US Judiciary

 The structure of the judiciary has three tiers. At the top is the Supreme Court. Below it are 13 Courts of Appeal, also known as Circuit Courts, and 94 trial courts, known as District Courts. Cases typically start in District Courts. The Supreme Court hears only the cases it chooses to hear there is no right to be heard, which is arguably a level of personal bias. The Court must give a reason for refusing to take a case, but not for accepting one.

The membership of the Supreme Court includes nine members: one Chief Justice, who also presides over impeachment trials in the Senate, and eight Associate Justices. The number of justices is set by Congress and has remained fixed since the 1800s.

Court packing refers to expanding the number of Supreme Court justices. Franklin Roosevelt once threatened to do this using his Democratic majority a successful move to pressure Republicans into stopping blocking his New Deal.

Justices hold lifetime appointments, and arguably the most powerful justice is the swing justice which is someone whose vote often determines the outcome of closely divided cases. There have only ever been 116 Supreme Court justices, 110 of who have been male. However, the court has become more gender diverse in recent years. The first African American justice was Thurgood Marshall, who was succeeded by Clarence Thomas, who is also African American. There has also been representation from Latin American backgrounds, but some groups, such as Asian and Native American Americans, are still not represented.

Some key justices include Antonin Scalia, an Italian American Catholic and right wing justice known for promoting textualism and originalism. He was friends with liberal justices like Ruth Bader Ginsburg and Elena Kagan, which shows that U.S. politics was not always as hostile as it is today.

Clarence Thomas, appointed by George H.W. Bush to broaden his voter appeal, is now the most conservative member of the Court. Ruth Bader Ginsburg was nominated as a legal expert and became a major figure in gender equality. She was confirmed by Bill Clinton, particularly following the controversial appointment of Clarence Thomas. Many women were outraged at Thomas’s confirmation, and Ginsburg’s appointment was seen as a response.

Since 2016, the Court has shifted significantly to the right. Scalia died in early 2016. His replacement should have been Merrick Garland, nominated by Obama, who would have been a swing justice. However, Senate Majority Leader Mitch McConnell refused to allow a vote for nearly a year. That vacancy was later filled by Neil Gorsuch, a staunch conservative, nominated by Donald Trump.

Swing justice Anthony Kennedy then retired and was replaced by Brett Kavanaugh. When Ginsburg died just three months before the 2020 election, Republicans ignored their own precedent (which they had used to block Garland) and rushed through the confirmation of Amy Coney Barrett, who is considered extremely conservative.

There are three key distinctions in judicial philosophy in the U.S.:

  1. Conservative – Generally opposed to rapid social change. Conservatives tend to support more state-level governance, less federal intervention, reduced welfare, and traditional religious and social values.
  2. Liberal – Focused on equality for all and progressive social values, such as support for gay marriage and abortion rights. Liberals are more likely to favour federal government intervention to protect these values over state control.
  3. Strict constructionists – These justices, including Thomas, Barrett, and Kavanaugh, interpret the Constitution literally and based on the original intent of the Founding Fathers. They tend to prefer state power over federal power and often follow a textualist approach. For example, Scalia once said, "The Constitution is not a living document it is dead."

Loose constructionists interpret the Constitution more broadly, considering what the Founding Fathers might have intended in today’s political climate. They often use the text to apply it to modern society. In contrast, UK judges are expected to be strict constructionists because our constitution is flexible but not open to judicial reinterpretation.

Judicial activism vs. judicial restraint:

  • Judicial activism refers to the Court actively shaping policy and leading reform. An example is Roe v. Wade. Activist justices view the judiciary as equal to the other branches of government.
  • Judicial restraint means the Court defers to the elected branches and avoids interfering unless absolutely necessary. It is often associated with the principle of stare decisis, which means "to stand by what is decided."

The appointment and confirmation process for justices is fully public and highly political because justices serve for life. A vacancy must occur through death, impeachment, retirement, or, theoretically, court packing though the latter is unlikely. Presidents usually prepare a shortlist of candidates even before a vacancy occurs. Names are suggested by the Executive Office of the President (EXOP), the Justice Department, their party, and members of Congress. For Republicans, the Federalist Society often provides a shortlist.

Presidents look for candidates who are competent, ideologically aligned, young, and politically helpful. They often leak their preferred names early, similar to the  invisible primary in elections, to gauge public and political reaction. The FBI conducts background checks, and the candidate undergoes interviews with the president.

The nominee is given a qualification rating by the American Bar Association’s Standing Committee on the Federal Judiciary. Ratings include "Well Qualified," "Qualified," and "Not Qualified" (e.g. Harriet Miers was rated "Not Qualified").

After this, the Senate Judiciary Committee holds hearings where the nominee is interviewed. The committee then votes, and a simple majority vote in the full Senate confirms or rejects the nominee.

Judicial review is a very powerful tool in the U.S, even though it was not originally intended by the Founding Fathers and is not found in Article III of the Constitution. The power stems from the 1803 case Marbury v. Madison, in which Chief Justice John Marshall asserted the Supreme Court’s power to declare acts of Congress unconstitutional. No one challenged this ruling, and it became a convention.

Judicial review is the power to declare laws null and void as if they never existed. Thomas Jefferson described it as “the path to the despotism of an oligarchy,” meaning tyranny by a group of unelected individuals.

The Court can strike down legislation with no external limit. This power allows the Supreme Court to update the interpretation of constitutional language. For example, the Eighth Amendment prohibits "cruel and unusual punishment"which has been reinterpreted to include methods like waterboarding. Judicial review has allowed the Court to influence civil rights issues and protect individual liberties, such as blocking state attempts to restrict voting rights.

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