US Judiciary - Voting Rights

3 Developments That Disproportionately Affect Black Voters:

1. Nine states have introduced photo ID requirement for all voters in the run up to the 2016 elections. These states included six states such as Texas, Tennessee and Virginia which all has a high proportion of black voters
2. 6 million Americans have lost their right to vote because of criminal convictions with what is known as “felony disenfranchisement.” 1 in 13 of young African-Americans have lost their right to vote due to this. This is almost 4 times higher than any other Americans.
3. Felony disenfranchisement has risen sharply since 1980. 8 states had 10% of black voters which was affected by this.

How Representative is Congress In Terms of Minority Representation:

The Presidency:

• Shirley Chisholm became the first majority party African-American candidate for the POTUS when she competed in that year’s Democrat primaries winning 152 delegates.
• However it was Obama in 2008 who was the first serious candidate. He not only won the primaries but he won the Presidency as well as getting re-elected.
• But there are still few members of racial minorities in the usual pools of recruitment. Only one was in the 2016 race.

The Cabinet:

• Weaver became the first African-American in the cabinet under Johnson as Secretary of Housing.
• Ben Carson’s appointment as HUD in 2017 is the most recent black appointee.
• Obama’s cabinet saw lots of minorities in the cabinet but Trump barely has any. Are we going back to what Nixon called “grey-haired old men called George”

Immigration Reform:

What Do The 4 Tables Highlight:

• The 4 tables show that immigration (Illegal aliens) is significantly decreasing.
• The DREAM Act during Bush’s years sought the end of illegal aliens and has such been decreasing ever since
• Will Trump be able to actually build a wall, if he does then it would go against how far America has come in terms of race and rights. Martin Luther King would certainly not like it.
• Immigration is becoming a key issue in American politics.

Comparing The Protection of Rights in the USA & UK:
Effectiveness of Protection of Rights:
UK:	USA:
The use of judicial review: Can see if someone acted beyond one’s power (Ultra Vires)	Plessy vs Ferguson showed that the court was clearly not protecting the rights of African-Americans.
Upholding of the provision of the Human Rights Act	The 24th Amendment did not end all discrimination either. Neither did the Defence of Marriage act bring rights for homosexuals.
Declarations regarding common law	After 9/11 was the USA PATRIOT act tilt the balance of national security too much? Some argued that it infringed people’s rights.
Judicial inquiries	Equally in today’s America (despite legislation passed after 9/11) the rights of the disable and those of women have improved. This action has only been brought about by the combined action of the Courts, POTUS and legislators and pressure groups.
Parliament has a role by passing legislation: Equal Pay Act, Sex Discrimination Act, Race Relations Act, Disability Discrimination and Freedom of Information
BUT the Equality Act effectively concluded that all rights were now protected. But after terror attacks, did Blair still allow this to happen. General consensus to follow the Rule of Law but how can this happen?
Role of Pressure Groups:
UK:	USA:
Pressure groups are encouraged to focus their campaigning on the court and not just Parliament.	Some groups are amicus curiaw meaning “friends to the court” where the group can try to influence the court as it reaches its decision.
The Ashers Bakery case in Ireland saw a Christian pressure group exert pressure on the courts by presenting a case to them as he held Christian beliefs. In this sense they do have lots of power but perhaps not as much as the USA.	The ACLU is one of the biggest group who influence the courts. It now has 3 million members, and has played a key role in many landmark cases. It has been widely criticised for siding with so called “extremist groups.”
Liberty is similar to the ACLU where they support gay rights as well as civil rights.

US Judiciary - Affirmative Action

• A programme giving members of a previous disadvantaged minority a head start e.g in higher education or employment.

Examples:

1. Gratz vs University of Michigan: Undergraduate programme was too “mechanistic” according to the SC. All black, Hispanic and American Indians were given 20/180 points automatically.
2. Parents vs Jefferson County: Can’t let students in for the purpose of achieving racial balance
3. Fisher vs University of Texas: Use of race in its admission policy must be subjected to scrutiny as time goes on – can be viewed as positive discrimination.

Does It Work:

• Some people saw Obama’s win in the election as a victory for affirmative action, The Atlantic wrote that “He did not ask people to vote for him because he black.”
• Some will argue that it does work because more BME residents are more likely to feel success.
• Some say that it will not work because it means that society stays entrenched with race unable to progress.

Advantages & Disadvantages of Affirmative Action:
Advantages:	Disadvantages:
Such programmes lead to greater levels of diversity which would not have been achieved by just leaving things as they were.	Preference for one group leads inevitably to disadvantage for another group. Issue of reverse discrimination. “you create anger and resentment”
Affirmative action is justified on the basis that it rights previous wrongs. The previously disadvantaged are now advantaged.	Can lead to minorities to be admitted to courses or given jobs with which they are ill-equipped to cope. A study found that putting black students in a class with white students with high SAT scores saw the black students doing worse than their counterparts.
It opens up areas of education and employment which minorities otherwise would not have considered.	Affirmative action can be condescending to minorities by implying that they need a helping hand in order to succeed thereby demeaning their achievement.
In education, a diverse student body creates not only a better learning environment but also one in which ethnic and racial tolerance is promoted.	Perpetuates a society based on colour and race thereby encouraging prejudice.
It is the most meaningful and effective means thus far devised by government for delivering the promise of equal opportunity	Affirmative action is no more than a quota system under another name
It works. More black people aged between 25-29 in 1960-1995 saw a rose in graduation from 5% to 15%	Focuses on groups rather than individuals. “involves a clash between the liberal notion of what the individual is worth and collective interest of a group or race”

Has Affirmative Action Been Good For America:
Yes:	No:
Has helped to reverse decades of discrimination and righted numerous wrongs.	Has divided the black community rather than empower it
Given black American community hope – and education, jobs and housing	Like the racism it sought to end, it is itself a programme based on race
Increasing evidence of minority students at top university	Has led to resentments and inequalities for the majority community
Helped to promote community diversity	Lowers aspirations by offering racial preferences
Has helped to promote equality of opportunity and equality of outcome	Puts minority students into academic places where they will struggle and compete and succeed.

US Judiciary - Comparing the UK And US Supreme Court

Origins:

• USA court was based on the words of the Constitution in the original document
• Federal courts were created by the Constitution
• No building until 1790
• UK Court was created as a result of an Act of Parliament in 2005 which saw the separation of powers. 1^st October was when it was first opened.

Appointments, Membership and Tenure:
USA:	UK:
9 justices	12 justices
Appointed by POTUS, confirmed by Senate	Vacancies filled by JAC, recommended by Lord Chancellor
All justices hear all cases	Between 5-11 justices in cases
Life tenure ‘depending on good behaviour’	Must retire at 70
Presided over by the chief justice of USA	Presided over by the president of the court
Removed by impeachment	Removed by petition on advice of both houses and the Monarch.

Powers:

• Changes in judicial review. In the USA it was ‘found’ rather than set in the Mowbray vs Madison when the court declared a federal law unconstitutional.
  • ‘No influence over the sword or purse’
• UK hearing appeals on points of law
• In the UK, judicial review is based on Ultra Vires. To see if those in charge have acted beyond their powers.
• Whilst in the USA, the court is fully independent and everything it says must be followed. In the UK there is a court above the SC. The European Court of Human Rights.
• It is the duty of the UK SC to interpret all existing legislation so that it is compatible with the ECHR.
• In giving effect to the rights contained in the ECHR, the UK SC must not take into account any related decision made by the Court.
• Even though the court is separate from the EU, May still wanted to leave. She dropped this plan in the 2017 GE.

Independence:

• Vastly important in both countries that judges are wholly independent and block out all external pressure from the: executive, legislature, pressure groups, the media and other judges.
• In the UK judges are protected: Immunity from prosecution, immunity from lawsuits over defamation, salaries cannot be reduced.

Independence In the USA:

• It was something that was debated heavily by the FF.
  • By giving judges life tenure and prohibiting Congress from reducing their pay they attempted to move them towards independence
• The argument came up again when the court took the Bush vs Gore case which decided who the POTUS would be
  • John Paul Stevens stated: It is the nation’s confidence in the judge guarding the rule of law”
• Again cases like these can be seen such as USA vs Nixon where Nixon had to hand over material demanded by the courts and Congress.
• Clinton vs Jones when Clinton wanted immunity from prosecution but was rejected.
• During the first few weeks of Trump’s presidency when the court declared Trump’s executive order on his so-called “Muslim ban” unconstitutional.

Independence In The UK:

• Independence in the UK did not exist up until the CRA of 2005 which saw the separation of powers. Before Law Lords were part of the HOL and were seen as a political institution rather than separate.
• The Lord Chancellor’s judicial role to the Lord Chief Justice and the role of presiding officer of the Lords to the Lord Speaker.
• Phillip Norton pointed out that the structures are still confused as the Lord Chancellor doubles as the Secretary of State for Justice
• There are other roles such as the Attorney General where they check judicial appointments or act as legal advisers to the government but also lead the Crown in major prosecutions.

Independence in the Face of Executive Criticism:

• Judges are inevitably drawn into the public debate over issues facing the country be it in the court room or when chairing public inquiries into scandal.
• In the USA the judges face the most scrutiny from the executive. When the court in Texas vs Johnson declared a Texas state law unconstitutional (burning the flag) Bush Senior said it was “wrong, dead wrong”
• In the 2010 SOTU address Obama said how the month previously the SC “turned over a century of law” and “opening the floodgates”, Samuel Alito was caught by TV cameras shaking his head and saying “not true”. Roberts was asked at a Q&A if it was right for Obama to say that he said “Some people have an obligation to criticises what we do, given their office, if they think we’ve done something wrong. So I have no problems with that”
• He did however say “it was very troubling” that all the Democrat members stood up and clapped at what they think was an incorrect decision taken by the court.
• In the UK, Home Secretary, May (now PM) criticised the judiciary over what she saw as the courts ignoring rules passed by Parliament aimed at deporting more foreign criminals. She accused the judges of “subverting British democracy”
• In the UK a similar situation played out in 2016 after the EU vote which said that Parliament must should play a part in triggering Article 50, the Daily Mail wrote headlines like “Enemy of the people” and “out of touch judges”
• Montesquieu: “There is no liberty if the power of judging is not separated from the legislative and executive powers”

US Judiciary - The Supreme Court & Other Branches of Government

The SC & Congressional Power:

Affordable Care Act 2012 (Obamacare):

• Went through the court 5-4. The liberal judges ensured that it went through.
• The court didn’t “uphold the act” but Chief Justice Roberts claimed that it was “writing the majority”
• Democrats in Congress and Obama himself supported it and to make the act popular, Obama sent it to the court to ensure that it retained the public opinion.
• It was not about the act, it was about the relationship between Congress and the SC.
• “Congress has power to regulate commerce not compel it”

The SC & Presidential Power:

Bush & Guantanamo Bay:

• Argued that detainees should have access to USA federal courts to challenge their dentation.
• Rejected the view that detainees were outside the jurisdiction of the federal courts
• ‘Trying’ people is unconstitutional. Significant limited on the commander-in-chief role of the POTUS
• In 2008, the court said the detainees should get a day in court at least.

Obama & Recess Appointments:

• Court said that Obama was allowed to make recess appointments and it was no unconstitutional because the House had not stated when it was going on recess and it shouldn’t be going into recess.
• The appointments made will stand.

Limits on the Supreme Court:

1. Limited in enforcing what they do: Brown vs the Board of Education 1954 saw that segregation in schools should not happen but no body followed it until the military forced them.
2. No Power of Initiative: Cases must be submitted to the court, it cannot pick and choose. An appellant who claims to have been treated unfairly can bring a case to the courts.
3. Constitutional Amendments: If the court declares that an act of Congress is unconstitutional, Congress can opt for amending the Constitution.
4. Self-Restraint: No political bias. Don’t endorse Presidential candidates. This does not work in reality.

Is the Supreme Court a Political Institution:
Yes:	No:
Appointed by a politician (the POTUS)	Members are judges not politicians
Confirmed by politicians (Senate) on party line	Court is independent – not subject to political pressure
Makes decisions on issues that feature in elections e.g abortion, gun control which the two main parties disagree with	Judges do not involve themselves in party politics, elections, campaigning and endorsing candidates
Some decisions have a quasi-legislative effect: if a new law has been passed.	Makes decisions based upon legal and constitutional argument not political ideology.
Some people describe it as a ‘third house of the legislature’

Does the Supreme Court have too much Power:
Yes:	No:
The court gave itself the power of judicial review	Checked by Congress which may initiate constitutional amendments in order to override the court
Declared more acts of Congress unconstitutional over the decades	Congress has power of impeachment
Made decisions that are out of line with the majority of the public	No initiative power
Unelected body	Dependent on the rule of law and other branches of government to enforce its decisions
Largely unaccountable body	Public opinion is a restraining force on the court’s power
Abused its power to bring about significant policy change (e.g abortion, same-sex rights)	Checked by the words of the Constitution: Where it is precise and not open to interpretation by the court.
Has too much power when justices believe in a living Constitution

US Judiciary - Landmark Supreme Court Cases

Marbury Vs Madison – 1803:

• Jefferson passed a bill which created new courts, added judges and gave the POTUS more control over the appointment of judges.
• It was done to frustrate the party.
• The court said that the Act was unconstitutional as it had gone ahead of the courts original jurisdiction.

Plessy Vs Ferguson – 1896:

• Plessy sat in the “white” carriage car when he himself was black.
• Rail company didn’t want to spend money to buy new additional cars so it went to court.
• Did it go against the 14^th Amendment?
• Segregation did not in itself constitute unlawful discrimination. The Constitution was “colour-blind”

Brown Vs Board of Education – 1954:

• African Americans were being denied going to certain schools.
• Blacks were discriminated and whites were equal
• Segregation was having a huge effect on the education of children so it was now deemed as unconstitutional.

Bush Vs Gore – 2000:

• Florida must count all “under-votes” (ballots which did not indicate who the vote was going for).
• Gore wanted an immediate hearing – he got it two days later.
• Was the court about to make a new election law?
• The recount was deemed unconstitutional as it could not be done in the timescale.
• This could not be done as the Constitution requires every vote to be counted.

District of Columbia Vs Heller – 2008:

• Wanted firearms which were unregistered to be illegal and to keep them unloaded.
• Heller was a policeman who kept his firearms on him at all times and he applied for a license. He said that his “right to bear arms” should be kept and that keeping them in your home would be unconstitutional.
• The “right to bear arms” is for keeping arms on you at all times but not for self-defence. The vote was very close at 5-4.

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 16^th 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 1/9^th 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 14^th 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.