Supreme Court

• The powers of the Supreme Court (SCOTUS) are set out in Article 3 of the Constitution, the shortest Article thus far. S
• There is debate about whether the establishment of the SC was an afterthought or whether the Founding Fathers regarded it as less important that the other two branches of the Constitution. Hamilton stated that ‘the judiciary is beyond comparison the weakest of the three departments of power’.
• The Judiciary Act of 1789 sets up a system of lower federal courts set up by Washington. 

  
• Important note: this structure relates to the FEDERAL judicial process.

   

  It is not to be confused with the courts system within each state.

   

  • In each state has it’s own judicial structure ending with a Supreme Court in that state.
  • If you in Florida and you have a federal issue, from federal appeal court to the Federal Supreme Court.
• Most cases start in the District Courts and are then appealed up the system. State Supreme Court cases can also be appealed directly to the SC if a case of federal law is involved. The lower courts hear cases which deal with federal matters. 

  The SC is also a court of original jurisdiction which means a case can start directly there. A court of first instance. 
• The SC is also a court of original jurisdiction which means a case can start directly there. A court of first instance. 

  This occurs when the case:

  • Involves public ministers
  • Two or more states - New Hampshire passing a law saying they will have the first primary contest, if another state did the same the case would be brought to the Supreme Court.
  • Citizens of different states
  • The USA
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   The SC chooses which cases it hears so there is no automatic right of audience. Up to the Supreme Court if they hear your appeal.
• The SC chooses which cases it hears so there is no automatic right of audience. Up to the Supreme Court if they hear your appeal.
• • REMEMBER In general, the court only hears about 1% of the cases referred to it out of about 8000 referrals. 99% of the court appeals never get heard.
• • UK, 90 cases are heard out of 230 cases brought to the Supreme Court. About the same between USA and UK. Also the USA is much larger and will have more cases brought to them proportional to the larger population.
• There are 9 justices (one Chief Justice and eight associate justices) appointed by the President (set by the Judiciary Act 1869) - population has significantly increased. Have we got enough justices on the bench?
• • Appointments are confirmed by the Senate by simple majority
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  • Justices hold their seat on the bench for life ‘during good behaviour’ as stated in Article 3. 
• • There have only been 16 Chief Justices in 230 years.
• Justices may be removed from office by impeachment (house of representatives - then tried in the senate)  (only happened once to Samuel Chase in 1805 – found not guilty)

  • No justice has ever been impeached and tried. 
• Appointments for life

  • Justices are appointed for life ; This means that the president or Congress cannot remove them if they make decisions they don’t like.
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  • President and congress can freely criticise them. 
  • In UK this does not happen, MP’s and ministers will not criticise judges in their decisions.   
• Vacancies

  •  Vacancies on the Supreme Court occur only if a current justice dies, retires or is impeached. The Constitution allows Congress to change the number of justices, and there have been nine since the Judiciary Act 1869. This prevents the other branches of government packing the Court with their allies.
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  • Jimmy Carter didn’t get any vacancies during his term
  • Donald trump got 3
  • You could argue that due to his far right views he can appoint Strict constructionists and this would have a knock on effect as they are there for life and the decision is in his hands.
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• Salaries

  • The Constitution prevents the salary of the justices being lowered during their time in office. 
  • In 2022, Supreme Court associate justices were paid $274,200 a year, while the chief justice was paid $286,700. With their salary being fixed, the justices do not have to be concerned about repercussions from the president or Congress if they vote against them in a case.
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• Appointment process

  • Justices are nominated by the president and approved by the Senate. This prevents one branch from dominating the Supreme Court and filling it with people of an ideology similar to theirs. It also lends legitimacy to the Court, being appointed by elected representatives, but protects it from the whim of public opinion.
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• Separation of powers

  •  Separation of powers protects the Court's independence by giving judges their own power. Judicial review allows the Supreme Court to check the power of the president and Congress. The Court itself has no power to enforce these decisions, relying on the other branches to carry out its rulings. This makes the three branches of government independent but co-dependent.
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• The role of the ABA

  •  The American Bar Association (ABA) rates the suitability of each of the justices nominated. Comprised of industry experts who are not politically motivated, the ABA helps to ensure that the Court is composed of people who understand and carry out the letter of the law rather than the will of the nominating party.
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• The early case of 

  • Chisolm v Georgia (1793) quickly established the position of the SC. The court ruled that an individual could sue a state.
  • As a consequence of this, the 11th Amendment was passed expressly banning such legal actions but the very fact that the ruling forced the amendment demonstrates the power the Court had.
  • It recognises the power of the court. Congress had to amend the constitution.
• After the creation of Supreme Court heard two cases in which it would grant itself the power of judicial review. 
• Marbury v Madison(1803)

  • The court has power of judicial review over federal law. 
• Fletcher v Peck (1810)

  • Supreme court with judicial review power over state law.
• The power of JR allows the SC to ‘update’ the meaning of the words of the Constitution. 

  • For example, the SC can decide the meaning of the phrase in the 8th Amendment forbidding ‘cruel and unusual punishment’ or decide whether the right to freedom of speech guaranteed under the 1st Amendment applies to the internet. 
  • In Guantanamo bay, CIA waterboarding terrorists. The courts reviewed whether their interrogation techniques violated the 8th amendment.
• Judgements made under JR are political in nature. They can cover issues as politically sensitive as:

  • Rights of racial minorities
  • Capital punishment
  • Gun control
  • Freedom of speech
  • Abortion rights.
• Case study: George W Bush v Albert Gore Jr (2000)

   

  • when counting the votes, the machine punches a hole. The left over small piece of paper is called a ‘chad’, if it hanging off the paper, the Supreme Court ruled they couldn’t be counted. 
  • Bush won the case, he got the 25 electoral votes from Florida and won the Presidential election.  
  • This is an example of Supreme Court power and the consequences of their decision.

   

   
• Synoptic link: compare the judicial review processes of the UK and USA

  UK - executive only due to Sovereignty of Parliament, they can only declare its incompatibility with HRA. The act of Parliament is still fully in force. 

  Different grounds:

  • Ultra vires
  • Procedural impropriety 
  • Irrationality
  • HRA

  US - executive and legislature due to Constitution and Separation of Powers.

  Different Grounds

  • Ultra vires
• Example of Similarity = 

   

  Gender Recognition reform bill is not a Bill of the Scottish Parliament.  

   

  • Section 35 of Scotland Act 1998, Parliament can review any Act that will have a substantial effect on the UK.

   

  Like Supreme Court challenging a state law. Very similar. Similar process from federal to state and Westminster to devolved assembly.
• • The court’s rulings are quasilegislative - Supreme Court reviews have the full force of law as if the Congress had passed it. An excellent example of this is Roe v Wade (1973).
• Roe v Wade (1973)

   

  On January 22, 1973, the Supreme Court struck down Texas's criminal ban on abortion and held that the right to abortion is a “fundamental right.” 

  • From the 14th Amendment, allows Women to choose before Fetal Viability.
• Dobbs v Jackson WHO (2022)

   

  In June 2022, in the case of Dobbs v. Jackson Women's Health, the US Supreme Court overturned the constitutional protection for pre-viability abortion confirmed in Roe v. Wade (1973)

  • Saying Roe v Wade is not the right constitutional ruling and is no longer a ruling.
  • The SCOTUS are saying they cannot rule on abortion, as its not in the constitution as SCOTUS could be seen as a constitution court.
• Appointment process - overview

  • Vacancy arises through death, retirement or impeachment

   

  • The President instigates a search for a replacement and interviews short-listed candidates

   

  • The President announces his nomination

   

  • The Senate Judiciary Committee holds a confirmation hearing and makes a recommendatory vote

   

  • The nomination is debated and voted on by the whole Senate and approved by simple majority
• • Committees will make recommendation to senate and senate Will vote on it by simple majority.
• Only 128 vacancies have arisen to the Court since 1789
• Biden is 46th president, President is expected to make 2 or 3 nominations

  less presidents because they can do more than one term Than 128 Vacancies have arisen since 1789

  • carter didnt get to nominate any
• Supreme Court Justices serve life terms until they retire or die in office
• Only 128 vacancies have arisen to the Court since 1789 so a President may expect to make an appointment twice during his a single term in office. Some Presidents never get to make an appointment – Carter made none. The life tenure of the Justices means that Presidents tend to regard the power to appoint as one of the most important of all. Justices will serve long after the President has left office unlike almost all the other Executive appointments.
• Use the site to create a factfile on nominations - choose the data you find most interesting

  • Not a very noticeable or significant majority in Biden appointment.
  • Kennedy, Antony M. The senate majority was 97-0.
  • Withdrawn candidates are due to the candidate knowing they will not win in the Senate so they pull out before the embarrassing vote
  • No vote but was confirmed, when the Senate is on recess (holiday). President can bypass ratification process.