The Supreme Court


membership of the court

  • there a 9 members of the SC, 1 chief justice, 8 associate justices
  • the number is fixed by cong and has remained unchanged since 1869
  • appointed by the pres
  • subject to confirmation by the senate by a simple majority
  • they hold office for 'life and good behaviour' - they can be impeached, tried and removed from office by Congress - otherwise leave by retirement or death 
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appointment process

1-the president must wait for a vacancy to occur: on average about once every 2 years - Carter made no appointments and there were no vacancies between 1994-2005

2-the pres' closest aides search for suitable candidates 

3-a shortlist is drawn up & candidates are subjected to detailed interviews and FBI background checks 

4-pres announces the nominee at a public gathering at the White House 

5-the American Bar Association traditionally offered a professional rating of the nominee

6-the nominee appears before a hearing at the Senate Judiciary Committee

7-the Senate Judiciary Committee votes on suitability of the recommened confirmation

8-nomination debated in the floor of the Senate

9-final vote taken - simple majority required 

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what is sought after in a nominee?

four main pools of recruitment:

  • federal Appeals Court - Sotomayor
  • state courts - Sandra Day O'Connor - 1981-2006
  • executive branch - Elena Kagan
  • adcademia - Kagan

-8 of current members were judges of federal appeal courts 

-Kagan was a Solicitor General in the Justice Department and as Dean of Harvard Law School

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philosophy of judges

  • loose constructionist - interprets the const in a loose/liberal fashion - tend to be Republican appointments - Roberts, Scalia, Thomas & Alito 
  • strict constructionist - interprets the const in a strict, literal/ conservative fashion - Democrat appointments - Ginsburg, Breyer, Sotomayor & Kagan
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power of judicial review


  • not mentioned in the Const 
  • court found the power for itself in the Marbury V Madison case in 1803 - 1st time the SC declared an act of Cong unconstitutional 


  • SC used its power both sparingly - (judicial restraint: an approach to judicial decision making which holds that a judge should defer to the legislative and exec branches and should put great stress on the precendent established in previous Court decisions) and at other times much more frequently - (judicial activism: an approach to judicial decision making which holds that a judge should use his or her position to promote desirable social ends)
  • by using judical review, the Court effectively udpates the words of the Const - e.g interpretation of what the terms 'cruel and unusal punishments mean'
  • strict constronctionists favour judicical restraint, loose favour activism
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constitutional bias

  • when const was written, there was convern that new fed gov had been given too much power
  • this meant the writing of the Bill of Rights 
  • 14th Amendment first began to restrict the action that states could take against individ's
  • 2 provisions of this amendment : 1- equal protection clause and 2- due process clause
  • Court's use of due process provision prevented states from depriving persons of 'life, liberty or property without due process of law' -enabling the court to review & strike down a wide range of state legislation 
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political significance of the Court

  • makes decisions in pol important and controversial matters of public policy - freedom of speech, gun control, abortion rights and AA 
  • any inst that makes decisions on contentous issues is of great pol significance 
  • using its power of judicial review, the SC has involved itself in a host of pol issues - it is a guarantor of fundamental civil rights & liberties 
  • SC seen as a pol body - its members are appointed by a politican and cofirmed by other politicans - senators 
  • pol significance of SC in case of Bush V Albert Gore - 5 weeks after the pres election the SC ruled that the manual recount scheme devised by the Florida SC was unconstitutional b/c is violated the 'equal protection' clause  of the 14th Amend
  • in the same decision, the Court ruled that given the time constraints 'it is evident that any recount seeking to meet the Dec 12 deadline will be unconstitional' 
  • The Court was viewed by some to be handing the election to Bush 
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freedom of religion

  • Allegheny County V American Civil Liberties Union 1989: the Court declared Allegheny County's Chistmas display an infringement of the 1st Amendement rights b/c it contained only religious figures, whereas in 1984, the Court had okayed the City of Pawtucket's Display, which included religious figures but also Santa & a Christmas tree
  • Lee V Weisman 1992: the Court delcared the prayer at public school grad ceremonies unconstitutional 
  • Zelman V Simmons-Harris 2002: the Court upheld Ohio's so-called 'school-voucher' programme as being neutral in terms of religion 
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freedom of speech & expression

  • Texas V Johnson 1989: a Texas state law forbidding the burning of the US flag was declared unconstitutional by the Court 
  • Watchtower Bible & Tract Society V Village of Stratton, Ohio 2002: the Court struck down a law which required people going door-to-door to get a permit beforehand
  • Snyder V Phelps 2011: the Court upheld the right of a fringe church group to stage anti-gay protests at military funerals 
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right to bear arms

  • Printz v US 1997: Court declared unconstitutional part of the 1963 Brady Act requiring local law enforcement officers to conduct background chekcs on would-be handgun purchasers during a 5-day waiting period
  • District of Columbia V Hellor 2008: Court declared unconstitional a law passed by the District of Columbia in 1976 banning the ownership of handguns and requiring shotguns and rifles to be kept unloaded and either dissassembled or trigger-locked. The Court stated for the 1st time that, in its interpretation, the 2nd Amend right 'to keep and bear arms' is an individual, rather than a merely collective right
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rights of arrested persons

  • Miranda V Arizona 1966: Court interpreted the 5th Amendment right to remain silent as extending to the right to be reminded of that right when arrested 
  • Berghuis V Thompkins 2010: the Court ruled that suspects haing been reminded of their right to remain silent must that they want to remain silent, otherwise questioning may continue
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capital punishment

  • Roper V Simmons 2005: the Court ruled that it was unconstitutional to sentence anyone to death for a crime they committed when younger than 18
  • Baze V Rees 2008: the Court decided that lethal injection did not violate the 8th Amendment ban on 'cruel and unusual punishments'
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rights of racial minorities

  • Brown V Topeka 1954: Court declared a law of the state of Kansas to be unconsitutional b/c it trasngressed the equal protection clause - led to desegragation of schools across USA
  • Adarand Consturctors V Pena 1995: Court struck down a fed gov AA programme on the employment of minority workers
  • Gratz V Bollinger 2002: Court ruled that Uni of Michigan's AA programme wa unconstitional b/c it was too 'mechanistic'
  • Parents Involved in Community Schools V Seattle District no ! & Merdith V Jefferson County Board of Ed2007: Court declared it unconstitutional to assign students to public schools soley for the purpose of achieving racial balance 
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abortion rights

  • Roe V Wade 1973: Court struck down a Texas state law forbidding abortion - it interpretted the 14th Amendment right of 'liberty' to include 'freedom of personal choice in matters of marriage and family life' and held that this right 'necessarily includes the gith ofa woman to decide whether or not to terminate her pregnancy' 
  • Gonzales V Carhart 2007: Court upheld the Partial-Birth Abortion Ban Act passed by cong in 2003. This was the 1st time the Court had declared that a specific aborttion procedure could be banned and made no exception for the health of the woman, although it did provide an exception if the life of the mother was threatened 
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checks on the court

checks by Congress: 

  • senate confirms all appointments to the SC
  • House can impeach justices and the Seante can try them - and if found guilty by 2/3 can be removed from office 
  • Cong can alter number of justices 
  • Cong can initiate const amendments 

checks by Pres:

  • pres nominates all justices
  • he can decided either to throw his pol weight behind the court or to openly criticise it
  • power of pardon

other checks:

  • the Court has no enforcement powers 
  • the Court has no initiation power - has to wait for cases to go to it 
  • public opinion can be a check on the Court 
  • some parts of the Const are unambigious & therefore not open to interpretation
  • SC may check itself in reversing earlier decisions 
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