Constitutional Analysis: Supreme Court Membership

1. Constitutional Analysis Who can be a Supreme Court Justice? What constitutional requirements are there to be a Supreme Court Justice? What extra-constitutional requirements do you think there are? Under the US Constitution, a president must be; • A natural-born US citizen • At least 35 years old • A US resident for at least 14 years

2. Pause For Thought Courts • Jay, Rutledge, and Ellsworth Courts (1789–1800) • Marshall Court (1801–1835) • Taney Court (1836–1864) • Chase Court (1864–1873) • Waite Court (1874–1888) • Fuller Court (1888–1910) • White Court (1910–1921) • Taft Court (1921–1930) • Hughes Court (1930–1941) • Stone Court (1941–1946) • Vinson Court (1946–1953) • Warren Court (1953–1969) • Burger Court (1969–1986) • Rehnquist Court (1986–2005) • Roberts Court (2005–present) Supreme Court “Courts” are named after the Chief Supreme Court Justice that presided over them. Membership of Supreme Court Timeline http://www.supremecourt.gov/about/members.aspx

3. Enquiry Question: Who sits on the bench?

4. Learning Objectives • To understand the constitutional provision for the composition of the Supreme Court • To analyse the extent to which the court is divided between liberal and conservative blocks

5. Pause For Thought Meet the Roberts Court

6. John G. Roberts, Jr.Chief Justice of the United States • Born in Buffalo, New York, 1955(57 years old) • Married (2 children) • Harvard College, Harvard Law School • Associate Counsel to President Ronald Reagan, White House Counsel’s Office 1982–1986 • Practiced law at private firm 1986–1989 and 1993–2003 • United States Court of Appeals for the District of Columbia Circuit 2003. • Chief Justice of the United States Supreme Court since 29th September 2005. Appointed by George W Bush (Republican)

7. Neil GorsuchAssociate Justice • Born 1967 in Denver, Colorado • Married (2 children) • Columbia University, BA in Political Science • Harvard Law School, Juris Doctor (classmate of Barack Obama) • Doctor of Philosophy degree in Law from Oxford University • Private practice 1995-2005 • Worked in Department for Justice 2005-2006– focused on “terror litigation” from War on Terror, Abu Ghraib torture, Guantanamo Bay, NSA warrantless surevillance • US Circuit Court Judge 2006-2016 • Appointed SC Associate Justice 2017 Appointed by Donald Trump (Republican)

8. Anthony M. KennedyAssociate Justice • Born Sacramento, California, 1936. • Married (3 children) • Stanford University, London School of Economics, Harvard Law School • Private practice in San Francisco, California 1961–1963, Sacramento, California 1963–1975 • Professor of Constitutional Law at the McGeorge School of Law, University of the Pacific 1965-1988 • United States Court of Appeals for the Ninth Circuit 1975-88. • Associate Justice of the Supreme Court, since 18th February, 1988. Appointed by Ronald Reagan (Republican)

9. Clarence ThomasAssociate Justice • Born Georgia, 1948 • Married x2 (1 child) • Holy Cross College, Yale Law School • Assistant Attorney General of Missouri 1974–1977 • Assistant Secretary for Civil Rights, U.S. Department of Education 1981–1982 • Chairman of the U.S. Equal Employment Opportunity Commission 1982–1990 • Judge of the United States Court of Appeals for the District of Columbia Circuit in 1990-1. • Associate Justice of the Supreme Court, since 23rd October 1991. Appointed by George H W Bush (Republican) African American

10. Ruth Bader GinsburgAssociate Justice • Born Brooklyn, New York, 1933. • Married (2 children) • Cornell University, Harvard Law School, Columbia Law School • Professor of Law at Rutgers University School of Law 1963–1972 • Professor of Law at Columbia Law School 1972–1980 • Judge of the United States Court of Appeals for the District of Columbia Circuit 1980-1993 • Associate Justice of the Supreme Court since 10th August 1993. Appointed by Bill Clinton (Democrat)

11. Stephen G. BreyerAssociate Justice • Born San Francisco, California, 1938 • Married (3 children) • Stanford University, Oxford University, Harvard Law School • Assistant Special Prosecutor of the Watergate Special Prosecution Force 1973 • Assistant Professor, Professor of Law, and Lecturer at Harvard Law School 1967–1994 a • Judge of the United States Court of Appeals for the First Circuit 1980-1990 (Chief Judge, 1990–1994) • Associate Justice of the Supreme Court since 3rd August 1994. Appointed by Bill Clinton (Democrat)

12. Samuel Anthony Alito, Jr.Associate Justice • Born Trenton, New Jersey, 1950 • Married (2 children) • Assistant U.S. Attorney, District of New Jersey, 1977–1981 • Assistant to the Solicitor General, U.S. Department of Justice, 1981–1985 • Deputy Assistant Attorney General, U.S. Department of Justice, 1985–1987 • U.S. Attorney, District of New Jersey, 1987–1990 • United States Court of Appeals for the Third Circuit 1990-2006. • Associate Justice of the Supreme Court since 31st January 2006. Appointed by George W Bush (Republican) Italian American

13. Sonia SotomayorAssociate Justice • Born Bronx, New York, 1954 • Princeton University, Yale Law School, Editor of Yale Law Journal • Assistant District Attorney of New York 1979–1984 • U.S. District Court, Southern District of New York 1992–1998 • Judge on the United States Court of Appeals for the Second Circuit 1998–2009. • Associate Justice of the Supreme Court since 8th August 2009. Appointed by Barack Obama (Democrat) Hispanic

14. Elena KaganAssociate Justice • Born New York, New York, 1960.  • Princeton University, Oxford University, Harvard Law School, editor of Harvard Law Review. • Assistant professor University of Chicago Law School 1991-1995.  • Associate Counsel to President Clinton 1995-99 • Profess of Law Harvard University 2001 • Dean of Harvard Law School 2003. • Solicitor General of the United States 2009-2010 • Associate Justice of the Supreme Court since August 2010. Appointed by Barack Obama (Democrat) Jewish

15. Ideological Leanings/Political Affiliations

16. Judicial Interpretations Loose constructionism requires a judge to make inferences from a statute or constitution and to ‘read between the line’, rather than follow the letter of the law. Strict constructionism requires a judge to apply the text only as it is spoken. Once the court has a clear meaning of the text, no further investigation is required. Judges should avoid drawing inferences from a statute or constitution and focus only on the text itself. Originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution.

17. Judicial Activism • Judges believe they have a duty to interpret the Constitution so that their decision will change the way society does things. • Judges see this as interpreting the Constitution positively in order to put things right that have been wrong. • Judges can be either “strict constructionist” or “loose constructionist”. • Strict constructionists can be described as ‘judicially passive’ – the opposite of judicial activism. • 'Judicial activism’ is a term which lacks precise definition, and is often used as a term of abuse for decisions with which the speaker or writer disagrees. • Arguably, the most objective definition is that judicial activism is the overriding by the Supreme Court of a state or congressional law, or the reversal of one of the court’s own precedents; thus defined, judicial activism can be practised by both conservative and liberal justices, and cases such as Citizens United and Heller can arguably be seen as part a new era of conservative activism.

19. Learning Objectives • To understand the constitutional provision for the composition of the Supreme Court • To analyse the extent to which the court is divided between liberal and conservative blocks

20. In what ways is the independence of Supreme Court Justices protected? (15)

21. In what ways is the independence of Supreme Court Justices protected? (15) Among the ways in which the independence of Supreme Court justices is protected include: • the separation of powers means that the judicial function is vested solely in the court, and it is consequently free from political interference in its decision-making • justices are appointed not elected • the two stage appointment process of nomination by the president and confirmation by the Senate reduces the possibility of overtly political appointments • justices’ salaries cannot be reduced during their period of office • justices have lifetime tenure and can only be removed by impeachment • impeachment is the responsibility of both houses of Congress, making politically motivated impeachment less likely to succeed

22. Homework Application Task: In what ways is the independence of Supreme Court Justices protected? (15) Flipped Learning Preparation Task: Appointment Process for the Supreme Court (Pearson p388-391) Stretch & Challenge Task Wiki: Ideological Leanings of the Supreme Court