A2 Government and Politics- Government of the USA- The Judiciary A2 Government and Politics- Government of the USA The

Judiciary

Welcome to the US Supreme Court. In this topic were going to look at the role of the most important legal body in US Politics. Here the emphasis is on the role of the Supreme Court in interpreting the Constitution and the protection of Citizens rights. Much like in the UK, the US Court system is regularly involved in deciding upon the liability of the Government, however unlike the UK courts it has the fundamental power of Judicial Review which has often led to accusations of it Legislating from the Bench. Our key questions are:

Key Questions 1. What is the Supreme Court and what does it do? 2. Who is in the Supreme Court and what are their qualifications? 3. What is the role of the Supreme Court in the US Constitution? 4. Why is the Supreme Court so important? 5. What is the future of the Supreme Court?

A2 Government and Politics- Government of the USA- The Judiciary Part 1- What is the Supreme Court? To truly understand the Supreme Court we need to look to the US Constitution. Its role is set out in Article 3, Section 1:

The Judicial power of the United States shall be vested in one Supreme court and in such inferior courts as the Congress may from time to time ordain and establish.

* Clearly the indication here is that there should be one Federal Court (the Supreme Court).

However the Federal Court Structure is very specific and comes from the Judiciary Act 1789. It looks like: The US Federal Court Structure

United States Supreme Court The highest Federal Court sits in Washington DC and consists of 9 Justices.

United States Courts of Appeal Divided amongst 12 Circuit Regions with the US which hear cases from each region appealed from the 94 Districts. Has 179 Judges sitting.

United States District Courts Divided amongst 94 Districts. Each State has at least one; they are usually allocated based on population. They hear cases of Constitutional significance. There are 677 Judges in these Courts.

A2 Government and Politics- Government of the USA- The Judiciary The US Court of Appeal 12 Circuit Regions (note the 12th is Washington DC)

A Note on Federal and State Courts Federal Courts serve a very specific purpose; they generally are only involved in one of four areas: 1. Cases in which the United States Government. 2. Cases involving violations of the U.S. Constitution or Federal laws 3. Cases between citizens of different states if the amount in controversy exceeds $75,000 4. Bankruptcy, copyright, patent, and maritime law cases. State Courts are responsible for the enforcement of all State laws and some Federal Crimes at a local level. Their jurisdiction is much broader than the Federal Courts as they deal with many more cases. Note there are also some offences (such as Burglary) which are Federal as well as State crimes, in these cases a defendant can choose which court their trial is heard in.

* Within the Federal Court structure are a number of courts that we dont discuss such as Military Courts, Bankruptcy Courts, Tax Courts and Courts of Veterans Appeals.

A2 Government and Politics- Government of the USA- The Judiciary The Makeup of the Supreme Court The Current US Supreme Court consists of 8 Justices and 1 Chief Justice.

John G. Roberts- appointed 2005 Chief Justice President George W. Bush

Antonin Scalia- appointed 1986 Associate Justice President Ronald Reagan

Anthony M. Kennedy- appointed 1988 Associate Justice President Ronald Reagan

Clarence Thomas- appointed 1991 Associate Justice President George H. Bush

Ruth Bader Ginsburg- appointed 1993 Associate Justice President Bill Clinton

Stephen G. Breyer- appointed 1994 Associate Justice President Bill Clinton

Samuel A. Alito- appointed 2006 Associate Justice President George W. Bush

Sonia Sotomayer- appointed 2009 Associate Justice President Barack Obama

Elena Kagan- appointed 2010 Associate Justice President Barack Obama

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Now That we know a little bit about whos in the Court the next step is to look at how we get Supreme Court Judges Part 2- How to, How do? There are 4 key stages to appointing a Supreme Court Judge: 1. A Vacancy arises through retirement, death or impeachment 2. The President begins the search for a replacement and interviews a short-list 3. The President picks a nominee and announces them 4. The Senate Judiciary Committee begins the confirmation process which ends with a vote in the Senate.

Vacancy Ahoy! Over the course of the Supreme Courts life since 1789 there have been 188 vacancies which have arisen (roughly one every 2 years). However it is not an exact science, some Presidents have appointed 4 Justices during their terms (Richard Nixon), whereas some such as Jimmy Carter have not appointed any. This may not seem particularly relevant, but the fact that it is the President who chooses their candidate, means that this gives them a distinct advantage. It is sometimes referred to as an Echo Chamber. This simply means that long after a President, his Cabinet, Chiefs of Staff, Ambassadors and Congress have retired or been removed, their political and ideological legacy will continue in the Supreme Court. Consider that President Nixon appointed William Rehnquist as Chief Justice of the Supreme Court in 1972. Rehnquist was Chief Justice throughout the Presidency of Gerald Ford, Jimmy Carter, Ronald Reagan, George H.W. Bush, Bill Clinton and lasted until 2005 during George Bushs second term (a phenomenal 33 years!). The longest period in which no Justices retired or were added to the Supreme Court was from August 1994 to July 2005!

A2 Government and Politics- Government of the USA- The Judiciary The Search is on... For The USAs Next Top Justice Once a vacancy has arisen the next step is for the President to select a suitable candidate to fill the vacancy. When a Justice is due to retire such searches have already been conducted. Theoretically the President can select anyone to be a Supreme Court Justice; however they are likely to look to conventional sources to find a Justice: The US Court of Appeal- This is the next court down from the Supreme Court in the structure and has frequently served as a recruitment pool for applicants to the Supreme Court. Of the current Justices all have served in the Court of Appeal except Elena Kagan. State Courts- A President may alternative look to the individual State Courts for talent. Recent appointments from the State Courts include Sandra Day OConnor (1981- Arizona) and recently David Souter (1990- New Hampshire). The Executive Branch- The Presidents own Cabinet and Departments can offer some talent, though this is much rarer than the previous two categories. The most famous example was William Rehnquist in 1974 by Richard Nixon. Prior to this Rehnquist was the Assistant Attorney General in the Justice Department. Another recent example is Elena Kagan who was the Solicitor General before she was appointed to the Supreme Court in 2010. State Governors- There are few State Governors who become Justices (they prefer the Presidency) however one of note was Earl Warren who was appointed by President Eisenhower as the Chief Justice in 1953. He had previously been the Governor of California. Academics- Successful applicants to the Supreme Court from the academic world are rare, owing in part to their lack of experience and recognition. Examples of recent candidates include Robert Bork Douglas Ginsburg (both Reagan), although both were forced to withdraw. Others- Other potential sources are available to the President, though they are less frequent: Senators- Harold Burton (1945- Harold Truman) Practising Attorneys (i.e. Lawyers) - Lewis Powell (1971- Richard Nixon) State Legislator- Benjamin Curtis (1851- Millard Filmore)

A2 Government and Politics- Government of the USA- The Judiciary Testing, Attention Please The obvious next step is for the President to declare their nomination after much careful research. However prior to this the President will share the details of their choice with the FBI and CIA so that the candidate can undergo thorough background checks. The next step in the announcement process before a candidate is interviewed by Congress, is a purely unofficial but is now tradition and observed keenly by legal and political observers across America. This is the release of a rating of a candidate by the American Bar Association Standing Committee on the Federal Judiciary. The ABA is the official body of attorneys in America and they widely consult with the President on the suitability of their candidates. There are 3 potential nominations: 1. Well Qualified- The Candidate is perfect for the job 2. Qualified- The Candidate is enough for the job 3. Not Qualified- The Candidate does not have enough for the job. Clearly for the Supreme Court we would expect all candidates to have a Well Qualified ranking. Whilst it will not stop a candidate, not having this ranking can be clearly detrimental to an application. All the current members of the Supreme Court have received a Well Qualified ranking, except Clarence Thomas who received a Qualified ranking (note some members of the ABA Standing Committee submitted a Not Qualified ranking).

A2 Government and Politics- Government of the USA- The Judiciary Can you confirm you Name? The Confirmation hearing is the finally step in appointing a Supreme Court Judge. This takes place on Capitol Hill in front of the Senate Judiciary Committee and is broadcast to the nation. The Senate Judiciary Committee officially holds a Question and Answer session with candidate. In these sessions the Committee will question the applicant and also speak to supporters and critics of the candidate. The session is usually a chance to probe the candidate on their judicial experience and their views on controversial constitutional issues. Once this has been completed the Committee votes, then the whole Senate are required to vote on whether to allow that candidate to become a Supreme Court Judge. One example of this kind of powder keg environment was in the confirmation process of Clarence Thomas in 1991.The Senate Judiciary Committee contained some notably Democrats (such as future Vice-President Joe Biden) and it had already received a number of requests from various interests groups such as the American Civil Liberties Union. Clarence Thomas therefore had already had a difficult time in front of the committee. The worst was yet to come. Mid-way through his application process an FBI interview with Professor Anita Hill (who had worked with Thomas as an Attorney) was leaked and Professor Hill was brought before the Senate Judiciary Committee for questioning. It was explosive. In questioning Professor Anita Hill accused Thomas of Sexual Harassment whilst she had worked for him. It caused a massive political stir, which almost undermined Thomas application. Because the Senate Judiciary Committee probe in some depth in can really bring up some uncomfortable past events that may cause a candidate to withdraw or for the President to withdraw their application. This was well highlighted in the application process of Professor Douglas Ginsburg 1987. Ginsburg was already serving in the Court of Appeal when he was selected by Ronald Regan to fill a vacancy in the Supreme Court. His record as Judge was impressive; he had strong Conservative credentials and had considerable experience. However only 9 days after his nomination by President Regan, Ginsburg withdrew after it was revealed by the Senate Judiciary Committee that he had used Marijuana as a student and as a Professor at Harvard. One final failed nomination to consider is that of Harriet Miers in 2005. Miers had been a senior legal advisor to President George W. Bush throughout his term as Governor of Texas and his Presidential Election Campaigns in 2000 and 2004. Another reason that candidates fail to become Supreme Court Judges is simply because the Senate Judiciary Committee and later the Senate voted against them in sufficient numbers. Since 1789 there have been 12 candidates to fall at this final hurdle. The reasons that candidates fail are numerous but can be usually attributed to either their own political background or the political control of the Senate at the time. The most recent examples were both candidates (Clement Haynesworth and Harrold Carswell) who were chosen by President Nixon. The Democrat controlled Senate saw them as too Conservative and voted against them,

A2 Government and Politics- Government of the USA- The Judiciary Real life Examples of Supreme Court Nominations President Bushs Nomination of John Roberts (2005) The nomination of John Roberts to Chief Justice is odd for a number of reasons. John Roberts was originally nominated by Bush in 2005 after Associate Justice Sandra Day OConnor had resigned. Roberts was seen as an excellent choice, he was praised by Republicans because of his Constitutional views and even by leading Democrats such as Harry Reid who praised his record as a Judge. However just as Roberts Confirmation hearing was about to precede the Chief Justice William Rehnquist died. Instead Bush nominated Roberts as Chief Justice (Bush chose Samuel Alito in 2006 to replace Sandra Day OConnor who had vowed to stay on until she had a successor). Roberts was an unusual choice in that at 50 when he was confirmed, he was the youngest ever Supreme Court Chief Justice in the Courts history.

President Obamas Nomination of Elena Kagan (2010) Prior to her appointment as an Associate Justice, Elena Kagan was Solicitor General, essentially representing the US Government on legal issues before the Supreme Court. Kagan was surprising as a nomination as at 50 she was fairly young to be appointed to the post to replace the outgoing Justice John Stevens (appointed by President Ford) . She had strong Liberal credentials, having served in the Clinton administration and being a close political and legal advisor of Barrack Obama. When she appeared before the Senate Judiciary Committee as the Harvard Dean in 2008 she was widely praised for her intelligence and skill. When she appeared before them in 2010 as a Supreme Court she was questioned over her lack of experience and her clear ties to the Liberal establishment. When she was elected it was primarily along partisan lines.

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Strengths of the Appointment Process 1. Scrutiny- Candidates who are selected to join the most powerful court in America are put under considerable scrutiny; they are reviewed by their own professionals (ABA), the US Security Services (the FBI and CIA), the President and the Senate. This ensures that only the best candidates are selected. 2. Openness- The whole event is broadcast on National Television, so that ordinary Americans feel a part of the Government, it also means that Judges are shown as real people with flaws themselves (Clarence Thomas, Douglas Ginsburg). 3. Control- By placing the nomination and confirmation of a Justice in the hands of the Executive and Legislative, this is ensuring that the Judiciary do not become over powerful and are still in some way accountable to the other branches. 4. Diversity of views- Whilst having a choice between Liberal and Conservative judges may seem a headache, it can be beneficial in that it opens the Supreme Court up to new Judicial philosophy.

Weaknesses of the Appointment Process 1. Echo Chamber- The Supreme Court is a job for life. It means that a President can leave their mark long after they have left office by selecting a Judge who reflects their views (consider Rehnquist after 34 years). 2. Politicisation- Some politicians on both sides of the spectrum have accused the process of becoming too political. This has been evident in recent nominations with the Interviews conducted by the Senate Judiciary Committee and the recent voting record of the Judges appointed. 3. Failure- The road to becoming a Supreme Court Justice is a difficult one and is littered with failed nominations for various reasons, this process has a high failure rate which puts candidates into the public forum for severe scrutiny with very little chance to redeem themselves.

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A2 Government and Politics- Government of the USA- The Judiciary A Brief Note On Judicial Philosophy. It is clear that when we talk about Congress or the President we will use terms such as Liberal or Conservative, Republican or Democrat. However when we are talking about the philosophical and moral views of the Supreme Court we use two different terms. These are Strict Constructionists and Loose Constructionists. Strict Constructionists These tend to be Conservative Justices (although not exclusively). They believe that the Constitution should be interpreted literally and no additional meanings should be construed from its wording. Strict Constructionists tend to favour the retention of power by the states as set out in the Constitution rather than giving new powers to the Federal Government. Their position is best summed up Antonin Scalia who remarked: The constitution that I interpret and apply is not living but dead. Our first responsibility is not to make sense of the law- our first responsibility is to follow the text of the law. In the current Supreme Court the current Justices would fit into this category: John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito. Loose Constructionists These tend to be Liberal Justices (although not exclusively). They believe that the Constitution should be interpreted broadly and that the Court should look at what rights the founding fathers intended to give in deciding on cases. The loose Constructionists in the current Supreme Court are: Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Other Phrases of Note. Judicial Activism- The belief that the Supreme Court should use its position and decisions in cases to develop and alter social views by altering Government policy, where appropriate. Judicial Restraint- The belief that the Supreme Court should avoid needlessly overturning laws passed by democratically elected bodies. It is not a vehicle for social change.

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A2 Government and Politics- Government of the USA- The Judiciary The Constitutional Significance of the Supreme Court The Supreme Court has one unique power which sets it apart from other courts in the US and the world (particularly the UK), this is the power of Judicial Review. Judicial Review The power of Judicial Review itself is not a unique power (all British Courts can perform Judicial Review), however the US Supreme Court has a significant variation of Judicial Review. In the US Supreme Court as set out in the case of Marbury v Madison (1803) has the power to declare any law or policy of the Federal Government, Executive or the State Governments or Executives to be unconstitutional. In that the acts or policies are against the meaning or intention of the US Constitution and therefore they become null and void.

This is clearly a significant power as it allows the Supreme Court to essentially overturn Government legislation and to make significant impact on the makeup of America. Consider the following examples: Brown v Board of Education of Topeka (1954) The US Supreme Court was asked to look at the issue of racial segregation in schools and of schools which had been approved in the earlier case of Plessy v Ferguson (1896). This case concerned the city of Topeka in Kansas which was been challenged on its racial segregation policy by the parents of 13 black students. The Court had to deal with the fundamental issue of Civil Rights at time in Americas History when many black Americans were still fighting for equal civil rights. The court had to decide whether racial segregation interfered with the 14th Amendment (equal rights). The court found unanimously that the Racial Segregation in and of Schools was unconstitutional. Chief Justice Earl Warren summed up the position of the Supreme Court on this issue: We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.

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A2 Government and Politics- Government of the USA- The Judiciary Reno v American Civil Liberties Union (1997) The case dealt with Communications Decency Act 1996 which made it an offence to transmit Obscene or Indecent messages or depict or describe sexual or excretory activities or organs over the internet. This was the first major piece of Federal legislation to try and tackle the internet and the transmission of information. This case concerned the Attorney General Janet Reno who appealed the case to the US Supreme Court after the law was challenged by the American Civil Liberties Union. The court voted unanimously (9-0) that the Communications Decency Act 1996 was unconstitutional as it breached the First Amendment (Right to Free Speech). Justice Stevens summed up the position of the court on Freedom of Speech when he said in conclusion: As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.

What does this all mean? What you will have noticed is that the cases above all deal with the Bill of Rights and later amendments to the Constitution. It is with these issues that the Supreme Court primarily deals. This is why we use the term Civil Rights and Liberties to deal with any challenges to Federal Government authority on any of these issues. The Supreme Court decides whether Government Legislation is unconstitutional based on the concept of Due Process which is set out in the 14th Amendment Section which says: All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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A2 Government and Politics- Government of the USA- The Judiciary What is Due Process? Its a good question; sadly there isnt a straightforward answer. However we can broadly say that Due Process can be divided into two categories: 1. Substantive Due Process- This deals with the content of the law and ensures that it must not be Arbitrary, Unreasonable and Unconstitutional. 2. Procedural Due Process- This deals with the process that the law goes through and ensures that the procedure of the law must be fair and equal for everyone. Therefore it is on this authority that the Supreme Court will intervene, review and potential void laws. The next step is to look at how and where the Supreme Court has used its power of Judicial Review and what affect this has had. We divide it up into a number of broad areas.

Freedom of Religion and Expression- 1st Amendment The main concern that the court has with the First Amendment is to preserve religious freedom and to ensure that there is a balance between the free expression of others and the potential offence this may cause. Engel v Vitale (1962) The New York Board of Regents was responsible for monitoring educational provisions in the state composed a State prayer which could voluntarily be read out each morning in New York Schools. This was challenged by a family in New York who argued that it violated their religious beliefs. The aim was to avoid any potential religious intolerance by leaving control of prayers to local communities. The Board of Regents Prayer was: "Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us, our teachers, and our country." The US Supreme Court found by a verdict of 6-1 that the actions of the Board of Regents were unconstitutional. Despite the fact that the prayer was of no denomination and a bit bland, it was still an attempt by New York State to approve religion. The constitution attempts to be neutral to religion and the Supreme Court were upholding this.

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A2 Government and Politics- Government of the USA- The Judiciary Zelman v Simmons-Harris (2002) The State of Ohio introduced a voucher programme called the Pilot Project Scholarship Program. This scheme gave school vouchers to underprivileged families in the district of Cleveland which they could use to send to private religious schools rather than Free State schools. Around 3,700 African American families had been given the vouchers (worth $2,250- 1380) of which 96% opted to use them and send their child to a private religious school. This was clearly a controversial case as it showed individual state actively spending money on private religious schools. It was a clear break from the earlier case of Engel. There were two key factions in this case: 1. Conservatives- consisting of the Bush Administration, the Republican party, the Ohio Governor and members of the Christian Church. 2. Liberals- consisting of the Democratic Party, the Teachers Unions and leading academics. The Supreme Court was split along ideological lines. By a margin of 5-4 (all the Liberals dissented) the Court held that the vouchers did not breach the 1st Amendment as the money from the vouchers only went to the Church, if a student made a choice to go there.

The balance between religious expression and enforcing religious beliefs is a fine one in American politics. In the above case of Zelman it was Clarence Thomas who wrote the majority verdict, his message was quite clear: The promise of public school education has failed poor inner-city blacks. If society cannot end racial discrimination, at least it can arm majorities with the education to defend themselves from some of the discriminations effects. * It is worth noting that Clarence Thomas went to a Catholic School in Georgia which he maintained helped him achieve the prominence that he now has.

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A2 Government and Politics- Government of the USA- The Judiciary McConnell vs. Federal Election Commission (2003) This case dealt with the Bipartisan Campaign Finance Reform Act 2002 (also known as the McCain-Feingold Bill after its supports John McCain and Russell Feingold). This law reformed the way that candidates could raise and spend money during any political campaign in the USA. The biggest achievement was a total ban on soft money (unrestricted donations made directly to the political parties) and restrictions on the ability of Parties, Unions and Corporations to use their funding to advertise on behalf of a particular Candidates campaign. The bill was challenged by the Republican Majority leader in the Senate Mitch McConnell who argued that to restrict the fundraising ability of candidates in this way would restrict the 1st Amendment Right to free speech of candidates and undermine the Democratic Process. The Supreme Court held by a majority of 5-4 that the restriction of this soft money did not infringe free speech. They held almost the opposite, that such restrictions avoided political corruption and this meant a more level playing field between candidates.

Ashcroft v Free Speech Coalition (2002) - This case dealt with the Child Pornography Prevention Act 1996 which criminalised: Any visual depiction, including any photograph, film, video, picture or computer generated image or picture that appears to be, of a minor engaging in sexually explicit conduct and any image that is Advertised, promoted, presented, described or distributed in such a manner that conveys the impression that it depicts a minor engaged in sexually explicit conduct. The Free Speech Coalition presented a case arguing that the act was too vague and criminalised activity which was actually not obscene (such as scenes in films portraying minors but played by adults) and did not actually involve real children (but instead virtual ones). By a majority of 6-3 the Supreme Court held that the above provisions of the Child Pornography Prevention Act 1996 were Unconstitutional Justice Anthony Kennedy summed the position of the law as: Few legitimate movie producers or book publishers, or few other speakers in any capacity, would risk distributing images in or near the uncertain reach of this law. The Constitution gives significant protection from over-broad laws that chill speech within the 1st Amendments vast and privileged sphere.

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A2 Government and Politics- Government of the USA- The Judiciary Freedom from unreasonable searches and the rights of arrested persons- 4th Amendment One area of the Constitution which has caused considerable controversy particularly in the War on Terror is the rights and responsibilities of the security services in relation to search and arrest. United States vs. Drayton (2002) This case concerned the search of 2 men on an Intercity Bus in Florida. Police regularly were allowed on the buses to search for drugs or prohibited items. On this occasion 3 officers were allowed onto the Bus in Tallahassee and began to move down the bus speaking to passengers. An officer approached Christopher Drayton and Clifton Brown, identified himself and told the two men that he was searching for Drugs and Weapons. The Officer asked Brown and Drayton if they minded being searched. Upon searching the two men the officer found quantities of Cocaine and they were arrested. Drayton and Brown protested in court that they were never informed that the search was voluntary and if they had known that they could refuse they would have done so. The Supreme Court held by 6-3 that the 4th Amendment had not been breached. It didnt matter that the two men had not been told a search was voluntary, the officer had made a request to search their person and it was held that this was enough. However in dissent Justice Souter argued that the situation was essentially one in which the men were placed in a confined space and had to comply if they wished to exit.

Board of Education vs. Earls (2002) This case concerned the Student Activities Drug Testing Policy which had been adopted by schools in Oklahoma. In which students aged between 13 and 18 who wished to participate in after school activities must submit to random drugs tests. The tests were taken without any suspicion and applied to all after school clubs ranging from Cheerleaders to the Future Farmers. The Supreme Court held by a majority of 5-4 that the Drugs Tests did not breach the 4th Amendment. The means of obtaining the drugs tests were fairly unobtrusive and did the minimum to interfere with the personal privacy of the students concerned. In the majority decision Clarence Thomas asserted that: This policy reasonably serves the school districts important interest in detecting and preventing drug use in its students. Dissenting Justice Ginsburg called it Unreasonable, Capricious and even perverse.

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A2 Government and Politics- Government of the USA- The Judiciary Dickerson vs. United States (2000) This case relates to the so-called Miranda rights set out in the case of Miranda vs. Arizona (1966). This is the generic phrase recited by the Police upon arrest to ensure that it is performed legally, it goes as follows: "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense." Without using this phrase the Police can only ask certain questions to get the identity of the individual. In this case Dickerson was been questioned about a robbery he had been connected to. He then made statement which implicated him as the getaway driver in a series of robberies and he was charged with this as well. At trial Dickinson disputed as to whether he had been advised of his Miranda Rights. By a margin of 7-2 the Supreme Court kept the Miranda rules, Chief Justice Rehnquist held that Miranda has become embedded in routine police practice to the point where the warning has become part of the national culture, in this respect it was an extension of the current constitutional arrangement which congress could not change by legislation.

Capital Punishment and the Supreme Court- 8th Amendment The debate as to whether the use of the death penalty is a breach of the 8th Amendment Cruel and Unusual Punishment test has rumbled on through the Supreme Court for some time. Furman vs. Georgia (1972) Furman was burgling a house when he was disturbed by the home owner. As he attempted to escape he tripped and fell, during this the gun that he was holding went off and he killed the resident. Furman was convicted of Murder and sentenced to death. He appealed to the Supreme Court arguing that use of the death penalty was a breach of the 8th Amendment. The Supreme Court by a margin of 5-4 agreed with Furman. However there was still considerable debate as to what elements of the death penalty could be considered unconstitutional (only 2 justices believed that it was unconstitutional in all circumstances). The main consensus of the Supreme Court was that the current method of execution was unfair and arbitrary (still hanging at this point). Whilst they did not openly declare the death penalty it did lead to most states changing the methods of which they executed their most dangerous criminals and the grounds for execution to ensure that no-one ethnic group was targeted.

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A2 Government and Politics- Government of the USA- The Judiciary Ring vs. Arizona (2002) Ring was found guilty of Murder by a Jury in Arizona, however under Arizona law he could only be given the death penalty if the Judge held that he was the sole cause of death (this was in doubt). The Judge found that Ring satisfied the criteria of Aggravating Factors, despite his previous clean record. Ring appealed to the Supreme Court, arguing that the fact that a Judge went over the Jury to impose a death penalty was a breach of the 6th Amendment. By a margin of 7-2 the Supreme Court held that this was a breach of the 6th Amendment. By allowing a Judge to superimpose a higher sentence then that offered by the Jury was clearly unconstitutional.

Baze vs. Rees (2008) This case involved two inmates who challenged the 4 lethal injection procedure used by the State of Kentucky as part of its death penalty. They argued that Valium to relax, Sodium Pentathol which leaves them unconscious, Pavulon which stops breathing and Potassium Chloride which puts them into cardiac arrest was unconstitutional cruel and unusual punishment. By a majority of 7-2 the Supreme Court rejected this view. They held that Kentuckys system did not violate the 8th Amendment Rights. They held that if performed correctly this process was amongst the most humane of the execution procedures. However 4 did state that States which did not use a humane procedure such as Kentuckys risked being in breach of the 8th Amendment.

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Racial Equality and Abortion Rights- 14th Amendment In the last category which looks at the role of the Supreme Court in protecting Civil Liberties, we consider two of the most controversial elements of Americas recent history. Since the Civil Rights movement of the 1960s America has made great strides in improving racial equality, however most ethnic groups, notably Black and Latino are still greatly underrepresented in the US Political and Legal System. On the issue of Abortion there is no end in sight to the raging debate between the predominantly Conservative Pro-Life and predominantly Liberal Pro-Choice factions which consistently lobby the Supreme Court in the hope of gaining the upper hand on this divisive issue. Brown v Board of Education of Topeka (1954) The US Supreme Court was asked to look at the issue of racial segregation in schools and of schools which had been approved in the earlier case of Plessy v Ferguson (1896). This case concerned the city of Topeka in Kansas which was been challenged on its racial segregation policy by the parents of 13 black students. The Court had to deal with the fundamental issue of Civil Rights at time in Americas History when many black Americans were still fighting for equal civil rights. The court had to decide whether racial segregation interfered with the 14th Amendment (equal rights). The court found unanimously that the Racial Segregation in and of Schools was unconstitutional. Chief Justice Earl Warren summed up the position of the Supreme Court on this issue: We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.

Swann vs. Charlotte- Mecklenburg Board of Education (1971) Whilst Brown had overturned legislative segregation this case dealt specifically with segregation which occurred as a result of state policies on issues such as housing which led to concentrations of Black families in poor areas. The Charlotte-Mecklenburg system used in North Carolina was a clear example of this in which the 14,000 black students in the state attended schools where the racial makeup was at least 99% Black. By a unanimous 9-0 verdict the Supreme Court held that the courts had the power to address this. They used their legal power to influence states into running bussing programmes to distribute black and white students more equally amongst all the State Schools available.

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A2 Government and Politics- Government of the USA- The Judiciary Roe vs. Wade (1973) This is perhaps one of the most famous case in US law dealing with Abortion. Roe was a resident of the state of Texas who sought to abort a pregnancy, however she was unable to do so as under Texas state law a pregnancy could only be aborted if it threatened the life of the woman. The Supreme Court was asked to deal with this complex issue. The Supreme Court held that every woman was entitled to an Abortion under the 14th Amendment. By a majority of 7-2 the court held that Liberty included Freedom of personal choice in matters of marriage and family life. The impact of this decision was wide ranging, it forced 46 states to change their policy on abortion.

Webster vs. Reproductive Health Services (1989) The State of Missouri introduced legislation which prohibited any public sector employees and facilities being used in any abortion which was not to save the mothers life. This was a clear challenge to the earlier decision in Roe vs. Wade and was challenged by as number of groups who argued that this legislation was unconstitutional. By a majority of 5-4 Supreme Court held that the legislation in force in Missouri was Constitutional and could operate within the 14th Amendment. The decision was greeted with reserved support by Conservatives and dismay by Liberals who both saw it as eroding slowly but surely away at the decision in Roe vs. Wade.

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A2 Government and Politics- Government of the USA- The Judiciary Final Thoughts on the role of the Supreme Court This detailed discussion on the role of the Supreme Court leads us to consider 3 major questions: What is the influence of Judicial Review on the Constitution?

What is the political position of the Supreme Court?

What is the Legislative position of the Supreme Court?

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