The Supreme Court and public policy.

Question 1

Judicial Activism

Answer 1

Judges should use their powers to improve society by overturning decisions from other branches. This is the idea that judges are policy malers and judicial decision making is used to promote socially desirable outcomes.

Question 2

Judicial Restraint

Answer 2

This is when judges defer to the executive and legislative branches who are elected and let their decisions stand. It is the idea that judges should leave policy-making to other branches and not overrule as they have more legitimacy than an unelected supreme court.

Question 3

arguments for judicial activism

Answer 3

1. The SCOTUS is one of the three branches and the principle of checks and balances requires it to stand up to the other branches.
2. The SCOTUS should enforce the constitution whether or not it contradicts elected politicians
3. The SCOTUS in the US is clearly not neutral and we should not pretned that it is, or is even possible

Question 4

arguments for Judicial Restraint

Answer 4

1. Elected Congress and the President have more legitimacy thrrough their electoral mandate; an unelected Supreme Court should not overrule them.
2. The rule of law requires judges to be neutral and not have their policy agenda

Question 5

Originalism

Answer 5

Judges should take decisions based on what the founding fathers meant and intended. The meaning of the constitution is fixed, it does not change over time. The founding fathers wrote the constitution with a particular intention and it should be applied and interpreted by staying as close as possible to how the founding fathers originally intended it to be. If we want it to be different, we should simply pass a law or an amendment and not say that the text of the constitution means something else than it originally did.

Question 6

Living constitution

Answer 6

Judges should not use the constitution as a document that can evolve to suit modern society, it matters less what the founding fathers intended, more what is relevant now. Living constitution is the idea that the evolution of our understanding of a certain topic should be used as the basis for interpretation in the supreme court because morals and customs change over time, the current meaning of the constitution is the most important. This differs from originalism as it believes that the constitution should evolve.

Question 7

Arguments for originalism

Answer 7

1. Originalism provides a clear and stable framework for interpreting the constitution. It also ensures that the meaning of the constitution remains constant and blocks subjective interpretations that produce legal precedents or judicial decisions simply based on the current political climate.
2. The constitution was written by the Founding Fathers with a particular aim, until it is amended by congress, judges should not use their own views to change its meaning, but instead use it as orignally intended
3. It should be elected politicians, not elected judges that adapt the constitution by using amendments for example

Question 8

Arguments for Living Constitution

Answer 8

1. It allows for the interpretation and adaptation of the constitution to changing societal values and circumstances. It grants the constitution flexibility which allows it to evolve to meet current demands and protect ‘new’ rights. Times have changed and the constitution should adapt to stay relevant
2. It is impossible to know what the FF really meant and trying to do so ends up using personal views as well
3. The FF were vague on purpose, to allow for re-interpretation.