The men and women who REALLY run America

True power: Kennedy (bottom row, second from left) was appointed by Ronald Reagan in 1988.

Is the US Supreme Court system flawed? Last week Anthony Kennedy, one of the country’s nine most senior judges, announced his retirement. Donald Trump will now choose his replacement.

He was the most important member of the Supreme Court of the United States (SCOTUS). As Florida is a “swing state” in US presidential elections, Anthony Kennedy was the court’s “swing judge”.

A nominal conservative, Kennedy sided with liberals on many decisions, including rulings that legalised same-sex marriage and upheld abortion rights. But last week, the 81-year-old announced his retirement.

President Trump considered around 25 candidates to replace Kennedy. He is planning to announce his pick this coming Monday and is hoping to have a new justice confirmed before the November mid-term elections. Job interviews do not come bigger than this.

The court plays a key role in American life. While it hears fewer than 100 cases a year, it often has the final say when it comes to the country’s most contentious laws, disputes between individual states and the federal government, and on whether or not to grant appeals to stay executions.

Supreme Court justices receive lifetime appointments, meaning that Trump now has the opportunity to influence the Supreme Court — and the nation — long after his presidency ends.

In June, the court ruled on contentious issues such as Trump’s travel ban and gerrymandering.

If a more conservative judge is appointed to replace Kennedy, anti-abortion advocates may try to push for the issue of abortion to be reconsidered by the court.

The US Supreme Court is far more powerful than its British equivalent.

As Britain does not have a written constitution, its laws are more changeable. They can simply be rewritten by an Act of Parliament.

Therefore, judges in the UK Supreme Court are less likely to make “political” decisions — deferring instead to Parliament. When a law is passed, that is it.

In contrast, the US has a tripartite government, with the separation of powers split between the legislature, the executive and the judiciary. SCOTUS is more at liberty to make decisions based on politics, and it can, for example, strike down a law in a way the UK’s Supreme Court cannot.

Balance of power

The US’s system is superior, say some. It places power in the hands of the experts and away from political wrangling. Furthermore, it is often a good idea to restrain the power of elected politicians, who are more concerned with the ongoing election cycle than how best to conserve and improve the nation’s legal system.

Others respond that the American system actually makes the judiciary much more politicised. How can it be right that, thanks to luck, one president might be able to nominate two or three new justices in four years while another nominates none? Parliament or Congress should be supreme, because that is who people have voted for.

You Decide

  1. Which country’s Supreme Court system would you rather have: the US’s or the UK’s?
  2. Can we trust judges not to be biased?

Activities

  1. Pick five qualities you would most want from one of your country’s top judges.
  2. Design a graphic illustrating the separation of powers in either the US or the UK.

Some People Say...

“Presidents come and go, but the Supreme Court goes on forever.”

President William Howard Taft

What do you think?

Q & A

What do we know?
Anthony Kennedy has announced his retirement from the Supreme Court of the United States. That means that after just a year and a half in office, Trump will be able to appoint two SCOTUS judges. One of his first moves as president was to appoint Neil Gorsuch, who was sworn in on April 10, 2017. All SCOTUS nominees have to be voted on by both houses in Congress. But as Republicans hold the majority in both houses, securing the nomination should be a formality.
What do we not know?
Who it will be. According to Trump, the shortlist of five includes two women. Some think he might nominate a female justice as a way of reassuring the Senate’s two most moderate Republicans, who also both happen to be women. As the Republicans hold a narrow majority in the Senate, Trump cannot afford any swing votes.

Word Watch

Florida is a “swing state”
Florida has voted for the winning presidential candidate in all but one presidential election since 1960.
Swing judge
There are nine Supreme Court justices. Excluding Kennedy, four (John Roberts, Samuel Elito, Clarence Thomas and Neil Gorsuch) were appointed by Republican presidents, while the other four (Stephen Breyer, Elena Kagan, Sonia Sotomayor and Ruth Bader Ginsburg) were appointed by Democrats.
Around 25 candidates
The ones we know Trump has interviewed are Amy Coney Barrett, Brett Kavanaugh, Raymond Kethledge and Amul Thapar.
Cases
The court’s judgments also create precedents, directing other judges to follow their interpretation of the law in similar cases. This is the basis of the Common Law system.
Gerrymandering
Manipulating the boundaries of an electoral area so as to favour one party.
Parliament
This is known as “parliamentary sovereignty”.
Legislature
An assembly with the ability to make laws. In the UK’s case, Parliament; in the US’s case, Congress.
Executive
The branch of government that is responsible for the day-to-day management of the state.

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