Is the Supreme Court a Judicial or Political Institution? Flashcards
Why is the Supreme Court a political institution? (2 reasons)
1) Through judicial review
2) Through the appointments process
Why is a Supreme Court a Judicial Institution?
1) They have life tenure, are unelected and are unlikely to be impeached.
2) The practice of Judicial Restraint.
How can the Supreme Court act politically in Judicial Reciew?
The Supreme Court can act politically by striking down the legislation, policies and actions of the other branches of government, which could mean that the Supreme Court has a quasi-legislative role.
United States v. Lopez (1995) – held that the federal government’s Gun-Free School Zones Act (1994) was unconstitutional because this went beyond Congress’s “Commerce Clause” powers.
Boumediene v Bush (2008) – held Bush’s Military Commissions Act (2006) to be unconstitutional as it infringed on habeas corpus.
District of Columbia v. Heller (2008) – held that the District of Columbia’s firearms ban was unconstitutional as it infringed on the 2nd Amendment (right to bear arms).
United States v. Windsor (2013) – held that the Defence of Marriage Act (1996), which restricted marriage to being between one man and one woman, was unconstitutional as it infringed on the Due Process clause of the 5th Amendment.
Through interpreting the constitution, how can the Supreme Court have a political role? (2 reasons)
1) They can give branches of government more power - this can be seen as political.
Gonzales v. Raich (2005) - held that congress can criminalise the production of cannabis under the commerce clause.
United States v. Comstock (2010) - held that it is necessary and proper for the federal government to require the sectioning of mentally unwell individuals in federal custody.
2) They can use their power for the protection of rights - which can be seen as constitutional.
Obergefell v. Hodges (2015) - held that the 14th amendment protected the right to a same-sex marriage.
What is the significance of the Judicial Review causing the Supreme Court to be a political institution?
Goes against the idea of judicial restraint as the judiciary is not leaving key political decisions to other branches.
It could lead to the Supreme Court acting in a tyrannical manner.
Could be seen as lacking a constitutional mandate and lacking legitimacy because the Supreme Court gave themselves this power in Marbury v. Madison (1803)
How can the President cause the Supreme Court to act politically through the appointments process?
The President nominates Supreme Court Justices, which politicises the appointments process because he will nominate a justice who is ideologically similar to them.
In March 2016, Obama nominated the moderate liberal Merrick
Garland to the Supreme Court.
During his Presidency, Bush nominated conservatives John Roberts and Samuel Alito to the Supreme Court
Trump nominated Amy Coney-Barrett, Bret Kavanaugh and Neil Gorsuch. All pretty right-wing nominations.
How can the Senate cause the Supreme Court to act politically through the appointments process?
The Senate confirms Supreme Court Justices, which politicises the appointments process because the party in control of the Senate will be able to appoint judges who are ideologically similar to them.
In 2016, Republicans in the Senate said that they won’t consent to any of Obama’s nominees, including Merrick Garland.
How can Pressure Groups cause the Supreme Court to act politically through the appointments process?
Pressure groups also have influence over appointments.
When President Bush nominated John Roberts in 2005, almost 70 groups gave written or oral testimonies
What is the significance of the appointments process in making the Supreme Court political?
Reduces the mandate of sitting judges, which could reduce the legitimacy and authority of their decisions.
Could reduce public confidence in the court, causing apathy.
How does life tenure and the unelected nature cause the supreme court to act judicially?
Being unelected and having life tenure means that judges can act judicially by making independently-minded decisions as they do not have to please the electorate or wealthy donors.
In Texas v. Johnson (1989), the court was independently-minded because it ignored public opinion by holding that forbidding the burning of the US flag was an unconstitutional restriction on freedom of speech under the 1st Amendment (1791).
In Obergefell v. Hodges (2015), the court legalised same-sex marriage, despite large numbers of mainly southern, religious voters who were strongly against same-sex marriage, therefore the court was independently-minded.
how has low chance of impeachment caused justices to act judicially?
A Supreme Court justice has never been impeached, therefore judges can act judicially by making independently-minded decisions without the fear of impeachment.
Supreme Court Justice Samuel Chase was impeached in 1804, however this was for partisan reasons, therefore he was acquitted at his trial.
What is the significance of being unelected, life tenure and unlikelihood of being impeached in making the SC a judicial institution?
Reduces the influence of pressure groups on decisions, so helps to prevent tyranny of the minority and elitism.
Could increase the legitimacy and authority of decisions.
Means that decisions are better for the overall long term prospects of the US.
What is the rebuttal of being unelected, life tenure and unlikelihood of being impeached causing the SC to be a judicial institution? (2 reasons)
1) Most judges tend to follow public opinions, meaning they are not acting independently.
Planned Parenthood v. Casey (1992) - followed public opinion by deciding that the right to an abortion did exist but it could be subjected to reasonable limitations by state legislature.
2) Pressure Groups are able to influence the court which reduces the chance of the courts acting independently minded.
In the 2012-13 Session, 1001 amicus curiae briefs were filed for 73 cases, with 96% of cases having at least 1 brief submitted.
Grutter v. Bollinger (2003) amicus curiae briefs were directly referenced in the majority opinion.
How does judicial restraint cause the Supreme Court to act Judicially?
Judicial restraint – the idea that judges should allow the other branches of government to make social changes rather than promoting desirable social ends themselves. Judges should also follow the precedents set by previous court decisions.
Minnesota v. Carter (1998) – held that the 4th Amendment (1791), which protects against unreasonable searches and seizures, does not apply to short-term guests in a residency.
What is the significance of Judicial Restraint in securing the SC to be a Judicial Institution?
Leaves key decisions to elected bodies, which promotes representative democracy and increases the mandate and legitimacy of these decisions.
