The Supreme Court
Past Paper Questions
Describe how Supreme Court Justices are appointed and explain the significance of recent appointments.
Analyse the role of the Supreme Court in relation to social and moral issues.
‘Supreme Court appointments are always controversial’. Discuss.
Are Supreme Court justices ‘politicians in disguise’?
USA Constitution – Founding Fathers intentions – separation of powers and checks and balances; particularly states’ rights. Codified and entrenched – amendment ONLY by special procedures
The Supreme Court in America adjudicates on acts passed through the political system by Congress and President. The Supreme Court’s task is to declare whether an act is constitutional or unconstitutional. The Supreme Court cannot initiate a bill/act – it can only adjudicate. Presidents appoint Supreme Court judges and the Court was to play a part in the outcome of the 2000 Election.
The court is generally free to accept or reject cases for argument as it sees fit. Only where it has original jurisdiction is the Court required to hear a case.
The court has varied in size over time, but has been set at Nine since 1869
Schmidhauser notes that with very few exceptions the Justices are overwhelmingly male WASPS from socially and economically privileged backgrounds.
The Constitution is very clear about the position of the Supreme Court as stated in Article III.
“The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts that the Congress may from time to time ordain and establish.“
“The judicial power shall extend to all cases, in law and equity, arising under the Constitution, the laws of the United States and Treaties.”
US Supreme Court
Currently Nine Justices – One Chief, Eight Associates
President G W Bush has nominated 2 justices to the Supreme Court as a result of the death of Chief Justice Rehnquist and the retirement of Sandra Day O’Connor.
- John Paul Stevens was nominated in 1975 by President Ford and is considered a moderate.
- Antonio Scalia was nominated in 1986 by Reagan and is considered a “solid conservative”.
- Anthony Kennedy was nominated in 1987 by Reagan and he is considered a legal conservative.
- David Souter was nominated in 1990 by President Bush and is considered to be a legal conservative.
- Clarence Thomas is considered a conservative and was nominated in 1991 by Bush.
- Ruth Bader Ginsburg was Clinton’s first nomination in 1993. The second female justice who is considered to be a moderate liberal.
- Stephen Breyer was nominated by Clinton in 1994. He is considered to middling to conservative in his legal approach.
- **John Roberts was nominated by G W Bush in 2005 and confirmed by the Senate in September 2005. Roberts has now been replaced by Obama nominee Sotomeyer
- Samuel Alito was nominated by G W Bush and faced the Senate in January 2006. His nomination was accepted.
Reagan used his presidency to turn the Supreme Court more conservative and right wing.
Breyer, appointed by Clinton, was considered by many to be a ‘safe’ Clinton man.
Any recent rejection of a presidential nominee, has centred entirely on the belief by the Senate, that the president was trying too obviously to politically influence the Supreme Court. Bork was rejected by the Senate for being far too right wing.
Republican dominance of the Presidency since 1968 has meant that seven of the nine justices have been republican appointees, turning the bench particularly conservative. One term Carter (Democrat, 1977-1981) never had the opportunity to appoint a justice.
Nixon was ordered by the Supreme Court to hand over the so-called Watergate tapes arguing that he did not have absolute executive power to withhold them…the president does not have “
unqualified presidential immunity from the judicial process under all circumstances.”
Could be said to have had profound political implications for the credibility of presidency.
Judicial review and Judicial activism – Marbury Vs Madison (1803) established the SC’s right to hold the legislature to the account of the constitution
Activism – Brown (1954), according to Brocker, the court had assumed ‘quasi-legislative authority’ and become a political force.
Bush Vs Gore 2000 –Supreme Court ruling to halt the Florida recounts 5:4
Republican Party of Minnesota v. White (2002). In a 5–4 opinion, the court ruled that Minnesota’s requirement of judges not to discuss political issues was unconstitutional
ln 2005 Associate justice Antonio Scalia commented that the appointment process had become too politicized
To maintain the distinction between judicial and political decisions, the Founding Fathers anticipated that the judiciary would work free of political interference. Alexander Hamilton wrote:
“the complete independence of the courts of justice is peculiarly essential.”
To maintain full judicial independence, the Constitution clearly states, in Article III, that judicial power lies with the Supreme Court and the inferior federal courts established by Congress.
The Article also clearly states that judges cannot be dismissed or receive unfavourable treatment simply because they make a judgement that does not find political support and/or favour from the party in power.
The Supreme Court and the inferior Federal courts are all protected from political interference. Judges are nominated by the President and ratified by the Senate. Once appointed, they hold their position for life and can only be removed by the impeachment process.
The legislative courts established by Congress do not have the same degree of independence. Congress can remove judges, reduce their pay and vary the length of their terms in office.
Court Packing (1932) – Such blatant politicisation of the Supreme Court was rejected by Congress (New Deal)
Senate’s Refusal to Ratify Executive appointments – Bork (1987); may help maintain the independence of the judiciary
Roe V. Wade decided by the Supreme Court in 1973, upon the constitutional right to privacy. As a matter of the right to privacy and gender equality, many Democrats believe all women should have the ability to choose without governmental interference. They believe that each woman, conferring with her consience, has the right to choose for herself whether abortion is morally correct.