4. Judicial Branch

• The Judicial branch of government is the system of courts that interpret and apply the law

  • The Supreme Court is the highest court in the USA, the final court of appeal for anyone seeking justice
  • Its power of judicial review allows it to rule on whether laws, or actions of government, are constitutional
  • The Supreme Court interprets the Constitution, some justices interpret it strictly according to what its framers intended, other have a looser approach.
• Supreme Court:

  • It has 9 justices: an odd number so decisions are not tied
  • There is 1 chief justice, and 8 associate justices
  • Justices are appointed by the president and confirmed by the Senate
  • Justices hold office for life unless they retire or are impeached and found guilty
  • Supreme Court hears only cases of constitutional importance
  • Cases are appealed from the US District Courts to US Courts of Appeals and then to Supreme Court
  • Supreme Court's power of judicial review allows it to rule on Acts of Congress or state law, to decide whether it is constitutional.
• Process of Selection and Appointment of Supreme Court Judges:

  • Vacancy opens: as a result of the death, retirement or impeachment of a justice
  • President considers possible nominees: suggestions are made by the president's advisers, party and legal experts. - Most nominees come from the federal Courts of Appeals: at the time of writing, 8 out of 9 justices from the Courts of Appeals. - Presidents need to be confident that their candidate will attract the necessary support in the Senate to be confirmed.
• Process of Appointment of Supreme Court Judges:

  • Candidates are shortlisted and background-checked
  • A final few are interviewed by the president
  • The president's choice is formally announced, resulting in massive media attention
  • Nominee appears before Senate Judiciary Committee, witnesses help the committee asses the nominee's suitability
  • Senate Judiciary Committee votes on the nominee, this is a recommendation to the Senate
  • Senate debates and votes on the nominee. A simple majority is needed for confirmation. Defeat at this stage is rare.
• Strengths of Supreme Court Appointment Process:

  • Detailed scrutiny of every nominee by the White House of the FBI, the Senate Judiciary Committee and the media - any past misdemeanour or controversial decision will probably be uncovered
  • Several opportunities for unsuitable candidates to be withdrawn from the process
  • Senate confirmation provides a check on the power of the president - he must choose a candidate who will command sufficient support from senators.
  • Attempts by presidents to pick political appointments are not always successful, as judges are completely independent.
• Weaknesses of Supreme Court Appointment Process:

  • Presidents usually try to choose nominees who appear to support their own political philosophy
  • The Senate Judiciary Committee appears to be politicised - questioning from the opposition party is often aggressive or focused on embarrassing the nominee rather than on analysing judicial expertise.
  • Questioning from the president's party is generally much softer, leading to fears that if the Senate is held by the president's party, it will carry out little effective scrutiny.
  • Voting by the Senate generally takes place on party lines
• Nature of Judicial Power: Judicial Review

  • can rule actions of the executive branch to be unconstitutional - either the federal government or the state governments
  • Overturn laws if it finds them to be unconstitutional - these could be Acts of Congress or Acts passed by state legislatures
  • Ensures that all branches of federal and state government comply with the constitution
• Constitutional role of Supreme Court

  Guardian of the Constitution/interpretation

  • The Court makes its judgements based on its interpretation of what the Constitution means
  • Strict Constructionists: Usually Republican appointments, follow the constitution as closely as possible, with its original meaning of high importance. Thomas, Gorsuch, Kavanaugh and Barrett
  • Loose Constructionists: Usually Democratic appointments, taking into account modern context. Many believe the Constitution is a 'living constitution' which should suit changing needs over time
• Constitutional role of Supreme Court 


  Supreme Court as protector of citizens' rights

  • Supreme Court protects civil rights and liberties.
  • The Bill of Rights is interpreted and protected by the Court as are other amendments that confer rights on US Citizens
  • First Amendments: Freedom of Religion, Burwell v Hobby Lobby Stores (2014) struck down part of Affordable Care Act 2010, made family businesses contribute to health insurance with contraception
  • Citizens United v Federal Election Commission (2010), ruled that corporations, unions and associations had the same rights to free speech
• Significance of Judicial Review

  Judicial review allows the Supreme Court to ensure that the legislature and the executive do not exceed their constitutional powers:

  • Judicial review allows the Supreme Court to strike down laws passed by legislatures if it finds them to be at odds with the Constitution
  • The Supreme Court can also rule against the actions of the government
  • Judicial review can be used as a check on presidential power
  • Judicial review ensures that the civil rights and liberties of ordinary Americans are not infringed by executives or legislatures
• Debates about the political significance of the Supreme Court

  Court has often been criticised for making political decisions:

  • Roe v Wade (1973), which states that women had a constitutional right to abortion, or Obergefell v Hodges (2015), which rules that it was unconstitutional to prevent same sex marriages.
  • Critics have labelled the Court a 'quasi-legislative' body - beyond interpreting law
  • Strict Constructionists argue that the farmers had no intention of authorising abortion or same sex marriage - acts of judicial activism from unelected judges - Judicial restraint
• Is Supreme Court too Political?

  YES:

  • It is an unelected body but makes decisions on the most controversial matters of public policy
  • Justices are appointed by the president and confirmed by the Senate, in a highly politicised process
  • Most Justices broadly reflect the political stance of the president who appointed them
  • Justices tend to make either broadly conservative or liberal judgements
  • can engage in judicial activism, to improve society by interpreting the Constitution not intended by framers
• Is Supreme Court too Political?

  NO:

  • Justices are independent and supposed to be politically neutral, Trumps nominee Kavanaugh ruled against him in Trump v Vance (2020)
  • Decisions are made on the basis of legal argument rather than political principles
  • Significant proportion of court's judgements are unanimous, or near unanimous
  • Some justices do not reflect political stance of President e.g. David Souter
  • Some justices do not consistently vote the same way e.g. Swing Votes Anthony Kennedy
  • Many practice Judicial restraint
• Landmark Rulings and Controversies

  Brown v Board of Education of Topeka (1954)

  • Black Parents from Topeka brought lawsuit after their children were denied access to their local all-white school
  • They were supported by NAACP and represented by the lawyer Thurgood Marshall
  • The Supreme Court ruled unanimously in favour of the parents, finding that the doctrine of 'separate but equal' facilities was fundamentally unequal and a breach of the 14th Amendment as citizens have the right to equal protection under state laws
• Landmark Rulings and Controversies

  Brown v Board Significance:

  • The ruling broke with the president of Plessy v Ferguson (1896) and the 'separate but equal' provision - breaking precedent and reversed its decision
  • Chief Justice Earl Warren explained that even if tangible aspects of education were equal, the result of segregation was feeling inferior
  • In a follow-up judgement in 1955, the court ordered local schools to integrate; ending more than half a century of legal segregation
  • South saw it as an attack of states rights, confirmed at Little Rock
  • Judicial Activism, breaking precedent
• Landmark Rulings and Controversies

  Obergefell v Hodges (2015)

  • focused on the 'equal protection' clause of the Fourteenth Amendment
  • Obergefell argued that in refusing to recognise his same-sex marriage, Ohio was in breach on 14th Amendment
  • Court rules 5-4 in favour, with the majority arguing that the right to marry was a fundamental right - equal protection clause
• Landmark Rulings and Controversies

  Obergefell v Hodges (2015)

  • Judgement legalised same-sex marriage across the USA
  • The majority of justices took a loose constructionist approach, interpreting the constitution according to modern ideas about sexuality even though the text doesn't mention same sex marriage.
  • Strict Constructionists on the Court saw the judgement of judicial activism and 'legislating from the bench'
  • Many Christian groups were horrified, arguing that religious freedom was infringed
• Landmark Rulings and Controversies 


  Roe v Wade:

  • A women challenged the right of Texas law to prevent her from having an abortion
  • The Court ruled 7-2 that women did have the right to an abortion in the early stages of pregnancy, as part of the right to privacy protected by Fourteenth Amendment
• Landmark Rulings and Controversies

  Roe v Wade: significance

  • This was a landmark case for the women's movement, asserting a women's right to personal choice over her body
  • Abortion became a defining political issue: most democrats are 'pro-choice'; Republicans 'pro-life'
  • Conservatives criticised unelected justices for 'legislating from the bench' as the ruling had the same effect as passing legislation to legalise abortion
  • Some argued that a law passed by Congress would have provided a democratic mandate for abortion rights
• Planned Parenthood v Casey (1992)

  • Health provider and non-profit organisation Planned Parenthood challenged the right of Pennsylvania governor Casey, to introduce several regulations on abortions.
  • Court applied Stare Decisis and did not overturn Roe v Wade.
  • Court accepted the right of states to regulate abortion in the early stages of pregnancy, provided that regulation was not an 'undue burden' on women.
  • Most regulations stood
• Gonzales v Carhart (2007)

  • A challenge by doctors to partial-Birth Abortion Ban Act 2003. The Act had been passed by Congress and signed into law by George W. Bush
  • It banned a certain type of abortion used in late-term pregnancies, the band did not include an exemption for the health of the mother and was ruled unconstitutional in the lower federal courts
  • Court upheld the ban 5-4, reducing abortion rights, all five justices in majority were catholic