Supreme Court and Public Policy

Question 1

Marriage equality

Answer 1

The Supreme Court has ruled on marriage equality in America. In the 2013 United States v Windsor case the court ruled the Defense of Marriage Act, which allowed states to refuse to recognise same-sex marriage, as unconstitutional. In the 2015 Obergefell v Hodges case, the Supreme Court ruled that a ban on same-sex marriage was unconstitutional under the 14th Amendment’s equal protection of all citizens’ life and liberty rights.

Question 2

Abortion

Answer 2

The Supreme Court has ruled on the right to abortion for women. The 1973 Roe v Wade case ruled that women have the right to an abortion under the 14th Amendment right to ‘privacy’. The court ruled that women should have the freedom to choose to have an abortion. The 2007 Gonzales v Carhart case ruled to uphold the 2003 Partial-Birth Abortion Ban Act which banned the procedure of intact dilation and extraction used in later abortions. In 2022, the Dobbes v Jackson ruling overruled Roe v Wade and allowed states to make their own abortion laws.

Question 3

Campaign spending

Answer 3

Recent cases have removed some restrictions on election campaign spending.
In the 2010 Citizens United v FEC case, the Supreme Court removed laws that prevented businesses from funding political advertising because the laws were considered to violate First Amendment rights to freedom of speech. In the 2014 McCutcheon v FEC case, the limit on individual contributions for election candidates of $48,600 was removed because it was ruled to violate the First Amendment right to free speech.

Question 4

Judicial activism

Answer 4

Judicial activist judges make rulings which reform US society and change public policy rather than defer decisions to elected officials. Judicial activist courts will more regularly use judicial review to overrule actions of the executive and Congress.
Judicial activism is linked to the liberal view that the Constitution is flexible and can be adapted. Judicial activism enables the Constitution to evolve as society changes without needing to formally amend the Constitution.

Question 5

Strengths of judicial activism

Answer 5

Judicial activism brings about important social changes and developments. Judicial activists believe that the Founding Fathers of the Constitution expected the Court to actively interpret the Constitution to meet ongoing changes in society. The Burger Court of 1969-1986 acted with judicial activism, giving women the right to have an abortion in the 1973 Roe v Wade case.

Question 6

Criticisms of judicial activism

Answer 6

A judicially activist court makes laws when its role should be limited to interpreting the law. The law should be made by the elected legislative and executive rather than the unelected Supreme Court. Judges are experts in the law but not in the policy areas they make judgements on, and so should not make the law.

Question 7

Judicial restraint

Answer 7

Judicial restraint is linked to the conservative and strict constructionist view of interpreting the Constitution literally.
Judicial restraint is when judges rarely use judicial review to overrule actions by the executive or Congress. Under judicial restraint, judges will often defer public policy decisions to elected officials. Judicial restraint exists when courts base most decisions on precedent from previous court rulings. The Rehnquist Court of 1986-2005 acted with judicial restraint.

Question 8

Criticisms of judicial restraint

Answer 8

Judicial restraint prevents important social change from taking place. Precedent is followed from rulings which are out of date with modern society. The Constitution should change to meet ongoing developments in society. The 1896 Plessy v Ferguson case ruled with judicial restraint but denied basic rights to African American citizens by upholding racial segregation.