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Summary A-Level Edexcel Paper 3 US Supreme Court and Civil Rights notes
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US SUPREME COURT AND CIVIL RIGHTS4.1 THE NATURE AND ROLE OF THE SUPREME COURT
The US Constitution; the independent nature of the Supreme Court; the judicial review process (Marbury vs
Madison 1803 and Fletcher vs Peck 1810)
Arguably the US Supreme Court is the most dynamic institution in American Government and politics, in terms
of its impact on the lives of ordinary Americans. The US Supreme Court is the final arbiter of the meaning of the
US Constitution and as such has the legal power to declare any action by any other branch of the government
unconstitutional. Commentators disagree on whether it should stick rigidly to the letter of the constitution –
known as judicial restraint - or be judicially activist and interpret its spirit, where appropriate
There are NINE US Supreme Court Justices, of whom one serves as Chief Justice. Justices are appointed on the
recommendation of the President but are subject to the approval of the US Senate. The vote in the Senate is
expected to be based on merit rather than political ideology. Justices are appointed for life and so are able to
influence policy long after the president who appointed them left office.
Established by the constitution:
- Establishes a Supreme Court
- Extent of judicial power ‘to all cases in law and equity arising under the Constitution. The SC cannot
initiate cases but must wait for a constitution dispute to arise
- Life tenure for judges
- Original jurisdiction – a cause is tried at the SC and does not have to be heard first in a lower court, in
cases such as those involving constitutional disputes between states and between federal government
and the states
- Appellate jurisdiction – most cases must go to another court before being presented to the SC on appeal.
The losing side in a lower court can appeal to the next court level until finally reaching the SC
- The appointment process – all justices are nominated by the president and ratified by the Senate
Implied by the Constitution:
- The power of judicial review – the central power of the Court, allowing it to overturn any other
institution because the Court declares its actions to be unconstitutional. The Court gave itself this power
in Marbury vs Madison 1803 when it first overturned an Act of Congress. This power was further
defined in Fletcher v Peck 1810 in which the Court overturned state law for the first time. Some argue
that this power is apparent in the Constitution, as the SC is charged with upholding matters arising
under the Constitution. Others argue that the power of judicial review is not a legitimate power, as it is
not awarded to the SC by the Constitution
Established by Acts of Congress under constitutional authority:
Congress has the power to:
- Established ‘inferior courts’ – Congress determined a series of federal courts with constitutional power.
There are 13 circuit courts (or appeal courts) below the SC, the final court of appeal
- Determine the number of justices on the Court, which has long been set at 9
The independence of the court:
The Constitution ensures that the highest court in the United States Is independent from other political
institutions. This is particularly important for a constitutional court because it has the role of determining the
constitutional acceptability of the laws and actions of president and Congress. A court that is accountable to
these institutions may be unable to give a ruling that regulates the president or Congress.
Separation of powers The separation of personnel means that no one in the executive or legislature
, works closely with judges, so there is little chance of close connections or
pressure. (By contrast, in the UK, the highest court, the Law Lords, was until
recently placed inside a legislative body, the House of Lords.)
Appointment process The president cannot determine the appointment of justices alone, but instead
nominates, then the Senate accepts or rejects, having the power to ratify. This
could prevent the president appointing someone who will not act
independently, because they have close connections to the president.
Life tenure Justices are appointed for life, preventing a threat of removal. President or
Congress cannot remove a justice (though if a justice has acted illegally,
Congress can remove them through a supermajority). This gives justices the
freedom to act regardless of the wishes of the president of the day.
Salary The judicial compensation clause of article III protects the pay of judges,
stating that their pay ‘shall not be diminished during their continuance
in office’.
The judicial review process:
The SC cannot initiate a case. Cases are presented to court by an individual or institution who feels that the
Constitution has been broken. The SC receives between 7000 and 8000 cases a year. The Court has no duty to
hear a case and currently opts to hear more than 100 cases per year. In the 2015-16 term, the Court dealt with
80 cases. The Court has some discretion in determining its own constitutional priorities.
Once a case is heard, the SC discusses the case in private in order to reach a majority opinion of 5 or more. A
majority opinion is an agreement by 5 or more members. It helps set a precedent for future cases, particularly
for political institutions, organisations and individuals. The SC could choose to have narrow and limited impact,
or a broad-ranging one, when writing their opinion.
In hearing a case, the SC has the power to declare that the actions or laws of other institutions are
unconstitutional. This allows the Court to overturn those actions or laws using the power of judicial review
4.2 THE APPOINTMENT PROCESS FOR THE SUPREME COURT
Strengths and weaknesses of the process factors influencing the president’s choice of nominee; the current
composition and ideological balance of the Court
Current Supreme Court Justices:
, Chief Justice – John Roberts, appointed by George W. Bush (R), replaces William Rehnquist, in theory a
conservative
Clarence Thomas – appointed by George Bush senior (R), conservative
Amy Coney Barrett – appointed by Trump (R), conservative, replaces Ruth Bader Ginsburg (important
because there is a convention of like-for-like conventions, which this was not as Ginsburg was a liberal
appointed by Clinton)
Samuel Alito – appointed by George W. Bush, replaced Sandra Day O’Connor (swing vote), conservative, not a
like-for-like replacement
Neil Gorsuch – conservative, appointed by Trump
Brett Kavanaugh – conservative, appointed by Trump
Sonia Sotomayor – appointed by Obama, liberal
Katanji Brown Jackson – appointed by Biden, liberal
Elena Kagan – appointed by Obama, liberal
There is currently a 6-3 split (conservative-liberal)
The importance of nominations and appointments:
- There are only 9 justices
- Infrequency – America since 1945 has only seen 5 Chief Justices. It is unpredictable
- Lifetime tenures – Ginsburg, Breyer, Kennedy all served on the SC into their 80s. Recent appointments
such as Coney-Barrett and Gorsuch got in the SC when they were in their 40s so they could be in for 30
to 40 years
- The power of judicial review to affect US society – SC power to determine whether actions of the other
branches are constitutional or not. DC v Heller (2nd amendment rights) and Dobbs v Jackson (abortion)
were key rulings by the SC
- Polarisation – increasing polarised America – this is also reflected in the SC. Cyclical – Americans
becoming more polarised, politics becomes more polarised (continuous). This is seen in the fact that
Trump replaced Ginsburg with Coney-Barret (also the fact that Susan B. Anthony List influences Trump
to appoint her is significant). Federalist Society (pressure group) also tried to influence Trump SC
Justice appointments. SC Justices should be apolitical
Strengths of the process:
- It ensures independence. The life appointment and the use of separation of powers and checks and
balances, after careful scrutiny, prevent a justice feeling under obligation to any one political institution
or public opinion.
- It ensures judicial ability. As nominations are carefully scrutinised by the Senate Judiciary Committee
and rely on a full Senate vote, they are vetted for their ability to operate as a justice on the highest court
in the United States. Justices without significant legal experience are unlikely to be successful. Since the
start of the Clinton presidency, seven of the nine nominations to the Supreme Court worked in the US
circuit courts. Harriet Miers, nominated by President George W. Bush in 2005, withdrew her
nomination after heavy Senate opposition.
- It ensures personal suitability. The intensive nomination also ensures that there are no historical
concerns or character flaws. Sonia Sotomayor was questioned by some members of the Senate Judiciary
Committee who were concerned about apparent racial and gender bias, especially her publicly express
view that a ‘wise Latina’ might make a better judge than a white male. Reagan experienced failure with
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