june 9 th, 2003 the united states supreme court (cont’d)
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June 9June 9thth, 2003, 2003
THE UNITED STATES THE UNITED STATES SUPREME COURT SUPREME COURT
(Cont’d)(Cont’d)
Impartiality and the Practice of Impartiality and the Practice of Decision-MakingDecision-Making
• Control over DocketControl over Docket– limited to cases put to the Supreme Courtlimited to cases put to the Supreme Court
• Judicial ReasoningJudicial Reasoning
• Rules of RestraintRules of Restraint
Styles of Decision-MakingStyles of Decision-Making
• judicial restraint vs. judicial activismjudicial restraint vs. judicial activism
• strict constructionism vs. non-strict constructionism vs. non-constructionismconstructionism
Constraints on the CourtsConstraints on the Courts
• decision-making rulesdecision-making rules
• composition/appointmentcomposition/appointment– independence from Presidentindependence from President
• nomination must be ratified by Senatenomination must be ratified by Senate• once appointed, President cannot removeonce appointed, President cannot remove
– tenure -- lifetenure -- life
• President only has limited opportunities to President only has limited opportunities to appointappoint
Constraints on the CourtsConstraints on the Courts
• decision-making rulesdecision-making rules
• composition/appointmentcomposition/appointment– independence from Presidentindependence from President
• nomination must be ratified by Senatenomination must be ratified by Senate• once appointed, President cannot removeonce appointed, President cannot remove
– tenure -- lifetenure -- life
• President only has limited opportunities to President only has limited opportunities to appointappoint
• concern with legitimacyconcern with legitimacy
Composition of the US Supreme CourtComposition of the US Supreme Court
Liberal/ModerateLiberal/Moderate
Swing VotesSwing Votes
ConservativeConservative
J.P. Stevens J.P. Stevens Republican 1975 (Ford) Retire 2001
D. Souter D. Souter Republican 1990 (Bush) Retire 2020
R. Bader Ginsburg R. Bader Ginsburg Democrat 1993 (Clinton) Retire 2009
S. Day O’Connor S. Day O’Connor Republican 1981 (Reagan). Retire 2011
S. Breyer S. Breyer Democrat 1994 (Clinton). Retire 2019
A. Kennedy A. Kennedy Republican 1988 (Reagan) Retire 2017
C. Thomas C. Thomas Republican 1991 (Bush) Retire 2029
A. Scalia A. Scalia Republican 1986 (Reagan) Retire 2017
W.H. Rehnquist W.H. Rehnquist (Chief (Chief
Justice)Justice) Republican 1975 (Ford) Retire 2005
Composition of the US Supreme CourtComposition of the US Supreme Court
Liberal/ModerateLiberal/Moderate
Swing VotesSwing Votes
ConservativeConservative
J.P. Stevens J.P. Stevens Republican 1975 (Ford) Retire 2001
D. Souter D. Souter Republican 1990 (Bush) Retire 2020
R. Bader Ginsburg R. Bader Ginsburg Democrat 1993 (Clinton) Retire 2009
S. Day O’Connor S. Day O’Connor Republican 1981 (Reagan). Retire 2011
S. Breyer S. Breyer Democrat 1994 (Clinton). Retire 2019
A. Kennedy A. Kennedy Republican 1988 (Reagan) Retire 2017
C. Thomas C. Thomas Republican 1991 (Bush) Retire 2029
A. Scalia A. Scalia Republican 1986 (Reagan) Retire 2017
W.H. Rehnquist W.H. Rehnquist (Chief (Chief
Justice)Justice) Republican 1975 (Ford) Retire 2005
Composition of the US Supreme CourtComposition of the US Supreme Court
Liberal/ModerateLiberal/Moderate
Swing VotesSwing Votes
ConservativeConservative
J.P. Stevens J.P. Stevens Republican 1975 (Ford) Retire 2001
D. Souter D. Souter Republican 1990 (Bush) Retire 2020
R. Bader Ginsburg R. Bader Ginsburg Democrat 1993 (Clinton) Retire 2009
S. Day O’Connor S. Day O’Connor Republican 1981 (Reagan). Retire 2011
S. Breyer S. Breyer Democrat 1994 (Clinton). Retire 2019
A. Kennedy A. Kennedy Republican 1988 (Reagan) Retire 2017
C. Thomas C. Thomas Republican 1991 (Bush) Retire 2029
A. Scalia A. Scalia Republican 1986 (Reagan) Retire 2017
W.H. Rehnquist W.H. Rehnquist (Chief (Chief
Justice)Justice) Republican 1975 (Ford) Retire 2005
Main Point!Main Point!
• the Supreme Court is the Supreme Court is politicalpolitical
• however,however, it is politics by other means it is politics by other means– must conform to rules of judicial reasoningmust conform to rules of judicial reasoning– decisions and behaviour of the courts are decisions and behaviour of the courts are
constrained by the need to maintain legitimacyconstrained by the need to maintain legitimacy
• intent is to provide balance against branches of intent is to provide balance against branches of government which are more responsive to government which are more responsive to mass political pressuremass political pressure
Images of the PresidencyImages of the Presidency
• the “imperial” presidencythe “imperial” presidency
• the “imperilled” presidencythe “imperilled” presidency
• the President as persuaderthe President as persuader
Formal Roles of the PresidentFormal Roles of the President• formal powers over other branches of formal powers over other branches of
governmentgovernment
Controls Budget, Approves Controls Budget, Approves Nominations and Treaties, Nominations and Treaties, Override Veto, ImpeachOverride Veto, Impeach
Nominates Judges
VETO!
Declare Acts Declare Acts UnconstitutionalUnconstitutional
Formal Roles of the PresidentFormal Roles of the President• formal powers over other branches of governmentformal powers over other branches of government
• Chief Political ExecutiveChief Political Executive– the White Housethe White House– Executive Office of the PresidentExecutive Office of the President– the Cabinetthe Cabinet
• Head of StateHead of State
• Commander in ChiefCommander in Chief
• Key powers in Foreign PolicyKey powers in Foreign Policy
Formal Limits on the Power of Formal Limits on the Power of the Presidentthe President
• CongressCongress
Controls Budget, Approves Controls Budget, Approves Nominations and Treaties, Nominations and Treaties, Override Veto, ImpeachOverride Veto, Impeach
VETO!
Formal Limits on the Power of Formal Limits on the Power of the Presidentthe President
• CongressCongress
• Supreme CourtSupreme Court
Controls Budget, Approves Controls Budget, Approves Nominations and Treaties, Nominations and Treaties, Override Veto, ImpeachOverride Veto, Impeach
Nominates Judges
VETO!
Declare Acts Declare Acts UnconstitutionalUnconstitutional
Formal Limits on the Power of Formal Limits on the Power of the Presidentthe President
• CongressCongress
• Supreme CourtSupreme Court
• Term Limits -- 22nd Amendment (1951)Term Limits -- 22nd Amendment (1951)– lame duck presidentlame duck president
– unrestrained presidentunrestrained president
Informal Power of the PresidentInformal Power of the President
• five constituenciesfive constituencies– the executive officialdomthe executive officialdom– CongressCongress– partisanspartisans– citizens at largecitizens at large– interests from abroadinterests from abroad
Informal Power of the President Informal Power of the President
five constituenciesfive constituencies unity and energyunity and energy symbolic leadersymbolic leader
Images of the PresidencyImages of the Presidency
• the “imperial” presidencythe “imperial” presidency
• the “imperilled” presidencythe “imperilled” presidency
• the President as persuaderthe President as persuader
The “Power” of the Presidency?The “Power” of the Presidency?
• Different Times/Presidents...Different Different Times/Presidents...Different Presidential ImagesPresidential Images– electoral mandateelectoral mandate
Presidential Election ResultsPresidential Election Results
010203040506070
Nixon
1972
Carter
1976
Reaga
n 1980
Reaga
n 1984
Bush 19
88
Clinto
n 1992
Clinto
n 1996
Bush Jr
. 200
0
Vote % Margin %
The “Power” of the Presidency?The “Power” of the Presidency?
• Different Times/Presidents...Different Different Times/Presidents...Different Presidential ImagesPresidential Images– electoral mandateelectoral mandate
– cycle of presidential popularitycycle of presidential popularity
The “Power” of the Presidency?The “Power” of the Presidency?
• Different Policy Areas...Different Different Policy Areas...Different Presidential ImagesPresidential Images– domestic policy vs. foreign policydomestic policy vs. foreign policy
• the main formal checks on presidential power the main formal checks on presidential power tend to operate in the domestic realmtend to operate in the domestic realm
– CongressCongress
– Supreme CourtSupreme Court
– military action and presidential popularitymilitary action and presidential popularity
The “Power” of the Presidency?The “Power” of the Presidency?
• Power to Propose, Power to OpposePower to Propose, Power to Oppose– ability of president to proposeability of president to propose
• ability of president to enact legislationability of president to enact legislation
– ability of president to opposeability of president to oppose
The “Power” of the Presidency?The “Power” of the Presidency?
• Different Times/Presidents...Different Different Times/Presidents...Different Presidential ImagesPresidential Images
• Different Policy Areas...Different Different Policy Areas...Different Presidential ImagesPresidential Images
• Power to Propose, Power to OpposePower to Propose, Power to Oppose
Main Point!Main Point!
• the power of presidency is...the power of presidency is...– variable and fluidvariable and fluid– circumscribedcircumscribed
• the different images of presidential power the different images of presidential power mirror the tension between mass politics and mirror the tension between mass politics and concern for individual rights and limited concern for individual rights and limited governmentgovernment
• tension among different democratic models is tension among different democratic models is evident in the paradoxical public views of the evident in the paradoxical public views of the presidency”presidency”
Paradoxes of the PresidencyParadoxes of the Presidency• 1. Demand strong leadership/Suspicious of 1. Demand strong leadership/Suspicious of
strong leadershipstrong leadership• 2. Want president to represent “common” 2. Want president to represent “common”
people; yet want president to be a heroic people; yet want president to be a heroic figurefigure
• 3.Want a president that is decent, just, caring, 3.Want a president that is decent, just, caring, compassionate; yet want the president to be compassionate; yet want the president to be ruthless in situations that require it.ruthless in situations that require it.
Paradoxes of the PresidencyParadoxes of the Presidency
• 4. Want president to be “above politics”; 4. Want president to be “above politics”; yet an effective president must be highly yet an effective president must be highly political.political.
• 5. Want a president that can unify diverse 5. Want a president that can unify diverse people and interests; yet, want a president people and interests; yet, want a president that will take firm stands on controversial that will take firm stands on controversial issues (that necessarily divide people)issues (that necessarily divide people)
Paradoxes of the PresidencyParadoxes of the Presidency
• 6. Want president to provide vision, 6. Want president to provide vision, leadership; yet, want president to respond leadership; yet, want president to respond to the will of the people.to the will of the people.
• 7. Want powerful, self-confident 7. Want powerful, self-confident leadership; suspicious of leaders who leadership; suspicious of leaders who seem arrogant or view themselves as seem arrogant or view themselves as infallible and/or above criticism.infallible and/or above criticism.
Paradoxes of the PresidencyParadoxes of the Presidency
• 8. What it takes to 8. What it takes to becomebecome president are president are not necessarily the traits need to not necessarily the traits need to bebe president.president.
• 9. Presidents are strong in some areas and 9. Presidents are strong in some areas and weak in others -- leads public to a clash weak in others -- leads public to a clash of expectationsof expectations
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