Chapter 4 - 3/7 - The Supreme Court and public policy Flashcards
What did the Founding Fathers do to try and ensure the judiciary remained free from political pressure?
- Life tenure
- Security of salary
What is an activist court?
One that sees itself as leading the way in the reform of US society.
How did Professor Lino Graglia define judicial activism?
‘the practice by judges of disallowing policy…that the Constitution does not clearly prohibit’
When was the case of ‘Brown v Board of Education of Topeka’?
1954
What did the case of ‘Brown v Board of Education of Topeka’ do?
Outlawed racial segregation in public schools.
What is the case of ‘Brown v Board of Education of Topeka’ seen as an example of?
Judicial activism
When was ‘Roe v Wade’?
1973
What did ‘Roe v Wade’ do?
Declared a woman’s right to an abortion to be a constitutionally protected right.
What is the case of ‘Roe v Wade’ an example of?
Judicial activism
How do activist judges view the court in relation to the other branches of state?
As an equal partner.
When was ‘Obergefell v Hodges’?
2015
What did ‘Obergefell v Hodges’ do?
Legalised same-sex marriage.
What is ‘Obergefell v Hodges’ an example of?
Judicial activism
How did T. R. van Geel describe the attitude of activist judges?
“I’m in charge, and I will seek to be a player equal to the other branches in shaping policy”
What is meant by Imperial Judiciary?
The view that the courts have become too powerful through their powers of judicial review and impact on public policy.
How did Kermit Roosevelt describe critics of judicial activism in 2006?
‘People call the Court activist because they disagree with its decisions.’
What is meant by judicial restraint?
When the Court is more inclined to accept the views and actions of elected officials.
What is ‘stare decisis’?
A legal principle that judges should follow past precedents as a guide to rulings - associated with judicial restraint rather than activism.
How do judges that practice judicial restraint see themselves?
As deferential to the legislature and the executive as they are not accountable to the voters.
What is the criticism of judges who exercise restraint?
Taking a too narrow focus of a text that is over two centuries old limits the meaning and interpretations.
What is the criticism of judicial activism?
- Their interpretations make them law makers.
- The updating of the Constitution by activism only updates it with the views of the Justices’ and not the country.
- Changes should be decided by Congress, not the courts.
What is public policy?
The laws, regulations, and actions of the government that seek to make changes to society.
What is the Supreme Court’s impact on public policy?
- Uphold existing policy
- Remove existing policy
- Establish new policy
Give an example of the Supreme Court upholding existing public policy.
Trump v Hawaii
