The Supreme Court: Tutorial 1
The Supreme Court is described in Article III of the Constitution
Originally it was established to resolve disputes between States and to protect citizen’s rights. It first met in 1790.
Marbury v Madison, 1803: was the first time the Court ‘struck down’ an action (of the Federal government) as unconstitutional
McCulloch v Maryland, 1819: was the first time Court ‘struck down’ a state action as unconstitutional and asserted Federal government power over States
It can strike down an Act of Congress or an action of the Executive as unconstitutional.
Note: Marbury vs Madison (1803) is of constitutional significance in the USA. It was the first time the Supreme Court ‘struck down’ an action of the executive as unconstitutional. The newly-elected incoming president, represented by Madison, tried to block the still incumbent president, Adams, from appointing Marbury to the lower courts. The Supreme Court ruled in favour of Madison.
Mucculloch vs Maryland (1819) saw the Supreme Court uphold the right for a national bank, represented by Mucculloch, to open in the State of Maryland, thus establishing that individual States laws and actions could be subject to Supreme Court judicial review.
(You do not need to know the details of these cases but simply that they were the first examples of the Supreme Court making a constitutional ruling on federal government matters (1803) and on State matters (1819) as a result of a judicial review.)
Appointment of Justices
There are 9 Justices (an odd number so that there will always be a majority verdict). Quite often the court is fairly evenly matched between liberal and conservative Justices with one Justice being pivotal. This Justice is known as the ‘swing Justice’ and will change their position from case to case. The current swing Justice is Justice Kennedy.
Justices are appointed by Presidential nomination and Senate ratification under their Advice & Consent powers
Nominees are subject to:
FBI checks;
ABA (the American Bar Association) rating: Clarence Thomas scored low in this, but it is increasingly ignored;
Senate Judiciary Committee interview;
Full Senate ratification/rejection
Note: Justices do not have to be experienced judges. Some have been legal academics. Obama’s nominee, Elena Kagan, was Professor of Law at Harvard University.
In 1967: Johnson appointed Thurgood Marshall as the first black Justice
Republican presidents try to nominate restraining justices(see tutorial 2 below) but, Eisenhower appointed Earl Warren, who became very liberal and his Court was activist – Eisenhower later said it was “the biggest damn fool mistake I ever made”; and Nixon appointed Burger, who also turned out to be liberal.
Opportunities for nomination are rare; there have been more Republican opportunities: Reagan 4; Carter 0; G.W. Bush 2; Obama 2; Trump 1.
In his appointments Obama has tried to redress the issues of descriptive representation in the Court. He has appointed two women: Sonya Sotomayor, who is Hispanic, and Elena Kagan (at 55, the youngest Justice), bringing the total number of female Justices to three (Ruth Ginsburg was a Clinton nominee).
Nominations can be controversial: The Senate rejected Robert Bork in 1987 for being too conservative (Reagan). Obama was unable to secure a replacement to Justice Scalia in his final year in office: the position was left open until Trump appointed Justice Neil Gorsuch.
G.W. Bush’s nominee, John Roberts (Chief Justice) was ratified on a partisan vote in 2005.
Sandra Day O'Connor resigned at roughly the same time as G.W. Bush was looking to fill the Chief Justice post due to the death of William Rehnquist. Bush first nominated Harriet Miers. She had no experience as a judge and she was a personal friend of Bush. Under pressure and intense scrutiny from the Senate Judicial Committee she withdrew (even though she would almost certainly have been ratified on a partisan vote in the Senate). Instead, Bush nominated Samuel Alito, who was nominated on a partisan vote.
Justices have tenure for life “during good behaviour”
No Supreme Court Justice has ever been impeached, although Abe Fortas came close in 1969 over an expenses scandal. He had been tipped as a potential nominee to be the next Chief Justice.
The current Supreme Court (SCOTUS) comprises 9 Justices. There are three women; two Justices are of Jewish heritage, one African American, and one Hispanic. The Chief Justice is Justice Roberts, the Swing Justice, Justice Kennedy; the newest Justice is Justice Gorsuch. At 49 Gorsuch is the youngest, while at 84 Justice Ginsberg is the oldest.
Test yourself on the Supreme Court
Which Article describes the Supreme Court?
What was the importance of Marbury vs Madison (1803)?
What was the importance of Mucculloch vs Maryland (1819)?
How are Justices appointed?
What did Eisenhower say about his nomination of Earl Warren as Chief Justice?
Which Reagan nomination was rejected by the Senate in 1987?
Which Bush nominee withdrew under intense pressure during the appointments process?
Who is the current chief justice?
Constitutional interpretation: tutorial 2
The court has been criticised as “Nine politicians sitting on a bench”, because they have the power to effect social and political change through constitutional interpretation. Such rulings, which have wider social or political implications and bring about social change, are known as landmark rulings.
Judicial activism
Courts which demonstrate judicial activism are those that adhere to loose constructionism. This means that thy interpret the words of the constitution in the light of modern conditions and current reality, reading into the words of the constitution their views of what is best for the country at the present time. They produce landmark rulings the effects of which go beyond the immediate case in question across the wider society. In effect, they engineer social and political change from the bench.
Activist Courts (note: Courts are named after their Chief Justice)
Warren Court: 1953-69
Brown v Education Board of Topeka (1954): overturned Plessy v Ferguson (1896) and declared racial segregation as unconstitutional
Miranda v Arizona (1966) made it a requirement that suspects are read their rights on arrest.
Engel v Vitale (1969) ruled that it was unconstitutional for New York State to impose an official school prayer (under the First Amendment, the freedom of religious worship).
Burger Court: 1969-86
Roe v Wade (1973) made abortion constitutional
Swann v Charlotte-Mecklenburg Board of Education (1971) allowed the bussing of students to improve integration in schools
But
New York v Quarles (1984) eroded the Miranda Laws by introducing a public safety clause to the reading of rights. If the public are in danger the police can take whatever measures, including shooting, before reading rights. (This could be seen as judicial restraint rather than activism because it curtails, rather than extends, rights.)
Judicial restraint
Courts which demonstrate judicial restraint are those who follow the judicial philosophy of strict constructionism and original intent (‘originalism’ or ‘textualism’). This means that they interpret the constitution more literally and make their judgement based on the words of the document with the framer’s intentions in mind. (NOTE: Criticism of 'original intent' are that society is more complex now than the Founding Fathers could imagine and that rights have been extended to groups that the Founding Fathers could not imagine gaining rights: eg, women and African Americans.)
Restraining Courts
Restraining Courts sometimes erode rights extended by activist courts.
Rehnquist Court (1986-2005)
Webster v Reproductive Health Services (1989): allowed public health workers to refuse abortions on conscience and partly eroded Roe v Wade.
Duckworth v Eagan (1989) further eroded the Miranda Laws by stating that the police do not have to read the exact wording of the rights of the arrested.
Bush v Gore (2000): secured G.W. Bush as President
But in Grutter v Bollinger (2003) the Rhenquist Court ruled that the affirmative action admissions policy of the University of Michigan Law School was admissible (so not all the Rhenquist Court rulings were restraining).
Roberts Court (2005-Present) it is arguable whether this Court is retraining or not.
Among the ‘restraining’ rulings are:
In Baze v Rees (2008) the Court ruled that lethal injection permissible. A challenge had been mounted using the eight amendment, i.e. that lethal inject amounted to a ‘cruel and unusual punishment’.
Gonzales v Carhart (2007) banned partial-birth abortions, Kennedy, the ‘swing justice,’ was decisive in this vote which further eroded Roe v Wade
District of Columbia v Heller (2008): ruled that the second amendment prevented the District of Columbia from banning handguns.
Citizens United v Federal Election Commission (2010) used the first amendment (free speech) to overturn the bi-partisan McCain Feingold Act (2002), which limited campaign spending from lobby groups, and allowed lobby groups/businesses to spend as much money as they wished in supporting Congressmen’s campaigns.
However, the Roberts Court has arguably made some more ‘activist’ rulings:
In Hamdam v Rumsfeld (2006): the Roberts Court ruled that detainees had the right to the ‘due process’ of law in Guantanamo Bay
The Roberts Court also supported the Affordable Care Act (Obamacare) twice: eg King v Burwell (2015). (The challenge was a technical one, mounted on the ‘affordability’ of the insurance.)
Similarly in NIFIB v Seleblius (2012) the Affordable Care Act was upheld. (The challenge was on a technicality around Congress’s taxing power.)
In Obergefell v Hodges (2015) the court ruled in favour of same sex marriage as a constitutional right. Kennedy was the swing justice in this decision.
(Arguably no court has been entirely restraining or activist: it depends on the majority verdict of the Justices in the particular case and the pivotal role of the 'swing Justice', currently Kennedy, is vital.)
Protection of rights by the Supreme Court
The inalienable rights of US citizens are entrenched in the first 10 amendments and are protected by the Supreme Court, using its powers of interpretation and judicial review. It is usually activist courts that extend rights through their landmark rulings.
Protection of rights (cases)
Arrest: Miranda v Arizona (1966) and then eroded by Duckworth v Eagan (1984) and New York v Quarles (1989)
Religion: Engel v Vitale (1962) official school prayer not allowed
Freedom of Speech: Texas v Johnson (1989) allowed flag burning
Right to bear arms: District of Columbia v Heller (2008)
Right to abortion: Roe v Wade (1973) and then eroded: Webster v Reproductive Health Services (1989)
Failure to protect rights?
Japanese American citizens were interned in WW2.
Black Americans given fewer rights until 1960s Civil Rights movement and, even now, their relative status is sometimes questionable.
The rights of Guantanamo Bay detainees denied.
Test yourself on Constitutional interpretation
What are landmark rulings?
Which courts were activist?
Give two examples of activist rulings?
Which courts were restraining?
Give two examples of restraining rulings?
Name two cases which have extended rights.
Give two examples where rights were not protected.
Constraints on Supreme Court: Tutorial 3
It cannot commission cases
Congress can change the number of justices (no limit): Roosevelt threatened ‘court packing’ over New Deal.
No power to implement rulings
Its rulings can be overturned by constitutional amendment
The Court can exercise self-restraint (arguably the Roberts Court does)
The President can support ruling (Eisenhower/Brown vs Board) or reject it (Bush Snr/Texas v Johnson)
Rulings are sometimes ignored: eg Engle v Vitale, religious activity occurs in public areas.
Theories of Supreme Court power:
Imperial Judiciary (Glazer): in making landmark rulings the Supreme Court is acting beyond what the Founding Fathers intended.
Judicial tyranny (G.W. Bush): unelected Justices are too powerful (George Bush held this position over the Supreme Court declaring that holding detainees at Guantanamo Bay was unconstitutional)
Judicial minimalism (Roberts Court?): recently the Court has made rulings which only apply to the particular case, rather than trying to promote social change through landmark rulings which have wider implications. Some argue that is true of the Roberts Court.
‘Democratic constitutionalism’ (Roberts court?): some observers believe the Court is making rulings which accord with popular sentiment of the time rather than making controversial rulings out of step with the national mood: thus same sex marriage now constitutional. It involves the Supreme Court cautiously waiting for an issue to gain widespread public support and for the issue to be judged in the lower courts before it hears a relevant case. It is a form of judicial incrementalism, or ‘playing safe’, waiting for the mood of the country to be supportive rather than issuing controversial landmark rulings. Some argue that is evident in the Roberts Court.
Is the Court a political body?
YES:
The Court makes rulings on political issues/social issues
It is unelected (and therefore undemocratic)
There are only 9 Justices (undue power in the hands of 9 people)
It is unrepresentative (though more so than they used to be; now three women; younger than it used to be; greater ethnic mix)
It has outgrown its constitutional role - Glazer: Imperial Judiciary; Bush: Judicial tyranny.
But (No):
It is independent (because of the Separation of Powers in the US)
It can only interpret (not change) the Constitution
It cannot ‘commission’ cases (only responds to cases brought before it. On average it hears 80 cases per year, out of around 7000 cases submitted)
It has no power to enforce its rulings (although there is political/social pressure to accept the rulings
Criticisms of the Supreme Court:
It has too much power (legislates from the bench - Bush's and Glazer's criticism)
It is unelected (although this allows it to make decisions that might not be populist: eg, Roe v Wade; Brown v Board of Topeka)
It reviews too few cases (on average 80-90 per year out of 7000)
It operates in secret
It supported the growth of federal government power in the 1950s and 60s
Justices have tenure for life (and are unrepresentative because of their age)
It has fed a 'rights culture' in the USA
.
Test yourself on constraints and theories of the Supreme Court
Identify three constraints on the Supreme Court
What is the imperial judiciary?
What is judicial tyranny?
What is judicial minimalism?
What is democratic constitutionalism?
Identify three reasons why the Supreme Court can be regarded as a political body.
Identify three reasons why the Supreme Court might not be regarded as a political body.
Identify four criticisms of the Supreme Court.
EXTENSION QUESTIONS:
Explain judicial activism
Explain judicial restraint
Explain judicial restraint
Explain loose constructionism
Explain Strict Constructionism
Explain originalism/textualism
Explain the importance of entrenched rights in the USA.
Examine the process for selecting Supreme Court Justices in the USA.
‘Constitutionally separate, but not outside the political battle.’ Evaluate this description of the role of the US Supreme Court.
To what extent do the constraints on its powers prevent the Supreme Court from performing its functions effectively?
‘Nine politicians in robes.’ Discuss, with reference to the US Supreme Court.
Tutorial 4
The Supreme Court and Federalism
Originally the Supreme Court was limited to reviewing disputes between states and protecting the rights of citizens. This was what the Founding Fathers intended. But the case of Marbury v Madison (1803) brought the Supreme Court into the area of reviewing the US Constitution. Increasingly the Court has become involved in considering disputes between the different branches of government (eg The US v Richard Nixon 1974).
Initially the Supreme Court was supportive of Dual Federalism. But, Johnson’s Great Society programme was supported by the Warren Court in the extension of citizen’s rights (eg Miranda v Arizona).
However, the Rehnquist court was supportive of Nixon and Reagan’s New Federalism (eg Webster v Reproductive Health Services, 1989, eroded the provision of federal, publically-funded abortion facilities).
Justice Scalia called for a return to ‘constitutional dualism’ (Dual Federalism), and in recent years that has been some movement in that direction. The balance of power has swung back towards the states.
For example, in 1997 Printz v US ruled that the federal government could not force the states to carry out checks on people buying guns.
And in 2015 the Supreme Court ruled that Obama’s administration could not impose carbon emission targets on the states as part of his climate change initiative.
Test yourself on the Supreme Court and Federalism
What type of federalism did the Supreme Court initially favour?
How did the Supreme Court support Creative Federalism under Johnson?
What type of federalism did the Rehnquist Court favour?
What did Justice Scalia call for?
Which cases illustrate that the balance of power has swung back towards the states?
The Supreme Court is described in Article III of the Constitution
Originally it was established to resolve disputes between States and to protect citizen’s rights. It first met in 1790.
Marbury v Madison, 1803: was the first time the Court ‘struck down’ an action (of the Federal government) as unconstitutional
McCulloch v Maryland, 1819: was the first time Court ‘struck down’ a state action as unconstitutional and asserted Federal government power over States
It can strike down an Act of Congress or an action of the Executive as unconstitutional.
Note: Marbury vs Madison (1803) is of constitutional significance in the USA. It was the first time the Supreme Court ‘struck down’ an action of the executive as unconstitutional. The newly-elected incoming president, represented by Madison, tried to block the still incumbent president, Adams, from appointing Marbury to the lower courts. The Supreme Court ruled in favour of Madison.
Mucculloch vs Maryland (1819) saw the Supreme Court uphold the right for a national bank, represented by Mucculloch, to open in the State of Maryland, thus establishing that individual States laws and actions could be subject to Supreme Court judicial review.
(You do not need to know the details of these cases but simply that they were the first examples of the Supreme Court making a constitutional ruling on federal government matters (1803) and on State matters (1819) as a result of a judicial review.)
Appointment of Justices
There are 9 Justices (an odd number so that there will always be a majority verdict). Quite often the court is fairly evenly matched between liberal and conservative Justices with one Justice being pivotal. This Justice is known as the ‘swing Justice’ and will change their position from case to case. The current swing Justice is Justice Kennedy.
Justices are appointed by Presidential nomination and Senate ratification under their Advice & Consent powers
Nominees are subject to:
FBI checks;
ABA (the American Bar Association) rating: Clarence Thomas scored low in this, but it is increasingly ignored;
Senate Judiciary Committee interview;
Full Senate ratification/rejection
Note: Justices do not have to be experienced judges. Some have been legal academics. Obama’s nominee, Elena Kagan, was Professor of Law at Harvard University.
In 1967: Johnson appointed Thurgood Marshall as the first black Justice
Republican presidents try to nominate restraining justices(see tutorial 2 below) but, Eisenhower appointed Earl Warren, who became very liberal and his Court was activist – Eisenhower later said it was “the biggest damn fool mistake I ever made”; and Nixon appointed Burger, who also turned out to be liberal.
Opportunities for nomination are rare; there have been more Republican opportunities: Reagan 4; Carter 0; G.W. Bush 2; Obama 2; Trump 1.
In his appointments Obama has tried to redress the issues of descriptive representation in the Court. He has appointed two women: Sonya Sotomayor, who is Hispanic, and Elena Kagan (at 55, the youngest Justice), bringing the total number of female Justices to three (Ruth Ginsburg was a Clinton nominee).
Nominations can be controversial: The Senate rejected Robert Bork in 1987 for being too conservative (Reagan). Obama was unable to secure a replacement to Justice Scalia in his final year in office: the position was left open until Trump appointed Justice Neil Gorsuch.
G.W. Bush’s nominee, John Roberts (Chief Justice) was ratified on a partisan vote in 2005.
Sandra Day O'Connor resigned at roughly the same time as G.W. Bush was looking to fill the Chief Justice post due to the death of William Rehnquist. Bush first nominated Harriet Miers. She had no experience as a judge and she was a personal friend of Bush. Under pressure and intense scrutiny from the Senate Judicial Committee she withdrew (even though she would almost certainly have been ratified on a partisan vote in the Senate). Instead, Bush nominated Samuel Alito, who was nominated on a partisan vote.
Justices have tenure for life “during good behaviour”
No Supreme Court Justice has ever been impeached, although Abe Fortas came close in 1969 over an expenses scandal. He had been tipped as a potential nominee to be the next Chief Justice.
The current Supreme Court (SCOTUS) comprises 9 Justices. There are three women; two Justices are of Jewish heritage, one African American, and one Hispanic. The Chief Justice is Justice Roberts, the Swing Justice, Justice Kennedy; the newest Justice is Justice Gorsuch. At 49 Gorsuch is the youngest, while at 84 Justice Ginsberg is the oldest.
Test yourself on the Supreme Court
Which Article describes the Supreme Court?
What was the importance of Marbury vs Madison (1803)?
What was the importance of Mucculloch vs Maryland (1819)?
How are Justices appointed?
What did Eisenhower say about his nomination of Earl Warren as Chief Justice?
Which Reagan nomination was rejected by the Senate in 1987?
Which Bush nominee withdrew under intense pressure during the appointments process?
Who is the current chief justice?
Constitutional interpretation: tutorial 2
The court has been criticised as “Nine politicians sitting on a bench”, because they have the power to effect social and political change through constitutional interpretation. Such rulings, which have wider social or political implications and bring about social change, are known as landmark rulings.
Judicial activism
Courts which demonstrate judicial activism are those that adhere to loose constructionism. This means that thy interpret the words of the constitution in the light of modern conditions and current reality, reading into the words of the constitution their views of what is best for the country at the present time. They produce landmark rulings the effects of which go beyond the immediate case in question across the wider society. In effect, they engineer social and political change from the bench.
Activist Courts (note: Courts are named after their Chief Justice)
Warren Court: 1953-69
Brown v Education Board of Topeka (1954): overturned Plessy v Ferguson (1896) and declared racial segregation as unconstitutional
Miranda v Arizona (1966) made it a requirement that suspects are read their rights on arrest.
Engel v Vitale (1969) ruled that it was unconstitutional for New York State to impose an official school prayer (under the First Amendment, the freedom of religious worship).
Burger Court: 1969-86
Roe v Wade (1973) made abortion constitutional
Swann v Charlotte-Mecklenburg Board of Education (1971) allowed the bussing of students to improve integration in schools
But
New York v Quarles (1984) eroded the Miranda Laws by introducing a public safety clause to the reading of rights. If the public are in danger the police can take whatever measures, including shooting, before reading rights. (This could be seen as judicial restraint rather than activism because it curtails, rather than extends, rights.)
Judicial restraint
Courts which demonstrate judicial restraint are those who follow the judicial philosophy of strict constructionism and original intent (‘originalism’ or ‘textualism’). This means that they interpret the constitution more literally and make their judgement based on the words of the document with the framer’s intentions in mind. (NOTE: Criticism of 'original intent' are that society is more complex now than the Founding Fathers could imagine and that rights have been extended to groups that the Founding Fathers could not imagine gaining rights: eg, women and African Americans.)
Restraining Courts
Restraining Courts sometimes erode rights extended by activist courts.
Rehnquist Court (1986-2005)
Webster v Reproductive Health Services (1989): allowed public health workers to refuse abortions on conscience and partly eroded Roe v Wade.
Duckworth v Eagan (1989) further eroded the Miranda Laws by stating that the police do not have to read the exact wording of the rights of the arrested.
Bush v Gore (2000): secured G.W. Bush as President
But in Grutter v Bollinger (2003) the Rhenquist Court ruled that the affirmative action admissions policy of the University of Michigan Law School was admissible (so not all the Rhenquist Court rulings were restraining).
Roberts Court (2005-Present) it is arguable whether this Court is retraining or not.
Among the ‘restraining’ rulings are:
In Baze v Rees (2008) the Court ruled that lethal injection permissible. A challenge had been mounted using the eight amendment, i.e. that lethal inject amounted to a ‘cruel and unusual punishment’.
Gonzales v Carhart (2007) banned partial-birth abortions, Kennedy, the ‘swing justice,’ was decisive in this vote which further eroded Roe v Wade
District of Columbia v Heller (2008): ruled that the second amendment prevented the District of Columbia from banning handguns.
Citizens United v Federal Election Commission (2010) used the first amendment (free speech) to overturn the bi-partisan McCain Feingold Act (2002), which limited campaign spending from lobby groups, and allowed lobby groups/businesses to spend as much money as they wished in supporting Congressmen’s campaigns.
However, the Roberts Court has arguably made some more ‘activist’ rulings:
In Hamdam v Rumsfeld (2006): the Roberts Court ruled that detainees had the right to the ‘due process’ of law in Guantanamo Bay
The Roberts Court also supported the Affordable Care Act (Obamacare) twice: eg King v Burwell (2015). (The challenge was a technical one, mounted on the ‘affordability’ of the insurance.)
Similarly in NIFIB v Seleblius (2012) the Affordable Care Act was upheld. (The challenge was on a technicality around Congress’s taxing power.)
In Obergefell v Hodges (2015) the court ruled in favour of same sex marriage as a constitutional right. Kennedy was the swing justice in this decision.
(Arguably no court has been entirely restraining or activist: it depends on the majority verdict of the Justices in the particular case and the pivotal role of the 'swing Justice', currently Kennedy, is vital.)
Protection of rights by the Supreme Court
The inalienable rights of US citizens are entrenched in the first 10 amendments and are protected by the Supreme Court, using its powers of interpretation and judicial review. It is usually activist courts that extend rights through their landmark rulings.
Protection of rights (cases)
Arrest: Miranda v Arizona (1966) and then eroded by Duckworth v Eagan (1984) and New York v Quarles (1989)
Religion: Engel v Vitale (1962) official school prayer not allowed
Freedom of Speech: Texas v Johnson (1989) allowed flag burning
Right to bear arms: District of Columbia v Heller (2008)
Right to abortion: Roe v Wade (1973) and then eroded: Webster v Reproductive Health Services (1989)
Failure to protect rights?
Japanese American citizens were interned in WW2.
Black Americans given fewer rights until 1960s Civil Rights movement and, even now, their relative status is sometimes questionable.
The rights of Guantanamo Bay detainees denied.
Test yourself on Constitutional interpretation
What are landmark rulings?
Which courts were activist?
Give two examples of activist rulings?
Which courts were restraining?
Give two examples of restraining rulings?
Name two cases which have extended rights.
Give two examples where rights were not protected.
Constraints on Supreme Court: Tutorial 3
It cannot commission cases
Congress can change the number of justices (no limit): Roosevelt threatened ‘court packing’ over New Deal.
No power to implement rulings
Its rulings can be overturned by constitutional amendment
The Court can exercise self-restraint (arguably the Roberts Court does)
The President can support ruling (Eisenhower/Brown vs Board) or reject it (Bush Snr/Texas v Johnson)
Rulings are sometimes ignored: eg Engle v Vitale, religious activity occurs in public areas.
Theories of Supreme Court power:
Imperial Judiciary (Glazer): in making landmark rulings the Supreme Court is acting beyond what the Founding Fathers intended.
Judicial tyranny (G.W. Bush): unelected Justices are too powerful (George Bush held this position over the Supreme Court declaring that holding detainees at Guantanamo Bay was unconstitutional)
Judicial minimalism (Roberts Court?): recently the Court has made rulings which only apply to the particular case, rather than trying to promote social change through landmark rulings which have wider implications. Some argue that is true of the Roberts Court.
‘Democratic constitutionalism’ (Roberts court?): some observers believe the Court is making rulings which accord with popular sentiment of the time rather than making controversial rulings out of step with the national mood: thus same sex marriage now constitutional. It involves the Supreme Court cautiously waiting for an issue to gain widespread public support and for the issue to be judged in the lower courts before it hears a relevant case. It is a form of judicial incrementalism, or ‘playing safe’, waiting for the mood of the country to be supportive rather than issuing controversial landmark rulings. Some argue that is evident in the Roberts Court.
Is the Court a political body?
YES:
The Court makes rulings on political issues/social issues
It is unelected (and therefore undemocratic)
There are only 9 Justices (undue power in the hands of 9 people)
It is unrepresentative (though more so than they used to be; now three women; younger than it used to be; greater ethnic mix)
It has outgrown its constitutional role - Glazer: Imperial Judiciary; Bush: Judicial tyranny.
But (No):
It is independent (because of the Separation of Powers in the US)
It can only interpret (not change) the Constitution
It cannot ‘commission’ cases (only responds to cases brought before it. On average it hears 80 cases per year, out of around 7000 cases submitted)
It has no power to enforce its rulings (although there is political/social pressure to accept the rulings
Criticisms of the Supreme Court:
It has too much power (legislates from the bench - Bush's and Glazer's criticism)
It is unelected (although this allows it to make decisions that might not be populist: eg, Roe v Wade; Brown v Board of Topeka)
It reviews too few cases (on average 80-90 per year out of 7000)
It operates in secret
It supported the growth of federal government power in the 1950s and 60s
Justices have tenure for life (and are unrepresentative because of their age)
It has fed a 'rights culture' in the USA
.
Test yourself on constraints and theories of the Supreme Court
Identify three constraints on the Supreme Court
What is the imperial judiciary?
What is judicial tyranny?
What is judicial minimalism?
What is democratic constitutionalism?
Identify three reasons why the Supreme Court can be regarded as a political body.
Identify three reasons why the Supreme Court might not be regarded as a political body.
Identify four criticisms of the Supreme Court.
EXTENSION QUESTIONS:
Explain judicial activism
Explain judicial restraint
Explain judicial restraint
Explain loose constructionism
Explain Strict Constructionism
Explain originalism/textualism
Explain the importance of entrenched rights in the USA.
Examine the process for selecting Supreme Court Justices in the USA.
‘Constitutionally separate, but not outside the political battle.’ Evaluate this description of the role of the US Supreme Court.
To what extent do the constraints on its powers prevent the Supreme Court from performing its functions effectively?
‘Nine politicians in robes.’ Discuss, with reference to the US Supreme Court.
Tutorial 4
The Supreme Court and Federalism
Originally the Supreme Court was limited to reviewing disputes between states and protecting the rights of citizens. This was what the Founding Fathers intended. But the case of Marbury v Madison (1803) brought the Supreme Court into the area of reviewing the US Constitution. Increasingly the Court has become involved in considering disputes between the different branches of government (eg The US v Richard Nixon 1974).
Initially the Supreme Court was supportive of Dual Federalism. But, Johnson’s Great Society programme was supported by the Warren Court in the extension of citizen’s rights (eg Miranda v Arizona).
However, the Rehnquist court was supportive of Nixon and Reagan’s New Federalism (eg Webster v Reproductive Health Services, 1989, eroded the provision of federal, publically-funded abortion facilities).
Justice Scalia called for a return to ‘constitutional dualism’ (Dual Federalism), and in recent years that has been some movement in that direction. The balance of power has swung back towards the states.
For example, in 1997 Printz v US ruled that the federal government could not force the states to carry out checks on people buying guns.
And in 2015 the Supreme Court ruled that Obama’s administration could not impose carbon emission targets on the states as part of his climate change initiative.
Test yourself on the Supreme Court and Federalism
What type of federalism did the Supreme Court initially favour?
How did the Supreme Court support Creative Federalism under Johnson?
What type of federalism did the Rehnquist Court favour?
What did Justice Scalia call for?
Which cases illustrate that the balance of power has swung back towards the states?