ clause of the 14th amendment

S.C. also ruled that because of time constraints any recount seeking to meet the December 12 deadline will be unconstitutional - seen by some to be handing the election to George W. Bush

The power of judicial review gives the court political importance but also turns it into a quasi-legislative body because decisions have almost the same effect of a law having passed by Congress/ the court has often been described as a third house of the legislature

E.g. Roe V. Wade – court stated women have the constitutional right to an abortion – effect was comparable to an abortion rights law

We need to be aware of how such decisions: Enable the court to interpret the constitution; Turn the court into a political institution; Give the court a quasi-legislative power

• At the time of its ratification, many thought the constitution provided the new federal government with overly broad powers that could be used against the states and individuals
• The first Congress proposed the Bill of Rights – first 10 amendments – initially to restrict the powers of the federal government not state Gov.
• E.g. the 1st amendment “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
• 14th amendment 1868 – constitution explicitly begin to restrict the actions of states could take against individual citizens
• S.C. relied on 2 provisions of the 14th amendment to protect individuals’ rights and liberties
• Court frequently employs the amendment’s ‘equal protection’ provision to end school segregation & promote affirmative action…
• Although enveloped in complex legal reasoning the court has used the other important provision of the 14th amendment – the due process clause to incorporate the bill of rights
• The use of due process has enabled the court to review and invalidate a wide range of state legislation
• The laws subjected to the court’s review have been approved by a majority of the respective state legislature which, in turn, was elected by a majority of the state’s voters

• The term more fully is due process of law and although no precise legal definition of the term has been made, it is understood to refer to the principle of limited government.
• There are 2 types of the due process as referred to by the courts.
• Substantive due process demands that the substance of the law must not be arbitrary, unreasonable or unconstitutional
• Procedural due process demands that the process of the law must be fair

FIRST AMENDMENT: FREEDOM OF RELIGION

• a right grounded in the constitution to preserve a level of religious freedom within the us
• a conundrum for the supreme court: how to ensure that there is no established religion while defending citizens’ rights to practice religion freely
• an insuperable problem for the court to protect religious freedoms
• prayer/bible in schools is unconstitutional as it establishes religion
• town of Greece v Galloway (2014) – legislative bodies such as town + city councils could begin meeting with even if prayers clearly favoured one particular religion – didn’t violate first in est religion
• In the 2014 Burwell v. hobby lobby case, the Supreme Court upheld the religious rights of business by exempting corporations from the patient protection and affordable health care act’s contraception mandate under the religious freedom restoration act. – rebuff to Obama administration struck down part of Obama (flagship legislation), clearly went against the administration’s stance favouring women’s rights

FIRST AMENDMENT: FREEDOM OF SPEECH

• For example, in the 2010 Citizens United v. Federal Election Commission, the Supreme Court held that the provisions of the Bipartisan Campaign Reform Act which regulated expenditures in political campaigns by corporations, unions and non-profits violate the first amendment freedom of speech rights. This can be said to be a conservative ruling as it adheres to the traditional values of free speech and individual liberties as it has effectively allowed unlimited campaign spending. (like Hobby Lobby – when it comes to rights of political speech, business corporations and labour unions have the same rights as individuals
• In 2011, in an 8-1 decision of the Snyder v. Phelps case, the court upheld freedom of expression on matters of public concern, on a public street, cannot be the basis of liability due to emotional distress even in the circumstances that the speech is viewed or interpreted as "offensive" or "outrageous". Though it is probable that the Justices would have personally opposed the actions of the Westboro Baptists Church in promoting anti-gay behaviour outside of funerals, the Justices did not allow their personal bias to affect their decision and ruled in favour of the first amendment.

SECOND AMENDMENT: GUN CONTROL

• In the 2008 District of Columbia v Heller case, the Supreme Court held that the Second Amendment protects an individual's right to possess a firearm regardless of any previous service in a militia for traditionally lawful purposes, such as self-defence within the home, another conservative value.

INTERPRETATIONS OF THE SECOND AMENDMENT:

• Is it a collective right to own guns related only to the formation of state militias? – viewpoint is taken by most liberals/ Democrats + supporters of gun control legislation (e.g. Brady Centre to Prevent Gun Violence)
• Others interpret amendment as guaranteeing an individual right to own guns – they argue that just as all the other rights and liberties (religion, free speech etc.) contained within the Bill of Rights are individual, not collective, so is this right – is the viewpoint taken by most conservatives, Republicans and groups opposing most gun control legislation e.g. NRA
• In D.C vs Heller – S.C defined that the second guarantees an individual right to guns and thus the ban was unconstitutional

THE EIGHT AMENDMENT: THE DEATH PENALTY

• 19/50 + D.C don’t use the death penalty (almost all in the northern tier of the states + the northeast, mid-Atlantic and Alaska and Hawaii)
• Six states have abolished the death penalty in the last ten years – NJ, NM, IL, CO, MA, NE
• Five states dominate the death penalty league table (top three are Texas, Oklahoma + Virginia)
• the justices have limited the use of the death penalty in the 2010 Graham v. Florida in juvenile offenders, Baze v. Rees (2008) – the lethal injection didn’t violate the 8th Amendment (not cruel + unusual)
• 2005: Roper v. Simmons - The death penalty for those who had committed their crimes under 18 years of age is unconstitutional.

ABORTION

• Roe v. Wade, 410 U.S. (1973), is a landmark decision issued in 1973 by the United States Supreme Court on the issue of the constitutionality of laws that criminalized or restricted access to abortions. The Court ruled 7–2 that a right to privacy under the Due Process Clause of the 14th Amendment extended to a woman's decision to have an abortion, but that this right must be balanced against the state's interests in regulating abortions: protecting women's health and protecting the potentiality of human life.

• In disallowing many state and federal restrictions on abortion in the United States.Roe v. Wade prompted a national debate that continues today about issues including whether, and to what extent, abortion should be legal, who should decide the legality of abortion, what methods the Supreme Court should use in constitutional adjudication, and what the role should be of religious and moral views in the political sphere. Roe v. Wade reshaped national politics, dividing much of the United States into pro-life and pro-choice camps while activating grassroots movements on both sides.

• Gonzales v. Carhart (2007), is a United States Supreme Court case that upheld the Partial-Birth Abortion Ban Act of 2003.The case reached the high court after U.S. Attorney General Alberto Gonzales appealed a ruling of the United States Court of Appeals for the Eighth Circuit in favour of LeRoy Carhart that struck down the Partial-Birth Abortion Ban Act.

It was significant because:

• For the first time in history, the court declared that specific abortion procedure could be banned + made no exception for the health of the woman, although it did provide an exception if the life of the woman was threatened. This decision was therefore seen by Dems and liberal activists groups as a serious in-road into abortion rights
• The decision had a potential political significance in terms of the party political debate on abortion. Conservative interest groups such as the national right to life committee were jubilant and the court’s decision. Whereas such groups used to see their goal as getting the court to overturn Roe v. Wade, now they take more incremental approach – the ‘chipping away’ of the decision

• The decision showed again the significance of the change in membership of the Court, with the more conservative Samuel Alito having replaced the more centrist Sandra O’Connor. In 2000, in Stenberg v Carhart, the Court had struck down a Nebraska state law prohibiting the same late-term procedure. But in that case, O’Connor had sided with the Court’s four liberal justices (Stevens, Souter, Breyer + Ginsburg) to author a majority option which, while recognising the procedure could be ‘gruesome’ it was sometimes necessary.

Whole Woman’s Health v. Hellerstedt 2016 case when the court struck down restrictions the state of Texas placed on access to abortions in abortion clinics (room has to be a certain size, have to have certain facilities etc.) - placed an undue burden on access to abortion

• Kennedy's vote (as it usually is) was critical in decisions, had he voted against, the Texan law would have been upheld (5-3; joined by Breyer, Ginsburg, Sotomayor and Kagan(Scalia had just died))
• Obama was pleased to see S.C reaffirm every woman's constitutional right to make her own reproductive choices
• was ridiculed for decision by critics - the Court was becoming 'a default medical board for the nation with no deference to state law

'Marriage equality.'

• In a series of cases brought before the Supreme Court, including the: 2015 Obergefell v. Hodges, 2009 Hollingsworth v. Perry and 2013 United States v. Windsor case, the Court legalised same-sex marriage in every state under the fourteenth amendment
• The majority took the loose constructionist position; liberty and property of the fourteenth extended to specific personal choices central to individual dignity and autonomy including intimate choice that define personal identity and beliefs
• a clear example of the loose constructionist reading things into the words of the constitution, constant use of the word 'dignity' never appears in the constitution itself
  
• a clear example of the power of judicial review being used to turn the court into a quasi-legislative body - in effect making rather than interpreting the law

• Vagueness in the specific wording of the constitution has allowed for Congress to expand its powers (commerce clause; necessary and proper clause), and it has thus fallen to the S.C from time to time to decide whether or not Congress has exceeded its powers under these provisions
• HEALTHCARE REFORM:The S.C have upheld provisions of the Patient Protection and Affordable Health Care Act in the 2012 National Federation of Independent Business v. Sebelius case by ruling that the individual mandate to buy health insurance as listed in the Patient Protection and Affordable, Health Care Act, are constitutional by reading the individual mandate as a tax, not a penalty (for not insuring) and therefore allowed/ 2017 GOP Tax Bill to come into effect in 2019, has repealed the individual mandate.
• IMMIGRATION: 2012 United States v Arizona, the Court struck down three provisions of an Arizona immigration law because they encroached on areas of congressional authority to regulate immigration. Thus the court can both protect as well as limit the powers of Congress, thereby keeping a balance between the powers of the federal government and those of the individual states

• BUSH AND GUANTANAMO BAY DETAINEES: Rasul v Bush 2004 - foreign detainees held at Guantanamo Bay have the right to contest their cases in U.S Federal courts
• Hamdan v Rumsfeld declared unconstitutional the military commissions set up by Bush Jnr to try people held at Guantanamo: put a significant limit on the commander-in-chief power even in time of war
• clipping the wings of a president who had employed not only military commissions that were struck down by this ruling but also warrantless wiretapping - broad assertions of presidential power (the Court questioned a hallmark of Bush Jnr's administration)
• Boumediene v Bush - the court held that procedures set up by the Bush administration and Congress following the Hamdan decision in 2006 were inadequate to ensure that detainees received their day in court

• OBAMA AND RECESS APPOINTMENTS: National Labor Relations Board v. Noel Canning, (2014), was a United States Supreme Court case in which the Court unanimously ruled that the President of the United States cannot use his or her authority under the Recess Appointment Clause of the United States Constitution to appoint high-level executive branch appointments when the Senate was technically still able to give advice and consent.
• Unanimously, the court found that Obama had exceeded powers in making the three NLRB appointments, it was a stunning rebuke for the P, a decision as profoundly significant as unusual, eval Sotomayor + Kagan (his nominees) found against him
  

• OBAMA AND IMMIGRATION REFORM: United States v. Texas, (2016), is a United States Supreme Court case regarding the constitutionality of the Deferred Action for Parents of Americans (DAPA) program, an equally divided Court affirmed the lower-court injunction blocking the President's program.

THE COURT'S POWER OF JUDICIAL REVIEW ENABLES IT TO INTERPRET THE CONSITUTION

• Death penalty cases + cruel and unusual in 8th written in 1791 as it applies today/ abortion + liberty in the fourteenth written in 1865 as it applies today/ first + establishment of religion also established in 1791 means today/ does freedom of speech equates to campaign finance regulation/ right to bear arms + second in the 21st century
• the Court is in effect, in these situations, amending the constitution, not by formal change of words but interpretively by changing the meaning of the words - one of the reason it is unnecessary to keep passing formal amendments to the constitution

THE COURT'S POWER OF JUDICIAL REVIEW TURNS IT INTO A POLITICAL INSTITUTION

• Because the .C makes decisions in policy areas that are politically contentious and about which the two major parties fundamentally disagree - affirmative action, the death penalty, abortion, school prayers and gun control - the court is to some extent turned into a political institution

• DEM (AS A GENERAL RULE): favour AA, abortion rights for women + gun control, oppose death penalty + school prayers
• GOP: (AS A GENERAL RULE): oppose AA, abortion rights for women + gun control but support the death penalty and school prayers
• the debate of these policies is at the centre of America elections, at national and state level / any institution which makes decisions in these kinds of areas is bound to be seen as something of a political institution

THE COURT'S POWER OF JUDICIAL REVIEW GIVES IT A QUASI-LEGISLATIVE POWER

• Many of the court's decisions have almost the same effect as if a piece of legislation had been passed. In the UL, policy matters such as abortion right, the death only + gun control,  are decided by parliament. in the USA, they are settled largely by S.C. The quasi-legislative power of the Court is seen particularly in decisions which are authored by loose constructionist judges (read things into wording of the constitution/ 'legislate from the bench), e.g., Obergefell v Hodges

THE COURT'S POWER OF JUDICIAL REVIEW ENABLES IT TO PROTECT CIVIL RIGHTS AND LIBERTIES IN TODAY'S AMERICA

• it is in the constitution that most of the fundamental rights and liberties enjoyed by Americans can be found/ all three branches of fed govt have a role to play in protecting those rights and liberties. court's power of judicial review gives institution an especially important role in protecting guaranteeing freedoms - it gives the court the power to say exactly what they mean in today's america

• the court can interpret free speech in the age of the internet + twitter/ it has allowed the court to extend the rights of racial minorities + women as society's understanding of those rights has evolved/ has allowed the court to lead where both congress and the president have been unable or unwilling

• has not always carried out this work effectively: S.C kept african americans in segregated schools for enar a century after the civil/ many see that in recent years, rights regarding abortion choice that the court gave in roe vs wade has been chipped away// other see that court doesn't protect the rights for the unborn child

YES

• The court gave itself the power of judicial review
• It has declared more acts of Congress unconstitutional asa decades have passed
• It has made decisions that are out of line with the majority of public opinion
• It is an unelected body + therefore (largely) unaccounted
• It has abused its power to bring about significant policy change (abortion, same-sex marriage
• Yes - when justices believe in a living constitution

NO

• It is checked by Congress, which may initiate constitutional amendments effectively to override decision/ can impeach justices
• The court has not initiative power
• It is dependent on the rule of law + other branches of government to enforce its decisions
• Public opinion is a restraining force on the court's power
• It is checked by the words of the constitution; where it is precise + not open to interpretation

YES

• Appointed by a politician (the president) + confirmed by politicians (Senate) - often on party lines
• Makes decisions on issues that feature in elections (abortion, gun control, immigration) over which the two parties disagree
• Some of its decisions have a quasi-legislative effect; it is as if a new law has been passed
• Some people have described it as the third house of the legislature

NO

• Its members are judges, not politicians
• The court is independent - not subject to political pressure
• Justices do not involve themselves in party policies, elections, campaign, endorsing candidates
• Make decisions based upon legal and constitutional argument, not political ideology

U.S SUPREME COURT

• Nine justices
• Appointed by the president with consent of the Senate
• All judges hear all cases (unless rescued)
• Justices have life tenure
• Presided over by the chief justice of the united states
• Justices may be removed only by impeachment (House) and trial (Senate)
• the final court of appeal for federal cases and also hears cases on appeal from states supreme courts
• rules on the constitutionality of federal and state laws
• rules on the constitutionality of actions of the federal and state executives 
• rules on the meaning of the constitution

U.K SUPREME COURT

• 12 justices
• Vacancies filled by an independent selection committee (JAC) who recommend a candidate to the lord chancellor
• between 5 and 11 justices hear cases
• Justices must retire at 70 if appointed to a judicial office after March 31, 1995; otherwise at 75
• President over by the president of the supreme court
• Justices may be removed by petition the monarch by both houses of parliament
• the final court of appeal for all UK civil cases and criminal cases in England, Wales and Northern Ireland
• cannot overrule or strike down the laws passed by the UK parliament - can interpret the laws of parliament
• rules on whether or not actions taken by ministers are ultra vires

it is vitally important in a democracy that individual judges, as well as the judiciary as a whole, are independent of all external pressures (executive, legislative, pressure groups, the media, other judges)

Judicial independence is protected by:

• judges have immunity from prosecution for any acts they carry out in the performance of their judicial function
• they also have immunity from lawsuits of defamation for what they say about parties or witnesse while hearing cases
• the salaries of judges cannot be reduced

• life tenure + prohibition of reduced salaries indicates a determination in founders to insulate judges from political pressure
• Bush v Gore 2000 which effectively handed the election to Bush through the decision to halt the recount was viewed by some as the justices wanting to ensure a Republican victory & thus engineered a short-term resolution to lock in the victory at the risk of considerable long-term costs to the credibility of the Supreme court (public lost confidence in judges guarding the law?
• 1974 United States v Nixon decided unanimously against President Nixon in a case concerning Nixon's claim of executive privilege in withholding material demanded by eh courts and Congress (Nixon's appointees Burger, Blackmun, and Powell found against him)
• 1997 Clinton v Jones Clinton's appointees Ginsbury and Breyer joined a unanimous decision rejecting Clinton's claim to immunity from prosecution while president
• trump: lower federal courts declared Muslim ban unconstitutional/ the president criticised the decision as 'outrageous' 

• In the u.s the independence of the judiciary, though well established in the culture and practice of the nation, was for many centuries obscured by the structure of the upper echelons of the court - most notably that the law lord sat in upper house of the legislature and that the nation's highest court was, in essence, a committee of the chamber // confusing overlap
• CRA 2005 separate roles of the supreme court + to Lord Chancellor but structures are still somewhat confused - Lord Chancellor also doubles as Sec of State for Justice (responsible for the efficient functioning and independence of the court
• other members of the executive hold judicial appointments (Attorney General + Solicitor General) - are legal advisers to the government + lead for the Crown in major prosecutions

• In both the UK and USA, by virtue of the cases they hear and the decisions they are obliged to make, judges are inevitably drawn into the public debate on matters of great national importance, be it in the courtroom or when chairing public inquiries into particular disasters or signal. In both systems, members of the executive branch will step in with criticism of judicial decisions 
• Texas v Johnson (1989) declared a Texas law forbidding the desecration of the U.S flag to be unconstitutional - Bush described decision as wrong dead wrong
• Citizens United v FEC: dem congressmen shouted and hollered at Preside'ns criticism of the court - but the s.c has to be expressionless (as per protocol)// s.c justices attend what is nowadays little more than a political pep rally seems somewhat incongruous with an independent judiciary
• 2016-17 when S.C ruled that parliament should play a role in triggering a50 to begin Brexit - daily mail denounced 'out of touch' judges as 'enemies of the people' who had 'declared war on democracy.'

Affirmative Action is the name given to programmes, schemes and actions that seek to give members of minority groups such as African Americans or Hispanics, a head start in key areas of public life. This could mean in higher education and schooling, or even politics.

Affirmative Action first entered the political lexicon under President Kennedy who created the Equal Employment Opportunity Commission in 1961. The task was to ensure that employment practices would be free from any form of racial bias. This work was continued under Lyndon Johnson.

As with almost any programme in the United States, affirmative action has its critics, who would normally use the phrase reverse discrimination when referring to affirmative action. There have been a number of Supreme Court cases which feature affirmative action such as Regents of the University of California v Bakke 1978, which dealt with the case of a white medical student not being admitted, despite having a higher grade than some minority candidates who were admitted. Further cases include Gratz v Bollinger 2003 and Fisher v University of Texas 2013.

• Gratz v. Bollinger, 2003 was a United States Supreme Court case regarding the University of Michigan undergraduate affirmative action admissions policy. In a 6–3 decision announced on June 23, 2003, Chief Justice Rehnquist, writing for the Court, ruled the University's point system's "predetermined point allocations" that awarded 20 points towards admission to underrepresented minorities "ensures that the diversity contributions of applicants cannot be individually assessed" and was therefore unconstitutional.
• Fisher v. University of Texas (2016) (commonly referred to as Fisher II) is a United States Supreme Court case which held that the Court of Appeals for the Fifth Circuit correctly found that the University of Texas at Austin's undergraduate admissions policy survived strict scrutiny, in accordance with Fisher v. University of Texas (2013), which ruled that strict scrutiny should be applied to determine the constitutionality of the University's race-sensitive admissions policy. //The case was remanded, and the appellate court reaffirmed the lower court’s decision by holding that the University of Texas’ use of race as a consideration in the admissions process was sufficiently narrowly tailored to the legitimate interest of promoting educational diversity and therefore satisfied strict scrutiny.

• Grutter v. Bollinger 2003, was a landmark case in which the United States Supreme Court upheld the affirmative action admissions policy of the University of Michigan Law School. Justice Sandra Day O'Connor, writing for the majority in a 5–4 decision and joined by Justices Stevens, Souter, Ginsburg, and Breyer, ruled that the University of Michigan Law School had a compelling interest in promoting class diversity. The Court held that a race-conscious admissions process that may favour "underrepresented minority groups", but that also took into account many other factors evaluated on an individual basis for every applicant, did not amount to a quota system that would have been unconstitutional under Regents of the University of California v. Bakke. The Court applied strict scrutiny that it claimed was made "no less strict" when it followed a "tradition of giving a degree of deference" "within constitutionally prescribed limits" to the university regarding the compelling nature of its interest in diversity.

• It helps to right the previous wrongs that have hindered the progress of African Americans, e.g., Martin Luther King Jnr said “ A society that has done something special against the ***** must do something special for the *****”
• Creates opportunities for those who may never have had them in the first place
• Affirmative action can help to increase diversity within society. Esp in education as it can create a diverse learning environment and increase social acceptance/tolerance. All cultural heritages are accepted. e.g., more social cohesion, less crime.
• Delivers the promise of equal opportunity, e.g., from the 1960s-95 the % of black people who graduated from university went from 5% to 15%, as well as this it draws people into occupations into jobs they would not have thought of, e.g., men into nursing, etc
• According to liberals, it has not been successful so is still required. 11% of African American still live under the 50% poverty line despite measures to increase education and job availability to. Japanese Americans were given compensation after WWII for the mistreatment they suffered and received a govt apology showing that reparations are needed.

• Reverse discrimination, white people who work hard and who are qualified may be overlooked, e.g. a white person who lives in poverty who tries hard may lose out to a middle-class African American who is less qualified
• A quota system that bears a different name
• It focuses on groups as a whole, rather than the individual
• (It may be more difficult for them to cope in these courses/positions - 2004 Stanford Law - black students in classes with white students of higher SAT scores resulted in close to half of the blacks in the bottom half of the class. 
• It benefits the most fortunate amongst the preferred group, e.g. wealthy black people, and is detrimental to the less fortunate amongst the non -preferred group, e.g. poor white people.
• It perpetuates a society based on colour and race, therefore, encourages prejudice. It sends a message that African Americans success due to preferential treatment -> can cause animosity between races, crime could increase, etc
• Can't move towards a society where race no longer counts by establishing programmes based on race to prioritise one race over another

• When asked in order to overcome past discrimination, do you favour or oppose affirmative action programmes 63% were in favour with only 29% opposed
• when pollsters asked: 'do you think affirmative action programmes designed to increase the number of black and minority students on college campuses are a good or bad thing? 60% said they were a good thing + 30% thought they were bad
• 'Do you think affirmative action programmes designed to increase the number of black and minority students on college campuses are fair or unfair?' 47% fair 42% unfair
• 'do you think that we should make every possile effort to improve the posisition of blacks and other miniorities, even if it means gviing them preferrential treatment' only 24% agreed and 72% disagrreed
  
• among the white population, only 2% said they had been helped by such programmes and 13% had been 'hurt'  - 84% were not affected at all
• african americans; 4% had been helped by the programme, 8% said they had been hurt, 87% the programmes had no effect at all

• CONSERVATIVES (found mostly in GOP): tend to favour the abolition of affirmative action programmes/ argue that society is not about 'equality' but 'equality of opportunity'/ would further suggest that an unequal society has the benefit of protecting incentives- to better oneself.
• offering 'quotas' in their view, a disincentive to hard work and self-improvement
• Conservative should point to certain minorities within the USA (immigrants from SE Asia) who have succeeded w/out the benefit of AA. programmes
• Conservatives argue that A.A. is based on a false premise - racism // 'the only way to stop discrimination by race is to stop discrimination by race.'

• MODERATES: would agree with some of the above but would be more impressed by all that A.A programmes have achieved
• if A.A has accomplished all that its supporters claim for it, there must inevitably come a time when these programmes become unnecessary - com Justice O'Connor - 25 years from now, the use of racial preferences will no longer be necessary - there is an argument for phasing out programmes// P Clinton suggest that such programmes need tweaking as their effect is more widely felt and reform rather than abolition is needed

• LIBERALS (found mostly in the Dem) see affirmative action as something that needs to continue and has much left still to do. E.g., they would point out that both African Americans + Hispanics are underrepresented regarding bachelor degree awards at American unis. Liberals would, therefore, argue that the vision of an equal society is still a vision for the future

• On July 27, 2006, President Bush became the fourth president to extend core temporary enforcement provisions of the Voting Rights Act and the second to sign a 25-year extension. On signing the bill into law, he committed his administration to "vigorously enforce the provisions of this law" and to "defend it in court."The Reauthorization bill extends for 25 years several essential enforcement provisions of the Act that would have otherwise expired in 2007. The provisions include Section 5, which requires covered jurisdictions with a long history of voting discrimination to submit any voting changes to the Department of Justice or a federal court for approval in advance of implementation; and Section 203, which provides for translated materials and translators where there are high concentrations of language minority voters with limited English proficiency.
• In the 2013 Shelby County v. Holder case, the Supreme Court ruled in favour of the states’ exemption from the Voting Rights Act, which means that states are free to make election changes without any need to get approval from the federal government, which poses a danger to voting rights of ethnic minorities/ immediately Texas announced a voter identification law that had been blocked would go into effect + that the state's redistricting maps would no longer need federal government approval

• Voter turnout has significantly increased significantly over the past 40 years/ in 1980, only 505 of eligible black voters went to polls compared with 61% of white voters - 2012: 62% of eligible black voters cast their ballot compared with less than 58% of white voters + 32% of Hispanic voters

There are more worrying developments that disproportionally affect black voters:

• 9 states introduced a photo ID requirement for all voters in the run-up to the 2016 elections. These included six states - AL, Mississippi, SC, TN, TX & VI proportions of back voters
• by 2016, the Brennan centre for justice estimated that 6 million Americans had lost their right to vote because of previous criminal convictions - 'felony disenfranchisement.' also estimated that 1 in every 13 voting-age African Americans had lost their right to vote because of a past conviction -four times higher than for all Americans (KE 26.1% disenfranchised of af-am compared to 9.1% of all races)
• Sentencing project: felony disenfranchisement has risen sharply since 1982. In 1980, just AZ + Iowa had disenfranchised more than 10% of black voters 2016: 8 states had disenfranchised more than 10% + KE, VI, FL + TN had disenfranchised over 20%

MINORITY REPRESENTATION IN CONGRESS

• 1984: 21 African American members of Congress - all in the house - due to the creation of majority-minority districts for elections to the house allowed the number to increase significantly
• 115th congress is the most racially diverse in history - 49/535 (46- H, 3 - S)// 38/535 Hispanics (34 - H, 4 - S)

MINORITY REPRESENTATION IN THE EXECUTIVE BRANCH

THE PRESIDENCY

• 1972: Shirley Chisolm became the first major-party African-American candidate when she competed in the Dem primary (won 152 delegates at the convention)
• 1984: Jesse Jackson won over 3 million votes in the democratic primaries - finished third in the contest

• 1988: Jackson ran again + won 11 contests and finished second
• 2008: was the next serious black candidate for the presidency, won + then won the second term
• are still few members of racial minorities in the usual pools of recruitment for the presidency
• 2016: of 22 declared major party presidential candidates - only one (Ben Carson) was black + two others (Bobby Jindal + Marco Rubio) were from ethnic minority groups

THE CABINET

• 1966: LBJ appointed Robert Weaver as sec of hud, weaver thus became the first African-American to head a federal executive department + be in the cabinet
• since then, 20 other African Americans have headed an executive department/ most recent is Ben Carson as HUD secretary
• most racially diverse cabinet was Obama's in 2009 - 1 African-American, 2 Chinese-Americans, two Hispanics, 1 Japanese American, 1 Lebanese-American (Holder was the only African American in Obama's cabinet in the first term - no different to Reagan/ LBJ (Obama's  election did not signal election fo 'one of us' to oval)
• 2017: lack of diversity in trump's cabinet

• A controversial issue; taps into national characteristic of America as a melting pot fo peoples/ has implications in areas of fairness, national identity, economic opportunity + homesec
• last three decades of the twentieth century showed a sharp increase in the % of the foreign-born in America// rate slowed during the first decade of this century
• illegal immigration rose sharply in the 1990s, fell sharply in 2008+9 (linked with the worsening economic conditions)
• 2013, 2014, 2015: well over half of those apprehended for attempting to enter the U.S illegally were Mexican (if one added those from El Salvador, Guatemala, Honduras (SOUTH OF MEXICO) they would in 2015 constitute 93% of all illegal 'aliens' apprehended 
• hardly surprising that the controversy regarding illegal immigration has focused on trying to secure the border between the U.S + Mexico
• 2006: Congress authorised the building of 700 miles of fence along the border/ 2010: 646 miles of it was built // 2016: Trump's promise to build a wall + make Mexico pay for it
• fall in illegal 'aliens' fell in Obama administration - could mean more entered undetected// would be illegal immigrants were deterred by increase border control
• 2008: Obama promised to succeed where Bush failed + introduce reform = DREAM Act (passed in H but failed in S) used an executive order

• civil rights appear in BoR + 15th, 24th, 26th, 19th // also appear in laws passed by Congress (VRA, LILY LED, AWDA)
• the formal enumeration in the U.K of rights is different/ no codified constitution mean that people in brain relied on 'the three pillars of liberty' (Parliament, a culture of liberty + the courts) until 1998 - HRA which incorporated the European convention on human rights into British law
• in the UK these rights are not entrenched/ are enumerated in ordinary legislation + unprotected by special amendment producers - 2015: Conservative government announced plans to replace HRA with British Bill of Rights - could be achieved by simple majorities in both houses of Parliament - civil rights in u.s enjoy more protection and a consequently more secure than in the u.k
• EFFECTIVENESS OF THE PROTECTION OF RIGHTS: role is played by all three branches of government, as well as other parts of the political system, including pressure groups, PPs & the media/ undoubtedly legislatures + judiciary which are in forefront
• Effective protection for rights + liberties is a defining character of liberal democracy. such political systems may vary in many ways according to structure + culture but w/out effection protection of right for all citizens, U.K + U.S cannot rightly claim to be a lib dem

• It is one thing to have documents (constitutions/laws) that protect rights + liberties, but constitutions and laws do not themselves offer effective protection for those rights. To be meaningful and effective, these rights need to be rigorously, consistent and impartially enforced through the political system, mostly by the courts - and, in the end, the nations' highest courts
• When discussing the effectiveness of the protection for rights, it is important to keep in mind that balancing rights is rather like balancing scales, as one group's rights are 'protected' a different group may feel their rights have been eroded or threatened

RIGHTS PROTECTION IN THE USA

• Plessy v. Ferguson 1896, was a landmark decision of the U.S. Supreme Court issued in 1896. It upheld the constitutionality of racial segregation laws for public facilities as long as the segregated facilities were equal in quality, a doctrine that came to be known as "separate but equal". - does not uphold the rights of the African-American
• 24th (1964) did not end all discrimination against racial minorities in voter registration throughout all sates
• Defence of Marriage Act (unconstitutional in Obergefell v Hodges) did not uphold rights of gays to get married
• Obergefell v Hodges (2015) did not respect the rights fo evangelical Christians to hold an orthodox view of marriage
• protection of a woman's right to abortion = decrease in protection of the rights of the unborn child
• post 9/11 - the appropriate balance between protecting rights and liberties on one hand and protecting the nation from terrorist attacks// PATRIOT ACT titled the balance too far in terms of national security, endangering the effective protection of individual rights

• new rules on the detention of immigrants, new search powers of homes + businesses as well as telephone, e-mail + financial records all caused civil rights groups considerable unease
• the existence of the detention camp at Guantanamo + other things in 'war on terror under Bush caused concern over the balance of security against rights
• in today's America, the rights of those with disabilities, those from racial minorities and those fo women, are more effectively protected than they were a half-a-century ago// has been brought about by the combined action of courts, presidents, legislators (federal + state) & pressure groups

RIGHTS PROTECTION IN THE UK

•  can be achieved by the judiciary by: judicial review, upholding provisions of HRA, declarations regarding the common law, judicial inquiries
• Parliament also has a part to play in passing legislation to enable the more effective protection of rights: Race Relations Act 1976; F.O.I 200 etc. // 2010 Equality Act consolidated all the UL's anti-discriminatory legislation into one law, protection of rights based on gender, disability, race, sexuality

• 2005 bombings: the balance between individual rights +s security// new offence of glorifying terrorism + government plans to curb hate speech + religious extremism - how are such terms defined?/ where did national security issues trump rights of freedom of religion + speech?
• USA +UK: overriding cultural belief in principal of the rule of law (supremacy of law, protection of rights form interference of govt officials, respect for law = courts' enforcement of it)
• ROLE OF PRESSURE GROUPS IN THE PROTECTION OF RIGHTS - USA: Brown v. Board of Education of Topeka, 1954, was a landmark United States Supreme Court case in which the Court declared state laws establishing separate public schools for black and white students to be unconstitutional - WAS BROUGHT BY THE NAACP
• amicus curiae briefs (one (such as a professional person or organisation) that is not a party to particular litigation but that is permitted by the court to advise it in respect to some matter of law that directly affects the case in question) - Gratz v Bolling + Grutter v Bollinger (2003)
• ACLU - one of the most influential pressure groups regarding civil rights + the courts// sometimes defend rights some Americans think are indefensible
• ACLU v Reno: SC struck down 1996  Communications Decency Act for broad banning of 'indecent' material on the internet

• ACLU has been widely criticised for defining the rights of such groups like the American Nazis, the KKK + the Nation of Islam not because they agree but because it's the right

PRESSURE GROUPS AND RIGHTS IN THE U.K

• UK PG's have been encouraged to focus their campaigning on the courts not just Parli + relevant govt depts: Countryside Alliance + challenge on fox hunting w/dogs
• Lee v. McArthur and Ashers Baking Company (2016) : Upholding the decision of the District Court, the Court of Appeal in Northern Ireland held that local business Ashers Bakery had directly discriminated against a customer by refusing to accept his order to make a customized cake with a logo of an LGBT organization and a message for supporting the legalization of gay marriage in the country. The Court held that the anti-discrimination provisions of the relevant national legislation were a proportionate interference with the appellants’ Article 10 right of freedom of expression under the European Convention on Human Rights (ECHR) as permitted under Article 10(2).
• Christian Institute took up McArthur whose legal fund fights civil right cases where Christians are prosecuted in matters concerning to practice of faith// Mr Lee's case was supported by many gays rights groups = same-sex marriage groups

• The role of pressure groups in protecting rights in the UK = USA have many contradictions
• LIBERTY: plays a similar role to ACLU, campaigned for women's right in the 30s, against the Viet war in the 60s, civil rights in NI + an early supporter of gay rights
• last two decades, Liberty has played a prominent role in defending civil rights + liberties in the UK courts// today it campaigns on issues such as the use of torture and extradition, as well as the rights of asylum seekers, refugee children + members of the UK armed forces. It is also prominent in campaigning against the issue of modern slavery

OTHER CASES:

• In 2011, the Supreme Court also blocked the USA's most significant ever sex discrimination case in Wal-Mart Stores, Inc. v. Dukes as, despite protests from the Court's liberal and libertarian justices (Justices Ginsburg, Sotomayor, Kagan and Breyer), the court's conservatives argued against the appeal and was therefore blocked. 
• In 2012, the justices also ruled unanimously in the United States v. Jones case that Department of Justice could not attach a GPS device to a vehicle to monitor its movements without cause under the fourth amendment.