Supreme Court

1. Shortlist drawn

2. President announces nomination

3. ABA rate

4. Hearing in front of Senate Judiciary Committee 

5. Senate J C vote of whether to recommend to senate

6. Senate debates on floor

7. Senate votes simple majority required

• Philosophy: 
• Conservative v. liberal (loose v. strict)
• Bush & Souter

• Judicial Ability
• Elena Kagen had legal career, Harriet Meirs did not so withdrew 2005

• Composition of senate
• If mainly Democratic senate, high chance republican choice or strict constructionist will be accepted

• Representation
• "looks like america" & supports group less acknowledged; Sonia Sotomayor latina & female

• Implied Power; Madbury v. Madison - constitution delegates power to interpret law to judges, constitution is law, power to interpret constitution

• Judicial activism v. Judicial restraint

• Due process: Constitution written to prevent federal government having excessive power, 14th amendment, due process & equal protection restricted state power & allowed SC to check state also. Judicial Independence gained through:

Judicial Independence gained through:

• separation of powers
• appointed not elected
• lifetime tenure & pay

Advantages

• Judicial Review - Decalare laws unconstitutional and therfore null.
• Unaccountable
• Checked least - Courts rulings can be checked through amendment but v. difficult to achieve (only 4 reversed this way-- more likely for court to reverse itself, Brown reveres Plessy

Limitation

• Congress: change size of court, impeachment & constitutional amendments 
• President: nominates & open criticism 
• Others: Enforcement power (e.g Eishenhower troops for BvBOE) 
• Initiation- appeals only
• Public Opinion - Planned Parenthoos of SE Pennsylvania v Casey

Role of supreme court in politics lead to debate whethere is should be seen as a political body or a judicial body.

Political

• Nominated and confirmed by politicians
• Increasingly idealogical in dicision making
• Judical review to declare laws unconstitutional and therefore null
• political actors and interests groups sponsor test cases for political end
• Public opinion

Judicial

• 'Neutral umpires' 
• Can rule against own preference; Justice Kennedy in Texas v. Johnson "we must make decision we do not like because they are right in the sence of the law & constitution"
• Constrained by law & precedent they've already set and don't want to overturn
• Cases decided through legal system, small % have high-profile political impact

Conservative- great value put on original meaning of text 'strict constitutionism'

• Anthony Scalia- constitution is dead. statement of fundamental principles
• Interpretation of  constitution should be objective so judgements more predictable and stable - opposed living constitution as it just reflects values of current justices.
• FF created process to amend constitution; SC finding rights in texts on controversial matters normally divisive and lack legitimacy- roe v. wade

Liberal- living constitution interpreted to make relevant to modern society 

• Constituttion written in  broad terms - framers wanted it to adapt
• Amendment process too difficult, up to SC to update 
• Society changes - 'cruel & unusual punishment' then not same as now
• 'Originalism too inflexible; no one critiscied BvBOE even though the 14th amendment on which decision was made allowed for segregation.

• Power it exercises  - Interpretation means Court has control over public policy

• Lifetime tenure - means President has influence even after he leaves office

• Polarisation - Liberal or Conservative means appointment becomes politicised. This leads to rejection of nomminees regardless of merits. e.g Kagen 3rd consecutive nominee to win with >70% 

Weak-

• The constitution is too vague, no one can claim a definitive knowledge of its meaning and court lacks legitimacy to interpret
•  As the court lacks the legitimacy of the elected branches, it should strike down legislation only if it is in flagrant breach of the constitution
• Judges are not expert in social policy and, if they attempt to substitute their judgment for the legislators, it is unlikely to produce successful policy 
• If justices are seen to use judicial review to advance their own policy preferences, they risk eroding the standing and authority of the court
• If the court reverses its own decisions, especially within a relatively short space of time, again there is a danger that its authority is undermine
•  federalism is a cornerstone of the US constitution, and, in striking down state laws, the court is denying states the legitimate right to protect regional ways of life

Strengths

• Role of the court granted by FF to protect rights

• The court’s own decisions are not immune from error and can be reversed if necessary - not imperial judiciary

 • legislators are often risk-averse, and slow to act for fear of offending one group or another; consequently, important social change can only be achieved by the court taking the lead and striking down archaic legislation – CIVIL RIGHTS/ROEvWADE

• State laws in particular are likely to promote values which have long since ceased to be acceptable – Owensboro, Kentucky illegal for woman to buy hat without husbands permission (sexist values)