ETVT that SCTOUS has too much power (30) Flashcards
Judicial review - Too much power
Judicial review is the power of the supreme court to declare legislative and executive actions as unconstitutional.
Self given power under Marbury v Madison 1803 and Fletcher v Peck 1810, this is not a power that was given to them in the constitution, therefore there are questions over the legitimacy of the supreme court to have such power.
They can go against elected bodies who have a mandate, the supreme court have no mandate, congress is elected in by the electorate whereas the supreme court is appointed by a small minority of political figures.
In 1990-99 they declared 23 federal laws unconstitutional, and 15 between 2010-19.
Judicial review - Not too much power
Firstly they cannot initiate cases themselves and must wait for permission, parties who are not satisfied with a lower court decision can petition the Supreme court to hear their case, they ask the court to grant a writ of certiorari, usually the court will only here cases that are of national significance.
Furthermore, the power of Judicial Review is a important check on the powers of the executive and the legislative, in order to make sure they stay within the rules of the constitution.
For example… NLRB v Canning 2014, Trump v Vance 2018, but other cases also relevant.
Legilsating from the bench is a bad thing
SOCTUS is a unelected court and in recent years they have been accused of being more judicially activist, a court that leads the way in making policy and US societal reform.
Obergefell v Hodges 2015, Dobbs v Jackson 2022/Roe v Wade 1973, DC v Heller 2008, Citizens United v FEC 2010
Unelected body, significant power in the hands of 9 justices. They have no mandate to legislate and create policy the way that they are able to do.
Constitution is vague so judges have to use a living constitution approach
Living constitution as founding fathers intended, a narrow focus on the text alone limits the meaning and interpretation of the document written over two centuries ago.
The constitution is a intentionally vague document and is open for interpretation from judges, therefore there will be inevitable new rights and interpretations, this is so it is able to evolve.
SCOTUS has a very important role at protecting rights in the US, and therefore is not too powerful.
Obergefell v Hodges 2015, 14th amendment protects same sex couples, Kennedy argued that the founding fathers did not know or understand society as it was today and therefore intrusted justices to protect the right of ‘liberty’ how it would mean in that time.
Snyder v Phelps 2011, Laurence v Texas 2003 and any other example of SCOTUS taking Important progressive and social change that protects and expands on people’s rights.
Checks from other parts of government are poor
They act as checks on the other branches of government but they themselves receive very little checks, they cannot be held accountable very easily.
Whilst congressmen and Presidents can be voted out of office through national elections, other than impeachment there is very little power to remove supreme court justices. They cannot be held accountable for their actions.
Impeachment is a power of congress but no SCOTUS justice has ever been impeached by the senate before other than Samuel Chase who was acquitted by the Senate.
Checks from other branches are good
Appointments process is a check on the Judiciary.
The senate has rejected 12 nominations to the Supreme court in its history.
ABA gives a rating depending on the level of qualification
Senate judiciary committee conducts heavy scrutiny into the candidates. The FBI for example investigated heavily into sexual harassment claims in relation to Brett Kavanaugh, Thomas was questioned by the committee on accusations of this.
Nixon backed away from Mildred Lillie in 1971 when she was rated ‘not qualified’.
Detailed scrutiny from the committee asses judicial suitability, Harriet Miers withdrew in 2005 when her answers were described as ‘insulting’.
Checks and nominations from elected individuals and bodies mean that they do not have too much power.
