Evaluate the extent to which the Supreme Court can rightly be described as a 'third house of the legislature.' Flashcards
Introduction - Themes
- Judicial Activism
- Partisanship
- Separation of Powers
Introduction - Argument
It would be right to describe the Supreme Court as the ‘third house of the legislature’
Judicial - Judicial Restraint - Point
Some argue that the Supreme Court should not be considered as a ‘third house of the legislature’ as it often sides with the President and Congress
Judicial - Judicial Restraint - Examples
- The Merrill v Milligan case currently in the SC looks as though it will be an example of judicial restraint. Justice Keegan noted that this was a ‘slam dunk’
- In the case of the NFIB v Sebelius in 2012, the Court ruled to enact most provisions in the Affordable Care Act. This ruling meant that Obamacare could be implemented across the country
Legislature - Judicial Activism - Point
It is more often that that Supreme Court will demonstrate judicial activism - this is why they can be considered the third legislature
Legislature - Judicial Activism - Examples
- The 2020 Biden v OSHA case meant that the mandate which Biden had issue requiring vaccines for businesses with over 100 employees was overturned by the Supreme Court
- The Dobbs v Jackson case in June 2022 directly contrasted what the pro-chocie Democrats and President wanted. This stopped the federal right to abortion, and since 13 states have banned abortion
Judicial - Partisanship - Point
The Supreme Court is meant to be an independent and neutral institution, only interpreting the Constitution. This means that they are not as partisan as Congress or the Executive
Judicial - Partisanship - Examples
- For the majority of cases, it is a unanimous vote in the Court which means that all of the justices regardless of their background support one side
- The Caetano v Massachusetts case in 2016 is an example of uniamous rule. The Court ruled that Massachsetts’ law prohibiting the posession of stun guns was against the 2nd Amendment
Legislature - Partisanship - Point
It would be wildly incorrect to assume there are not divisions within the Supreme Court - there are divisions between originalist and contructionalists. This means there is still a massive partisanship within the Supreme Court
Legislature - Partisanship - Examples
- The Bucklew v Precythe case in 2019 which concerned the constitutionality of Missouri’s use of lethal injection under the 8th Amendment was a 5-4 split ruling between the conservatives and the liberal judges
- Clarence Thomas is currently under investigation after it was found a Republican party donor had been paying for his son’s school fees
Judicial - Separation of Powers - Point
The US Constitution sets up the precedent that there will be three completely separate branches of government, each with their own very clear set of powers. One of the Supreme Court’s powers is not to legislate
Judicial - Separation of Powers - Examples
- The Constitution sates in Article III that ‘all judicial power shall be vested in one supreme court’
- Congress remains the institution with the main legislative power. After the Dobbs v Jackson ruling it was feared that Obergefell v Hodger was next, so Congress passed the Respect for Marriage Act to hopefully stop this
Legislature - Separation of Powers - Point
The appointment process of a Supreme Court judge as well as the fact they set judicial precedent from the Constitution means that the separation of powers is not alway adhered to
Legislature - Separation of Powers - Examples
- In order to become a Supreme Court Justice they must be first nominated by the President and confirmed by the Senate. This means that both branches are massively involved in the selection process
- The 2018 Carpenter v US case meant that the SC ruled that the government’s warrantless collection of suspect’s cell phone location violated the 4th Amendment - this meant Congress had to pass the Geolocation Privacy and Surveillance Act in 2019
