GOV4AThe Government of the US

Scott Thomas | May 2013

Exam success is not a lottery!

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Session 2The Judicial Branch of

the US

The Judicial Branch

Constitutional RolePower of Judicial ReviewAppointments Political SignificanceProtection of Citizen’s RightsRelationship with Other

Branches

Supreme Court & The Constitution

Judicial Branch is Article ThreeSection 1 sets the

Supreme Court out as the only Judicial Power

No provision for number of Supreme Court justicesNo mention of Judicial

Activism

Congress can ‘ordain and establish’ new courts

Judges shall hold their office for life in ‘good

behaviour’

Structure of Federal Courts

Supreme Court sits at the top of the Federal Court systemCourt rejects 96% of the Cases brought to it

Lower courts hear majority of cases

United States Supreme Court

US Court of Appeals

US Court of Appeals

1 Court – 9 Justices

1 in each of 11 circuits1 in DC

1 Federal Circuit

1 in each 94 districts

Membership of the Supreme Court

8 Associate Justices 1 Chief JusticeAll have an ideological stance

Number is set by Congress FDR threatened to ‘pack the court’ when they continually struck down New Deal legislation

Life tenure in good behaviour

Justice Date Appointed Sitting President Ideological Balance

Chief JusticeJohn Roberts

2005 George W Bush (R) Right Leaning

Associate Justices

Antonin Scalia 1986 Ronald Reagan (R) Right Leaning

Anthony Kennedy 1988 Ronald Reagan (R) Swing Vote

Clarence Thomas 1991 George H W Bush (R) Right Leaning

Ruth Bader Ginsburg 1993 William J Clinton (D) Left Leaning

Stephen Breyer 1994 William J Clinton (D) Left Leaning

Samuel Alito 2005 George W Bush (R) Right Leaning

Sonia Sotomayor 2009 Barack H Obama (D) Left Leaning

Elena Kagan 2010 Barack H Obama (D) Left Leaning

Membership of the Supreme Court

The Roberts Court

John Roberts

Antonin Scalia Anthony Kennedy

Clarence Thomas

Ruth Bader Ginsburg

Stephen Breyer

Samuel Alito Sonia Sotomayor

Elena Kagan

Left Right

The Ideology of the Roberts Court

John RobertsAntonin Scalia

Anthony Kennedy

Clarence Thomas

Ruth Bader Ginsburg

Stephen Breyer

Samuel AlitoSonia

Sotomayor Elena Kagan

SWING VOTE

Judicial Philosophy

President’s often want to appoint Justices that fit their own ideological image

Reagan: Bork, ScaliaObama: Sotomayor, Kagan

Justices are often seen as ‘conservatives’ or ‘liberals’There are more classifications

Constructionist

Strict ConstructionistInterprets the Constitution in a literal or ‘strict’ way, look at the original intent of the Founding Fathers. Favour States rights over Federal Government. Tend to be labelled as ‘conservatives’

Loose ConstructionistInterprets the Constitution in a loose way, in which they ‘read between the lines’. They look at the context of the issue and the constitution. Favour federal government power over that of states power and rights. Tend be labelled as ‘liberals’

Activism and Restraint

Judicial ActivismJustices should use their position to promote desirable social ends. Activist courts have a large docket

Judicial RestraintJustices should not ‘legislate’ from the bench, leaving this to the legislature and executive. Greater stress should be placed upon the precedent set by previous courts. Restrained courts have a smaller docket

Appointments Process

Vacancy Occurs

Search is Instigated

FBI Background Checks

Senate hearings and confirmation

Death, Retirement or Impeachment

Advice sought from:• Advisors• Congress• Professional Bodies

Nominees can come from:• Lower Courts• Executive Branch

Legislative Branch• Academia

FBI Checks and interview with the President. ABA gives an informal ratingClarence Thomas is the last nominee to receive lower than perfect

SJC holds hearings for the candidateSometimes candidates withdraw if hearing is bad

Vote on the floor. If committee rules against, Senate typically will

Notable Appointments

Earl WarrenAppointed by

Eisenhower who said it was the

biggest god dam mistake of his life

Robert BorkReagan’s

controversial nomination, the

subject of a negative ad

campaign. Failed to confirm

David SouterAppointed by

George H W Bush he has turned out to be one of the

most liberal members of the

Court

Why is this important?

Presidents seek to leave a legacy in the courtOne of their ideological persuasion

The Court will outlive the Presidency

Examples:Reagan & George H W Bush placed right leaning judges on the Court – Bush v Gore 2000?

Judicial Review

No constitutional basis for this power

Found in Marbury v Madison 1803Allowed the Court to rule:• Acts of Congress• Executive Actions• State Law

UNCOSTITUTIONAL

The Courts you Need to KnowYear Court Year Court Year Court Year Court1953

Warren Court

1968 Warren Court

1983

Burger Court

1998

Rehnquist Court

1954 1969 1984 1999

1955 1970

Burger Court

1985 2000

1956 1971 1986

Rehnquist Court

2001

1957 1972 1987 2002

1958 1973 1988 2003

1959 1974 1989 2004

1960 1975 1990 2005

Roberts Court

1961 1976 1991 2006

1962 1977 1992 2007

1963 1978 1993 2008

1964 1979 1994 2009

1965 1980 1995 2010

1966 1981 1996 2011

1967 1982 1997 2012

Plessy v Ferguson 1856

Upheld segregation as constitutional with the reference to separate but equal

Arose from the Louisiana Separate Car Act for Rail carriages

Brown v Board of Education 1953

This case overturns Plessy v Ferguson 1896

Established that separate was inherently unequal in the provision of facilities

Paved the way for integration

Ruled on through the Equal Protection Clause of the 14th Amendment

WARREN

Mapp v Ohio 1961

Ruled that evidence obtained in the violation of the Fourth Amendment cannot be used in court

Arose from a dispute in Ohio which police didn’t have a warrant and found large amounts of pornography

WARREN

Engel v Vitale 1962

Ruled that it is unconstitutional for school prayers in public schools

This violates the First Amendment

This was the basis for more cases such as Wallace v Jaffree which banned meditation in Alabama

WARREN

Gideon v Wainwright 1963

Under the Sixth Amendment right to counsel is a fundamental right

States must provide defence counsel should the defendant be unable to afford it

WARREN

Griswold v Connecticut 1965

Protected the right to Privacy

Connecticut law prohibited the use of contraception

Supreme court ruled that it violated the right to marital privacy

Does the constitution provide for a right to privacy specifically?

WARREN

Miranda v Arizona 1966

Ruled that the accused must be read their legal rights prior to questioning by the police

Basis is the fifth amendment which protects against Self Incrimination

WARREN

Roe v Wade 1973

Ruled that abortion was legal in the first trimester

Found on the right to Privacy under the due process clause of the 14th Amendment

Texas law made it illegal to assist a woman to get an abortion

Is this legislating from the Bench?

BURG

ER

United States v Nixon 1974

Ruled that no person not even the President is completely above the lawAlso ruled that the President cannot use executive privilege as an excuse to withhold evidence in criminal trials

Started the ball rolling on Nixon Impeachment

BURG

ER

Planned Parenthood v Casey 1992

Rules on abortion in Pennsylvania were challenged

The court upheld the right to an abortion but ruled that 1 out of 5 restrictions was unconstitutional

Pennsylvania State made patients go through many ‘hoops’ before an abortion

REHN

QU

IST

Clinton v City of New York 1998

Ruled that the Line Item Veto from the Line Item Veto Act of 1996 was unconstitutional as it gave the President power to amend legislation duly passed by Congress

43 States give Governors the power of Line Item Veto

Line Item Bill appeared in the House in Feb 2012

REHN

QU

IST

George W Bush v Albert Gore 2000

Votes in Florida were close Supreme Court ruled that manually recounting a precinct was wrong and the entire state must be recounted

Proper recounting by deadline of Dec 12 would be unconstitutional

Decision handed down on Dec 11

REHN

QU

IST

Gonzales v Carhart 2007

Court upheld the Partial-Birth Abortion Ban of 2003

It did not impose a burden on the ability to have an abortion as presented under Roe V Wade and Planned Parenthood v Casey

Shown as a turning in the conservatism of the Roberts Court

ROBERTS

National Federation of Independent Business v Sebelius 2012

Court upheld Affordable Care Act requiring Americans to purchase Health Insurance by 2014

Roberts ruled that a mandate to buy insurance was an exercise of Congress’ power to collect taxes

ROBERTS

Case VisualisationYear Case Year Case Year Case Year Case1953 Brown v BoE 1968 1983 1998 Clinton v NY1954 1969 1984 1999

1955 1970 1985 2000 Bush V Gore1956 1971 1986 2001

1957 1972 1987 2002

1958 1973 Roe v Wade 1988 2003

1959 1974 US v Nixon 1989 2004

1960 1975 1990 2005

1961 Mapp v Ohio 1976 1991 2006

1962 Engel v Vitale 1977 1992 PP v Casey 2007 Gonzales v Car1963 Gideon v Wain 1978 1993 2008

1964 1979 1994 2009

1965 Griswold v CT 1980 1995 2010

1966 Miranda v AZ 1981 1996 2011

1967 1982 1997 2012 NFIB v Sebelius

Hollingsworth v Perry 2013

California’s Prop 8 Case:CSC ruled Same Sex Marriage legal in 2008

Prop 8 Banned them

Opponents are seeking a court ordered expansion of traditional marriage Case is on-going – May appear

before the Court

ROBERTS

Judicial Synoptic Links

UK Judiciary are far less partisan and far less powerful Appointments go through Judicial Appointments

Commission rather than Senate or Parliamentary Hearings

Parliamentary Sovereignty undermines UKs judicial power

Can’t rule on constitutionality but only make a declaration of incompatibility

Judges must retire at aged 70

Exam success is not a lottery!

Know your terms

Know the Articles

Know the Examples

Answer the question, the whole question and nothing but the

question