Civil Liberties (cont’d) June 4th, 2003

Security and Civil Liberties – An Altered Balance Post-9/11 order/security vs. individual libertyorder/security vs. individual liberty immediate government reaction to 9/11immediate government reaction to 9/11 detention of non-citizens without laying chargesdetention of non-citizens without laying charges order that solicitor-client privilege would not be honored by Justice Departmentorder that solicitor-client privilege would not be honored by Justice Department refusing to provide name, location of detention or numbers of those arrestedrefusing to provide name, location of detention or numbers of those arrested –overwhelming public support 86% viewing govt’s action as appropriate (Newsweek)86% viewing govt’s action as appropriate (Newsweek)

Security and Civil Liberties – An Altered Balance Post-9/11 USA PATRIOT ActUSA PATRIOT Act –Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism

Security and Civil Liberties – An Altered Balance Post-9/11 USA PATRIOT ActUSA PATRIOT Act –ratification of Ashcroft response broadened government ability to implement wiretappingbroadened government ability to implement wiretapping surveillance of s and computerssurveillance of s and computers power to detain and deport foreignerspower to detain and deport foreigners increased power to detect money launderingincreased power to detect money laundering –received overwhelming support in both House and Senate

The Constitution of the United States of America (1787) “We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Main Point! there is a strong tension between individual rights and collective well- being in the American political systemthere is a strong tension between individual rights and collective well- being in the American political system overall trend has been for Americans to increasingly view themselves as rights- bearing individuals and to resolve political disputes in this manneroverall trend has been for Americans to increasingly view themselves as rights- bearing individuals and to resolve political disputes in this manner

June 4 th, 2003 THE UNITED STATES SUPREME COURT

Supreme Court: Functions final “Court of Appeal”final “Court of Appeal” adjudicates disputes between government branchesadjudicates disputes between government branches adjudicate between orders of governmentadjudicate between orders of government adjudicate between governments (both state and federal) and citizensadjudicate between governments (both state and federal) and citizens –the Bill of Rights

Declare Laws Unconstitutional Declare Acts Unconstitutional OVERVIEW: FORMAL CHECKS AND BALANCES

Checking the Other Branches Supreme Court and CongressSupreme Court and Congress –what happens when the two disagree Congress accepts Supreme Court decisionCongress accepts Supreme Court decision constitutional amendment (rare)constitutional amendment (rare) pass slightly revised lawpass slightly revised law –often at Supreme Court’s suggestion mainly depends on the political popularity of what Congress is doing!mainly depends on the political popularity of what Congress is doing!

Checking the Other Branches Supreme Court and PresidentSupreme Court and President –few major rulings curbing presidential power constitutional language re: powers of the president is vagueconstitutional language re: powers of the president is vague aura of presidencyaura of presidency –Court has upheld sweeping presidential powers in foreign and military affairs –shield of joint action president strongest against judicial challenge when acting in conjunction with Congresspresident strongest against judicial challenge when acting in conjunction with Congress

Power of the Court n “The Court’s only effective power is the power to persuade.” Henry J. Abraham, n confer legitimacy n where does the legitimacy of the court rest? –impartiality –decisiveness –fit with broader political cultural consensus

Impartiality and the Practice of Decision-Making Control over DocketControl over Docket –limited to cases put to the Supreme Court Judicial ReasoningJudicial Reasoning Rules of RestraintRules of Restraint

Styles of Decision-Making judicial restraint vs. judicial activismjudicial restraint vs. judicial activism strict constructionism vs. non- constructionismstrict constructionism vs. non- constructionism

Constraints on the Courts decision-making rulesdecision-making rules composition/appointmentcomposition/appointment –independence from President nomination must be ratified by Senatenomination must be ratified by Senate once appointed, President cannot removeonce appointed, President cannot remove –tenure -- life President only has limited opportunities to appointPresident only has limited opportunities to appoint

Confirms Nominations, Impeach Nominates Judges OVERVIEW: FORMAL CHECKS AND BALANCES

Constraints on the Courts decision-making rulesdecision-making rules composition/appointmentcomposition/appointment –independence from President nomination must be ratified by Senatenomination must be ratified by Senate once appointed, President cannot removeonce appointed, President cannot remove –tenure -- life President only has limited opportunities to appointPresident only has limited opportunities to appoint concern with legitimacyconcern with legitimacy

Composition of the US Supreme Court Liberal/Moderate Swing Votes Conservative 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 (Chief Justice) W.H. Rehnquist (Chief Justice) Republican 1975 (Ford) Retire 2005

Composition of the US Supreme Court Liberal/Moderate Swing Votes Conservative 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 (Chief Justice) W.H. Rehnquist (Chief Justice) Republican 1975 (Ford) Retire 2005

Composition of the US Supreme Court Liberal/Moderate Swing Votes Conservative 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 (Chief Justice) W.H. Rehnquist (Chief Justice) Republican 1975 (Ford) Retire 2005

Main Point! the Supreme Court is politicalthe Supreme Court is political however, it is politics by other meanshowever, it is politics by other means –must conform to rules of judicial reasoning –decisions and behaviour of the courts are constrained by the need to maintain legitimacy