Supreme Court and Rights

• • Free Speech (1st Amendment)
  • Texas v. Johnson (1989) in which the SCOTUS ruled that burning the Flag of the United States was protected speech under the First Amendment to the U.S. Constitution, as doing so counts as symbolic speech and political speech.
  • Snyder v. Phelps (2011) in which the SCOTUS ruled that speech made in a public place on a matter of public concern cannot be the basis of liability for a tort of emotional distress, even if the speech is viewed as offensive or outrageous. (7 members of The Westboro Church picketed the funeral of U.S. Marine Matthew Snyder)
• Right to bear arms

  • District of Columbia (D.C.) v. Heller (2008) in which the SCOTUS ruled that the Second Amendment protects an individual right to keep and bear arms for self-defence or whether the right was only intended for state militias, and D.C. banning gun control violated this guarantee.
• • Judicial review - Marbury v. Madison (1803) established the principle of judicial review, meaning that American courts have the power to strike down laws and statutes they find to violate the Constitution of the United States.
• • Miranda warning/rights - Miranda v. Arizona (1966) in which the SCOTUS ruled that law enforcement in the United States must warn a person of their constitutional rights before interrogating them, or else the person's statements cannot be used as evidence at their trial. This ensures the arrestee has the right to silence.
• Oregon v. Rideout (1973)


  First trial challenged marital rape since the state revised its rape law in 1977 to eliminate the marital rape immunity
• Although Rideout was acquitted, this had eventually led to criminialisation of marital rape across the federal states in 1993
• Lawrence v. Texas (2003)

  SCOTUS ruled that sanctions including any form of criminal punishment to all forms of private, consensual non-procreative adult sexual activities between two individuals (commonly referred to as sodomy laws which usually apply to homosexual persons) are unconstitutional, based on the 'right to privacy'
• Obergefell v. Hodges (2015)


  SCOTUS ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the 14th Amendment of the Constitution
• Roe v. Wade (1973)


  SCOTUS ruled that the Constitution of the United States generally protected a right to have an abortion
• Dobbs v. Jackson (2022) overturned Roe v. Wade and returned to individual states the power to regulate any aspect of abortion
• Plessy v. Ferguson (1896)

  Previously supported racial segregation
• Brown v. Board of Education (1954)


  SCOTUS ruled that racial segregation in public schools are prohibited
• Alexander v. South Carolina NAACP (2024)


  SCOTUS ruled that there is no clear evidence of racial and partisan gerrymandering which had the impact of moving African-American voters out of the district
• Fisher v. University of Texas (2013)


  SCOTUS ruled that Affirmative Actions in universities admission should be strictly scrutinised
• Students for Fair Admissions v. Harvard (2023)


  Race-conscious admissions are unconstitutional
• Allen v. Milligan (2023) in which the SCOTUS ruled that Alabama’s districts likely violated the Voting Rights
• Legal position therefore should be more impartial
• Eg Kavanaugh


  • Swing justice but chosen by Trump's administration therefore should be more right wing, but is not
• Amy Coney Barrett


  • Swing to pro-abortion in Dobbs v. Jackson (2022)
• Judges


  Serve for life until they choose to retire
• Judges are expected to interpret and apply the law impartially regardless of their personal or political views
• Judges once on the bench prioritise legal principles over political ideology when making a decision
• This commitment to the rule of law is seen as a counterbalance to the political nature of the appointment process
• Bipartisan support can be seen as an indication that the nominee is not solely a political choice as there is some agreement over party lines
• Senate has right wing and left wing members so they must nominate a candidate that is likely to be accepted - in the middle
• Judges are chosen on the basis of education, however do not need to qualify if they are not born in the USA, however to become the President of the USA, must be citizen-born
• President nominates someone


  Likely to reflect their ideology
• Trump's selection of Justice Neil Gorsuch in 2017


  • Had conservative principles
• Although it is not considered a political position, many justices remain close to the President, which could reflect their turnout of bills and legal cases
• Abe Fortas


  • Had a direct phone line to the president of the United States (L.B Johnson)
  • Wrote some of his speeches
  • Accepted outside income
  • Affiliated with third-party interest groups
• LBJ went so far as to order a direct White House line installed in Fortas' home and office, enabling the president to reach him at all times of the day
• As associate justice, Fortas violated a bright red line when he knowingly shared important information with the president concerning court deliberations and weighed in on matters of policy and constitutional law
• In one case, he advised the administration on a matter involving the Interstate Commerce Commission's approval of a railroad merger and then participated in a court case on the very same matter
• Bush v. Gore (2000) had an influential impact on determining who would win and become the POTUS (George W Bush)
• The nomination process becomes a focal point in the national debates with interest groups, media and public - politically motivated
• Justice Kavanaugh 2018 faces intense scrutiny/highly publicised confirmation process due to allegations of sexual misconduct
• Role of the media for portraying Supreme Court justices - nominated by Bush, accused Clarence Thomas of sexually harassing a lady - tarnished his reputation
• Media were supposed to highlight his good points, however had controversial ideologies - scrutinised by abortion rights activists and voted to overturn Roe vs Wade
• SC - legislative body

  Shelby County v. Holder (2013) overturned Voting Rights Act 1965 because secured voting rights no longer need federal clearance

  THEREFORE: Set precedents to amend/abolish laws passed in Congress and make laws, SCOTUS is a “legislative tool”

  e.g. Johnson v. Texas: burning flags is not supported but not illegal due to freedom of expression (1st Amendment); Citizens Utd v. FEC: companies are treated as individuals and have the right of expression Snyder v. Phelps (2011):Church displaying cards of “God hates Fags” are not illegal because they are protected by 1st Amendment
• SC- Social progress 


  Brown v. Board of Education (overturned Plessy v. Ferguson on racial segregation in schools); Roe v. Wade (abortion); Loving v. Virginia (interracial marriage); Obergefell v. Hodges (same-sex marriage)

  • Only Congress can protect rights and make social progress by codifying laws

  e.g. Obergefell v. Hodges (same-sex marriage) is fully protected after entrenched through legislation of Respects for Marriage Act 2022; Roe v. Wade was overturned by Dobbs v. Jackson 2022 (not entrenched rights)