The judicial branch of government: the Supreme Court

There are no requirements regarding nationality, age or the number of justices. 

The current number of nine justies is set out in a federal law of 1869 and could be varied if Congress and the president agreed. 

Appointment is for life or until a justice decides to retire. 

Its most important power, the power of judicial review derives from a legal precedent from the 1803 case Marbury v Madison. 

When it comes to appointing Supreme Court justices, these points should be noted:

1. In theory a president has free choice, in reality they need to pick someone who is legally well qualified, such as a judge in a lower court or a law professor - and someone who is likely to be confirmed by the Senate.

2. When a president nominates a candidate, they normally sound out senators from their party to maximise the chances of a smooth passage. 

3. Once formally nominated, the candidate is questioned by the Senate Judiciary Committee, allowing senators to find out where nominees stand on issues such as abortion and gun rights. The vote is only advisory but a poor performance or a close vote in the committee stage can suggest a difficult time when the nomination goes before the whole Senate. 

4. It is rare for the Supreme Court to reject a nomination. The last time this happened was in 1987 when Reagan appointee William Bork was rejected by a margin of 58-42. Bork was largely rejected for ideological reasons, being seen as too conservative. 

5. Presidents are keen to get a justice appointed who reflects their own political and ideological outlook as the Court plays a key role in policy, politics and rights.

The appointment process is highly politicised and is more about ensuring a potential judge is legally experienced and qualified enough for the post. 

Due to the principal of constitutional sovereignty, all laws and executive actions must fall within the bounds of the Constitution, and through its 'discovered power' of judicial review the Constitution is what the Supreme Court of the day says it is. 

Many would say that the Court has a unique role in both reflecting and shaping popular attitudes. For example, the rulings agaisnt racial segregation in the Deep South and upholding civil rights legislation forced otherwise unwilling states to act and end racial discrimination, at least officially. While race remains a sensitive issue in much of America, the Court has played a key part in ending the more overt examples of such discrimination. 

Judicial Activism

Also known as loose constructionism, this approach favours a flexible and more innovative reading of the Constitution. 

The approach sees the Constitution as a living and evolving document that needs to be understood and interpreted in the light of a contemporary society. 

It has been instrumental in protecting women's rights to an abortion in the famous Roe v. Wade case of 1973. 

Judical activism has usually been associated with liberal and progressive forces in US society, linked as it has been traditionally with causes such as feminism, anti-racism and gay rights. 

Judicial Restraint

This approach is traditionally seen as the polar opposite of judicial activism and favours a more literalist and narrow interpretation of the Constitution - strict constructionism.

Its advocates are more inclined to view the Constitution as only protecting those rights explicitly identified in the document. 

While they would have no problem in striking down a state law for argument's, they would be less inclined to overturn a law that banned the smoking of tobacco, as the right to smoke is not specified in the Constitution. 

This approach prefers to grant more power to federal and state legislatures to pass laws as they see fit, not least because they are popularly elected and democratically accountable.

Problems of defintion 

The late Justice Scalia (the judge most associated with strict constructionism) commented: 

'I am not a strict constructionist, and no one ought to be'. 

He preferred to see himself taking a 'reasonable' understanding of the text of the Constitution, not a rigidly literal one.

Republicans tend to favour judges who are pro-life, pro-religion, pro-big business, tough on law and order and pro-guns. 

Democrats tend to favour judges who are pro-choice, pro-gun control and keenly aware of the need to protect and enhance minority rights. 

Miranda v Arizona (1966)

In Miranda v Arizona, the Supreme Court ruled that detained criminal suspects, prior to police questioning, must be informed of their constitutional right to an attorney and against self-incrimination.

The case began with the 1963 arrest of Phoenix resident Ernesto Miranda, who was charged with kidnapping and robbery. Miranda was mot informed of his rights prior to the police interrogation.

At trial, the prosecution's case consisted solely of his confession while Mirnada had no lawyer present.

He appealed to the Arizona Supreme Court, claiming that the police had unconstitutionally obtained his confession. The court disagreed and upheld the conviction. 

Miranda appealed to the US Supreme Court which reviewed the case in 1966. The Supreme Court, in a 5-4 decision, ruled that the prosecution could not use Miranda's confession as evidence because the police had failed to first inform Miranda of his constitutional rights to legal representation and the right to remain silent. 

Miranda v Arizona (1966) 

• This case forced authorities to remind any suspects of their rights under the Constitution, known as the 'Miranda Rights'. It changed policing practice worldwide.

• The case is often seen as an example of judicial activism in practice, by extending some rights to criminal suspects. 

Bush v Gore (2000)

The decision essentially decided the outcome of the 2000 presidential election in a finely balanced 5-4 decision.

Although Gore won the majority of the popular vote, whoever won Florida would win the Electoral College and thus the presidency.

The result in Florida was very close and a lot hinged on the infamous 'butterfly ballots', where the manually punched holes on some ballots were not properly perforated. 

The Court ruled that Florida's court-ordered manual recount of vote ballots was unconstitutional. 

Because the results were so close, Florida law called for an automatic machine recount of ballots. The recount resulted in a dramatic tightening of the race, leaving Bush with a bare 327 vote lead out of almost 6 million ballots cast. 

Florida law allowed Gore the option of manual vote recounts in counties of his choosing as it was so close, and Gore opted for manual recounts in four counties with widespread complaints of voting machine malfunction - the butterfly ballots. 

Bush v Gore (2000)

Florida law required that the state's election results were to be certified by the Republican Secretary of State, Katherine Harris, within 7 days of the election.

Three of the four counties were unable to complete the process even by the extended deadline of 26 November.

Harris wanted to end an incomplete count with Bush still ahead, the Florida Supreme Court refused, and so Bush appealed to the Supreme Court which sided with him and Harris. 

Bush v Gore (2000)

• This case showed how the Court can get pulled into party politics.

• With all five of the majority justices being Republican appointees, many saw this as an extension of party politics into the supposedly independent judicial part of government. 

• The Court reached the view using legal argument, not the personal political views of its members. It rejected the Florida Supreme Court's recount order because it granted more protection to some ballots than to others, violating the Fourteenth Amendment's Equal Protection Clause.

• The notion of constitutional sovereignty as opposed to parliamentary sovereignty means that the US Supreme Court has far more of a direct impact on the laws and lives of its ordinary citizens. 

• Nearly every controversial and divisive issue in US politics is likely to end up in the Court. The UK Supreme Court is much less likely to be called upon to decide the legality of Parliament's or the executive's actions. 

• The selection and appointment of US Supreme Court justices is highly politicised and high profile while the UK is not. There are no political labels for UK judges like there are in the USA. 

• The UK Supreme Court is not the sole or entirely ultimate highest legal authority in the country. The highest court in Scotland is the High Court of Justiciary, which has legal supremacy on delegated matters. The ECJ in Brussels has the ultimate say over areas of law covered by EU law, at least while the UK remains an EU member. 

• Both courts are independent in the sense that they are politically and democratically unaccountable and their members do not form part of the executive or judiciary.

• Both sets of judges are appointed on a permanent basis and cannot be easily removed by the executive or legislature. 

• Neither body can initiate cases but instead must wait for them to come before them for judgement. COURTS ARE ESSENTIALLY REACTIVE.