4.3 The Supreme Court and public policy

Question 1

DC v Heller 2008

Answer 1

• 2nd amendment case - overturning a ban on handguns in the home in Washington DC

Question 2

Citizens United v FEC 2010

Answer 2

• 1st amendment case - overturning public policy regulating money in elections, declaring the parts of the Bipartisan Campaign Reform Act were unconstitutional

Question 3

NFIB v Sebelius 2012

Answer 3

• States’ rights/interstate commerce clause and the 16th amendment right of federal govt to impose income tax, which upheld a major piece of public policy in the ACA

Question 4

Shelby County v Holder 2013

Answer 4

• Overturned longstanding public policy of Voting Rights Act 1965 - arguing that there was no case for it under the 14th amendment, equal treatment, thus protecting states’ rights to decide election laws

Question 5

Riley v California 2014

Answer 5

• 4th amendment case that unanimously protected people from unwarranted police searches of their mobile phone

Question 6

Obergefell v Hodges 2015

Answer 6

• Created a constitutional guarantee of the right to gay marriage under the 14th amendment, covering both the due process and equal treatment clauses, forcing many states to change their public policy

Question 7

Whole Woman’s Health v Hellerstedt 2016

Answer 7

• Overturned Texas state regulations on abortions (required heath compliance leading to the closure of most Texas clinics) on grounds of 14th amendment restrictions on equal protection, placing an undue burden on women

Question 8

How does the Supreme Court impact on public policy?

Answer 8

• Removes existing policy - Citizens United v FEC 2010, Shelby County v Holder 2013
• Upholds existing policy - NFIB v Sebelius 2012, King v Burwell 2015
• Establishes new policy - Obergefell v Hodges 2015

Question 9

Define judicial activism

Answer 9

• Approach to judicial decision-making -
• Holds that a justice should use their position to promote desirable social ends by overturning political institutions or court precedent

Question 10

2 key components of judicial activism

Answer 10

• Justices use their own views and values - to achieve their own social or political goals
• Activism involves the Court overturning other political institutions or the precedent of previous courts

Question 11

When is judicial activism most forceful?

Answer 11

• When used by the majority on the Court - is most easily seen over a series of cases where justices consistently appear to be attempting to challenge political institutions

May also reflect itself in the approach of an individual justice who is associated w/ a particular stance - use to challenge political institutions

Question 12

With which court is judicial activism associated?

Answer 12

• The Warren Court 1953-69 - gave a series of rulings that promoted civil rights - typically at the expense of state law

Question 13

Civil rights agenda of the Warren Court

Answer 13

Seen in cases such as:

• Brown v Board of Education 1954
• Miranda v Arizona 1966

Question 14

Which court has used conservative judicial activism?

Answer 14

Current one - Roberts Court:

• Has consistently ruled against campaign finance regulations - e.g., in the Citizens United and McCutcheon cases
• Uses its interpretation of the 1st amendment to promote conservative judicial activism

Question 15

Define judicial restraint

Answer 15

• Approach to judicial decision-making
• Opposite of judicial activism
• Holds that a justice should defer to the executive and legislative branches, which are politically accountable to the people
• Should put great stress on the principle established in previous court decisions

Justices may or may not have a personal bias - but their approach to judicial interpretation is to limit the extent to which they overturn political bodies.

Question 16

What does judicial restraint suggest?

Answer 16

• That political institutions such as Congress should only be overturned if there is clear evidence that the Constitution has been broken
• The judicial philosophy limits the impact the Supreme Court has on public

Question 17

Why has judicial activism been criticised?

Answer 17

• For giving justices excessive power over elected politicians
• Restraint arguably more suited to a democratic society - it restricts likelihood of unelected judges denying a majority view as expressed by elected politicians

Activism also suggests a political agenda - courts therefore can abuse their power - using the vagueness of the Constitution to reach their own personal goals

Question 18

Why is Chief Justice Roberts critical of the public policy role of the Supreme Court?

Answer 18

• Critical of the Obergefell case - argued the people of a State are free to expand marriage to include same-sex couples, or retain the historic definition
• Criticised the majority opinion in the Obergefell case - who closed the debate and enacted their own vision of marriage as a matter of constitutional law
• Says it steals the issue from the people - which will make a dramatic social change

Question 19

Why have conservatives been particularly critical of judicial activism?

Answer 19

• Because of the way in which it has been used by the Court to ‘find’ new rights - such as abortion and gay rights - in the Constitution

Question 20

What do supporters of judicial activism often base their argument on?

Answer 20

• The need to protect civil liberties, based on the idea that the Constitution has to evolve with the changing values of modern society
• In some cases - the Court has enhanced civil liberties that some would see as fundamental

Question 21

Why has judicial restraint been attacked?

Answer 21

• It could be seen as a dereliction of duty - in deferring to elected politicians, the SCOTUS if failing to enforce the Constitution
• The Constitution isn’t based on the desire for majoritarian democracy to prevail - instead prioritises checks and balances and protection of individual liberty

If restrained - court may fail to protect such principles

Question 22

Conservatives view of Chief Justice Roberts

Answer 22

• Supporting his application of the Constitution in his majority view in Obergefell - nonetheless enraged by his apparent restraint in the ACA case
• He was apparently reluctant to overturn the flagship policy of the elected president

Question 23

What do the different reactions from conservatives to different rulings by Roberts show?

Answer 23

Shows that support or criticism for 1 approach over the other isn’t necessarily based on some fundamental argument about these judicial philosophies

• It’s often a reflection of whether activism or restraint gives an individual what they want - based on their own ideology - a conservative may criticise the Court for its liberal activism in Obergefell but then support conservative activism when it was used in cases such as Citizens United