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Flashcards in The Supreme Court and Civil Rights Deck (31)
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Arguments for affirmative action

Promotes diversity

Rights previous wrongs

Promotes equality of outcome


Arguments against affirmative action

Leads to disadvantage for another group

Minorities may be admitted into courses or given jobs which they are ill-equipped to cope

Condescending and demeaning to minority achievement

Perpetuates a society based on race


Affirmative action Supreme Court case

Fisher v Texas (2016)

Supreme Court upheld the university's affirmative action programme 4-3


Supreme Court on affirmative action

Gratz v Bollinger (2003) - University of Michigan's admissions programme declared unconstitutional - too 'mechanistic', as minority students given 20/150 points required for admission (6-3)

Grutter v Bollinger (2003) - University of Michigan's law school's admissions programme ruled constitutional - used a more 'individualised' approach (5-4)


Public opinion on affirmative action

63% vs 29%

4% vs 8% vs 87% (African Americans)


Supreme Court appointment process

Vacancy occurs - 119 since 1789 (1 every 2 years)

The President instigates search for possible nominees -senior White House aides / officials in the Justice Department / ABA

The President announces his nomination - Followed by ABA rating

The Senate Judiciary Committee holds a confirmation hearing on the nomination and makes a recommendatory vote - eg. 2005 Harriet Myers withdrawal / Kavanaugh scrutiny 

The nomination is debated and voted on in the Senate - 12 rejections sicne 1789 (Robert Bork 1987)


Flaws with the Supreme Court appointment process

Politicised by the role of the President

Politicised by the role of the Senate - Bork/Thomas/Kavanaugh/ $2 million spent on Alito campaign 

Politicised by the role of the media - fed lurid allegiations and tastless details - Thomas / Kavanaugh


Importance of Supreme Court nominees

Infrequent appointments


Only nine members of the court

Court's power of judicial review


Supreme Court cases demonstrating judicial activism

Brown v Board of Education 1955

Roe v Wade 1973

Bush v Gore 2000


Latin term regarding judicial restraint

'stare decisis'


Supreme Court on freedom of religion

All 5-4

Zelman v Simmons-Harris (2002) - Promotion of sectarian schools through vouchers (3,700, 96%)

Town of Greece v Galloway (2014) - Legislative bodies could begin meetings with prayer - No 'establishment of religion'

Burwell v Hobby Lobby (2014) - ACA not enforcable as it violated the Religious Freedom Restoration Act of 1993 (RFRA)


Supreme Court on freedom of speech

McConnell v FEC (2004) - Upheld McCain-Feingold Act


Citizens United v FEC (2010) - Corporations have the same rights as individuals regarding rights of political speech

McCutcheon v FEC (2014) - Struck down limit on amount of money that could be donated to candidates and PACs


Supreme Court on gun control

DC v Heller (2008) - Declared DC law banning handgun ownership unconstitutional

McDonald v Chicago (2010) - States can not infringe upon the rights of individuals to bear arms, as a result of the Due Process Clause


Supreme Court on abortion 

Gonzales v Carhart (2007) - Upheld ban on abortions occurring in the latter stages of the pregnancy (5-4)


Roe v Wade (1973) - Due Process Clause provides a fundamental right of privacy (7-2)

Whole Women's Health v Hellerstedt (2016) - Unconstitutional for states to place restrictions on the delivery of abortion services that create an undue burden on women seeking an abortion (5-2)


Supreme Court on marriage equality

US v Windsor (2013) - Declared DOMA unconstitutional because it denied the federal benefits of marriage to same-sex couples, violating the Due Process Clause (5-4)

Obergefell v Hodges (2015) - Ruled that state bans on same-sex marriage violated the Due Process Clause (5-4)


What did Elena Kagan do before the Supreme Court?

Solicitor General


Where did all but one of the Supreme Justices work before the Supreme Court?

US circuit courts


Judicial review

The power of the Supreme Court to declare Acts of Congress, actions of the executive, or Acts or actions of state governments as unconstitutional


Judicial activism

Theory that judges should use their position to promote desirable social ends

Judges leading the way in matters of public policy, making and not interpreting the law


Criticism of judicial activism

'imperial judiciary'


Judicial restraint

Theory that judges should defer to the legislative and executive branches, and to precedent established in previous court decisions.


Pro Supreme Court as a political institution

Appointed by a politician

Confirmed by politicians

Make decision on issues that feature in elections

Some of its decisions have a quasi-legislative effect (as if a new law has been passed)


Anti Supreme Court as a political institution

Its members are judges, not politicians

The Court is independent, not subject to political pressure

Justices do not involves themselves in political affairs, such as elections, campaigning or endorsements

Makes decisions based upon legal and constitutional argument, not political ideology.


Pro Supreme Court has too much power

Court gave itself the power of judicial review

Has increasingly declared Acts of Congress as unconstitutional (Snyder v Phelps 2011) - Westboro Baptist Church

Has made decisions out of line with the majority of public opinion




Anti Supreme Court has too much power

Checked by Congress and the President

No initiative power

Dependent upon other branches of government to enforce its decisions


Marbury v. Madison (1803)

Established principle of judicial review


Brown v Board of Education (1954)

Declared the "separate but equal" doctrine as unconstitutional


Plessy v Ferguson (1896)

Established "separate but equal" doctrine, upholding constitutionality of racial segregation laws as long as facilities were of equal quality


Shelby County v. Holder (2013)

Federal clearance not required for states before implementing changes to voting laws

Potential for racial discrimination

Roberts majority

States rights

Brennan Center for Justice (2016) - 1/13 voting-age African-American had lost their right to vote as a result of a past conviction, 4 times highger than for all other Americans


NFIB v Sibelius (2012)

Upheld ACA, making health insurance mandatory