US Judiciary - How Does The Supreme Court Work

What Does The SC Umpire:
  • The Constitution, it must uphold it! It’s the whole point of the court.
Structure Of The SC:
  1. US Supreme Court: 1 court
  2. US Courts of Appeal: 13 circuits. 12 regional + 1 for the federal circuit
  3. US Districts: 94 districts each with Bankruptcy Court and US Court of International Trade + US Court of Federal Claims.
  • Will only hear cases which are constitutionally significant.
Membership Of The SC:
  • One chief justice, 8 associate justices. Remains fixed by Congress. Hold office or life during ‘good behaviour’. Can only be removed through impeachment via Congress.
  • House can submit impeachment and needs a simple majority but than goes to the Senate and it needs 2/3 to go through.
  • No SC justice has been impeached, one resigned before impeachment
  • John Roberts is the 16th Chief Justice in 230 years.
Distinguish Between Loose & Strict Constructionists:
  • Strict: Interprets the Constitution strictly or literally tends to stress of power through individual states.
    • ‘I follow the text of the law’ – Scalia
  • Loose: Interprets the constitution as less literally and tends to stress the grants of power to the federal government.
5 Stages Of Appointment:
  1. Vacancy through retirement, death or impeachment
  2. POTUS searches for possible nominees and interview short-listed candidates
  3. POTUS announces his candidate
  4. Senate Judiciary Committee holds confirmation hearing on the nominee and makes a vote
  5. Nominated to debated and voted on in full in the Senate. A simple majority is needed for confirmation.
Criticisms Of The Process:
  1. Politicisation By The President: POTUS are tempted to choose a justice whose views are similar to the POTUS e.g conservative judge for a Republican POTUS, liberal judge for a Democrat POTUS.
    1. POTUS may use a “litmus test” on court nominees, often scrutinising their previous judgements on controversial cases e.g capital punishment or abortion. And the media asking Bush if he knew David Souter’s view on abortion.
    2. The POTUS can of course change the shape of the court over the next 15-20 years
  2. Politicisation By The Senate: In 1991 when Clarence Thomas was choosen, the Senate could have choosen to ask him about his lesser qualifications but instead they focused on a sexual harassment hit against him. In the end, the vote was 11 Democrat vs 2 Republicans. It was heavily critised as being a “party vote” in the Senate.
    1. As long as the POTUS has control of the Senate, he can just about get anyone he wants confirmed.
    2. Opposition may just find scandal and gossip. “the policy of search and destroy”
    3. A party-line vote not an individual vote.
  3. Politicised By The Media: The “feeding frenzy” on the allegations made against Thomas was liberally interspersed with sexual details. Rather than have an informed debate, the media chose to compete for who could come up with the most lurid allegations – “lynching”.
    1. With gap narrowing between the two types of judges, it is unlikely that either the POTUS or the Senate of either party is going to give up on trying to get its own way.
Why Are Nominations So Important:
  1. Appointments to the SC are very infrequent whereas appointments to the Cabinet can come up 2-3 times a year. Appointments to the SC come on average every 2 years, but the gap can be longer e.g 1994-2005
  2. Appointments are for life. Cabinet appointments are for 4 years maximum but SC appointments can be for 15-20 years.
  3. Only 9 members so appointing a new justice is replacing 1/9th of the court. You are a majority in itself whereas a House member is 1 in 435.
  4. Courts power of judicial review
  5. Through the power of judicial review, the court can profoundly affect the lives of ordinary Americans as the court makes decisions in such areas as abortion, gun control and freedom of speech.
What Is Judicial Review:
  • The power of the SC to declare Acts of Congress, actions of the executive, or acts of actions of state governments unconstitutional.
    • First seen in the 1803 case of Marbury Vs Madision.
  • The SC can, in effect, update the meaning of the words of the Constitution e.g the court will decide what Amendment 8 “cruel and unusual punishment”
    • “We are under a Constitution, but the Constitution is what the judges say it is”
  • Many of the matters are those which the political parties disagree on e.g abortion and women’s right.
  • Bush Vs Gore recount in December 2000 was a key moment as it deemed the manual recount scheme went against the 14th Amendment of the Equal Protection Scheme. It also deemed the time constraint of which the recount should take place unconstitutional. Some said that the court handed the Presidency to Bush
  • Importantly, it made the court a quasi-legislative body because the decisions the court makes have been in effect the same powers of Congress. If the SC say it, it usually ends up in law.
Distinguish Between Judicial Activism And Judicial Restraint:
Judicial Activism:
  • An approach to judicial decision making which holds that judges should use their position to promote desirable social ends.
  • Seen in Bush vs Gore in December 2000.
  • An activist court is said to be one which sees itself in leading the way in the reform of American society e.g Warl Warren was an activist in the 1950-60s for civil rights.
    • “…The Constitution does not clearly prohibit” & “I am in charge and I will seek to be a player equal to other branches in shaping policy.”
  • Some argue that the term is used to describe a decision which a group or individual disagree with.
  • Some will argue that this is what the SC is meant to do, as they deem decisions taking by the legislative and the executive as unconstitutional. If the judges know that if their decisions goes too far or too far out of the public opinion, then they will be forced to moderate their decisions or lose their only true method of enforcement.
Judicial Restraint:
  • An approach to judicial decision making which holds that judges should defer to the legislative and executive branches, and to precedent established in previous court decisions.
  • Puts a good deal of importance of Stare Decisis: A legal principal that judges should look to past precedents as a guide wherever possible (literally, ‘let the decision stand’).
    • “To stand by that which is decided”
    • Once a matter has been settled, it should not been overturned expect under pressing and changed circumstances.
  • Announcing a woman’s right for abortion in Roe vs Wade, the court put limits on that right but not to overturn the 1973 decision.
  • Under this the court is less likely to declare acts of Congress unconstitutional.
  • Some writers may prefer the term “judicial deference”.
Judicial Activism Occurs When…
Judicial Restraint Occurs When…
Judges are seen to lead the way in matters of public policy
Judges tend to defer to elected institutions and officials in matters of public policy
Judges tend not to defer the actions of elected officials
Judges are reluctant to strike down Acts of Congress or state laws
The courts frequently strike down Acts of Congress as well as state laws
Judges rarely declare actions of the executive branch unconstitutional
Courts frequently declare actions of the executive branch unconstitutional
The courts refrain from ‘legislating from the bench’
The courts are in effect ‘making’ rather than ‘interpreting’ the law.
The courts tend to rely on precedent from previous decisions.


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