Evaluate the extent to which the Supreme Court is now an imperial judiciary Flashcards
intro
Supreme Court was created alongside Congress, created in order to uphold the constitution and overall rights. However, since Marbury v Madison and the creation of judicial review, Supreme Court has become overly powerful.
Alexander Hamilton - “the least dangerous branch”
Thomas Jefferson - “despotic”
LOA - Supreme Court is incredibly powerful, but this is not necessarily a negative
para 1 theme
public policy
para 2 theme
unelectable and unaccountable
para 3 theme
independence
para 1 - public policy
- Public policy is simply the policy created by the federal government, whether by creating new laws or through executive actions. There are three ways in which the SC can influence public policy
- Basically creating new policy e.g. - Citizens United v FEC (2010) allowed for the development of Super-PACs, which would previously have been impossible due to the Bipartisan Campaign reform act. In effect, nine unelected judges had a substantial role not only in shaping the policy surrounding elections, but also in overturning a law created elected by representatives.
- The court can have a huge impact by upholding legislation. In two healthcare cases, the Court ruled in favour of Obamacare. This allowed the continued enforcement of this legislation, but also lent a degree of sovereignty to the law.
The court can have an impact in choosing not to hear a case. In doing so, if the case has been heard by a lower court, then the ruling of the court stands. In 2018, the SC refused to hear the case of Planned Parenthood of Arkansas v Jegley, which challenged Arkansas’ strict regulation of medically-induced abortion which made it very difficult to obtain the ‘abortion pill’ and would have left the state with one abortion provided. In refusing to hear the case, the SC allowed this law to come into force in Arkansas.
para 1 - however
- The Supreme Court is incredibly limited in their actual power to hear cases. They can only rule laws as constitutional or unconstitutional. Also, given judicial restraint, the Court only takes between 60 and 100 cases of the average 8,000 they receive a year. This number has been nearer to the lower numbers since Roberts took chief justice in 2005. Given such a small number of cases, it would be naïve to say that they have a large number of influence on all areas of policy
Judicial restraint plays off of precedence and ‘stare decisis’; (to stand by which is decided). if a court has previously made a judgement on something, the court will avoid returning to it, explaining why issues like gay marriage and abortion have not returned to the court despite their controversial nature.
para 1 - rebuttal
- Despite judicial restraint being present, judicial activism has seemed to bleed through more, which is the approach of making decisions with the intention of promoting desirable social ends and shaping public policy, without needing to defer to the other branches of government or precedent.
- Furthermore, controversial issues do still come through. Abortion will be returning to the court, this time a 6-3 conservative swing, suggesting the ideology of the court has once again influenced their case selection.
Judges even acknowledge the power they have cases, with Sonia Sotomayor saying that ‘the court is where policy is made’.
- Furthermore, controversial issues do still come through. Abortion will be returning to the court, this time a 6-3 conservative swing, suggesting the ideology of the court has once again influenced their case selection.
para 2 - unelectable and unaccountable
- The judges are unelected and thus are unaccountable for their actions and decisions.
- The appointment process of the Judges can also show that too much power remains with the court and also the executive’s influence over the courts as it is the president that suggest appointees. The court therefore becomes too political which directly influences their power. The three appointments that Trump was able to achieve in office made the court powerful in the sense of conservatism and originalism which will impact its rulings for years to come due to the life tenures of its justices.
This links back to the idea that these unelected officials basically possess sovereignty, due to the constitution’s sovereignty, and possess a great deal of power over the elected officials in congress. Acts like DAPA, the BCRA and more have all found themselves being overruled by unelected officials
- The appointment process of the Judges can also show that too much power remains with the court and also the executive’s influence over the courts as it is the president that suggest appointees. The court therefore becomes too political which directly influences their power. The three appointments that Trump was able to achieve in office made the court powerful in the sense of conservatism and originalism which will impact its rulings for years to come due to the life tenures of its justices.
para 2 - however
Although the court can rule on cases, they cannot enforce them. The Supreme Court relies upon the other two branches to enforce their rulings. This can limit their power as although they can make a decision, that is all they can do; their rulings may not always be acted upon. This happened in the case of Brown v Board of Education, which was made in 1954 but wasn’t acted upon until 1964.
para 2 - rebuttal
Furthermore, if the SC rules anything unconstitutional, this law immediately becomes ineffective, and the only way to overcome this is an amendment. This has only happened once, with the 16th amendment. The SC had struck down the Congressional Income Tax Act of 1894 in the case of Pollock v Farmers’ Loan & Trust Co. To enable Congress to raise income tax, they added the 16th amendment to the Constitution. Given the state of partisanship and polarisation, this is neon impossible now, so the Supreme Court rulings are in effect final.
para 3 - independence
- Judicial independence is so strongly ensured that the Supreme Court is basically free to act however they want.
- SOPs - The SC has its own power in article III of the constitution
- Life Tenure - justices leave the SC only through death, retirement or impeachment
- Protected salary - the constitution says that justices ‘shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office’. In 2018, this was $255,300.
The fact is that justices have such independence that they can act however they want, being exempt from public influence. Brett Kavanaugh was a highly controversial appointment given previous allegation of sexual assault against him, but despite this, he remains in the court and is free to act on any case he wants
para 3 - however
- Furthermore, justices can be impeached if deemed to be exercising their power too excessively.
The court must explain their reasoning. Firstly, it must be drawn form the constitution. The majority opinion outlines the ruling to be upheld and why the verdict was reached; the dissenting opinion outlines the reasons that some justices voted the other way. This is then made public, with the Supreme Court publishing their judgements online. This means their judgement can be seen by anyone and so must be reasonable.
para 3 - rebuttal
- A justice has only been impeached once, Samuel Chase in 1805. He was impeached on the grounds of letting his ideology and partisan beliefs cloud his rulings, but was acquitted by the Supreme Court, so this power although still present is rather negligible.
The different ways in which the court can influence cases (living constitution vs originalism) and the vagueness of the constitution, means that the court can interpret the constitution very differently and can draw reasoning from a numerous amount of places, especially those who adopt the living constitution method (RBG and Sotomayor)
