Who is currently in the Supreme Court?
- John Roberts - Strict constructionist
- Antonin Scalia - Strict construstionist
- Samuel Alito - Strict constructionist
- Clarence Thomas - Strict constructionist
- Ruth Bader Ginsburg - Loose constructionist
- Stephen Breyer - Loose constructionist
- Sonia Sotomayor - Loose constructionist
- Elena Kagan - Loose constructionist
- Anthony Kennedy - Swing justice
What is a strict constructionist?
- Interprets the Constitution in a strict, literal or conservative fashion,
- Tends to stress the retention of as much power as possible by the governments of the individual states
- Focus on the content of the Constitution
- Tend to be appointed by Republican presidents
What is a loose constructionist?
- Interprets the Constituion in a loose or liberal fashion
- Tends to stress the broad grants of power to the federal government
- Focus on the context of the Constitution
- Tend to be appointed by Democrat presidents
What is judicial activism?
An approach to judicial decision making which holds that a judge should use his or her position to promote desirable social ends
What is judicial restraint?
An approach to judicial decision making which holds that a judge should defer to the legislative and executive branches, which are politically accountable to the voters, and should put great stress on the precedent established in previous court decisions
What is the appointment and confirmation process?
- A vacancy occurs through death, retirement or impeachment
- The president instigates a search for possible nominees and interviews short-listed candidates
- The president announces his nominee
- The Senate confrimation process begins in the Senate Judiciary Committee and ends up on the floor of the Senate
What is the president looking for in a nominee?
- Previous experience
- Able to hold up against opposition criticism
- Good in the media
- A consistent political attitude
- Similar political philosophy (pack the court)
- Maybe a minority - to make the bench look like America
What are the potential problems of the process?
- Politicisation by the president
- Politicisation by the Senate
- Politicisation by the media
Politicisation by the president
- Want to pick a judge with similar views
- Danger that presidents use a 'litmus test' on nominees
- Try to shape the thinking of the nations' highest court
Politicisation by the Senate
- Can unfairly attack potential candidates meaning a biased choice e.g. Robert Bork, one of best scholars of his time had a $15m dollar ad campaign against him launched by interest groups influenced by Democrat opponents on the Senate Judiciary Committee
- Will look for scandal to harm a nominee's chances e.g. The Senate could have picked up on Clarence Thomas' lack of qualifications but instead focused on the allegations of sexual harassment. "This is a circus. A national disgrace."
Politicisation by the media
- Feeding frenzy on any gossip e.g. Clarence Thomas
- Are known to twist words
What is judicial review?
The power of the Supreme Court to declare acts of congress, or actions of the executive - or acts or actions of state governments - unconstituional, and thereby null and void
- The court can, in effect, update the words of the constitution
- Gives the court importance but also turns it into a quasi-legislative body
- The decisions the court makes almost have the effect of a law being passed by congress
- Sometimes described as a 'third house of the legislature'
- Roe Vs. Wade, 1973 upheld the constitutional right to have an abortion. This decision is comparable to an abortion rights law passed by congress
Checks on the judiciary by the legislature
- Impeachment, trial, conviction and removal from office
- Propose consitutional amendments
Checks on the judiciary by the executive
- Appointment of judges
What is an echo chamber?
Where justices sit on the bench longer than the president who appointed them stays on office e.g. justice Scalia was appointed by presidentReagan in 1986