The Supreme Court and public policy

Question 1

why is the supreme court controversial

Answer 1

the judiciary is an unelected and unaccountable which means that they can overturn actions of directly elected officials in either the legislature or the executive

Question 2

what does judicial activism mean

Answer 2

justices should use their position to promote desirable social outcomes from their rulings
activist judges tend to be liberal or loose constructionism and an activist court is one that sees itself as leading the way in the reform of US society

Question 3

how does judicial activism intertwine with the exec and leg

Answer 3

judicial activism sees itself as an equal partner with the branches.

Question 4

cases where the sc has been accused of ‘liberal’ judicial activism

Answer 4

• brown v board of education: outlawed racial segregation in public schools
• roe v wade: declared a womens right to an abortion is a constitutional right
• obergfell v hodges: legalising same sex marriage

Question 5

cases where the sc has been accused of ‘conservative’ judicial activism

Answer 5

• DC v heller: extended the provisions of 2nd amendment
• Citizens united V FEC: overturned the bipartisan campaign reform act, arguing that the ban on interest groups making ‘election communication; within 30 days of a primary violated their 1st amendment rights
• Bush V gore: awarded the presidency to George W bush

Question 6

whats the problem with judicial activism

Answer 6

the words are often used about any decision that a person disagrees with. ‘Activist’ judges are simply judges who make the wrong decision in their view
critics may say that the USA now has an imperial judiciary

Question 7

what is an imperial judiciary

Answer 7

the view that the courts have become too powerful through powers of judicial review and impact on public policy

Question 8

what is judicial restraint

Answer 8

when the court is more inclined to accept the views or actions of elected officials
they will also tend to defer to what has gone before and be more inclined to leave things how they are.
they put a lot of weight onto judicial precedence - stare decisis
they also defer to the leg and exec branches because they are directly accountable to voters unlike theirselves

Question 9

what is stare decisis

Answer 9

a legal principle that judges should look to past precendents as a guide wherever possible

Question 10

example of liberal judicial restraint

Answer 10

whole womens health v hellerstedt 2016 - dealt with texas law that imposed restrictions on abortion providers. the sc ruled that the restrictions placed an undue burden on women seeking abortions and where therefore unconstitutional.
it showed continuing defence for ROE V WADE

Question 11

example of conservative judicial restraint

Answer 11

bucklew v precythe
bucklew claiming that he has a condition that would mean the lethal injection woulg give him a painful death
Sc justice Gorsuch wrote that while the 8th amendment forbids cruel and unusual methods of capitol punishment, it doesn’t guarantee a prisoner a painless death

Question 12

what does judicial resraint mean justices do less of

Answer 12

less likely to declare acts of congress unconstitutional

Question 13

criticisms of judicial restraint

Answer 13

• the original meaning is often unclear eg the right to bear arms applies only to reference of belonging to militia or does it cover the right to gun ownership of the average person
• narrow focus on the original text alone, limits the meaning and interpretations of a doc written more than 2 centuries ago by a small group of individuals who were not diverse in their background and general outlook.

Question 14

criticisms of judicial activism

Answer 14

• judicial activism allows the con to be modernised and updated but they do so in a way that reflects their own personal views on what the constitution should be like and what rights or laws stand for all
• judicial activism and its approach to extending constitutional rights into areas completle unconsidered by the founding fathers such as abortion and lgbtq rights undermines the power and function of the elected reps in the exec and congress. these issues should be debated in congress not the courts

Question 15

what is public policy and how does it link to the sc

Answer 15

the policy created by new laws passed in congress or the exec actions of a president

the sc role is to interpret the constitution based on the laws of congress or executive actions which make the sc effectively sovereign

Question 16

whats the supreme court’s impact on public policy

Answer 16

1 - uphold existing policy eg whole womens health v hellerstedt
2 - remove existing policy - citizens united v FEC
3 - establish new policy - obergfell v hodges
4 - shaping public policy via inaction - planned parent hood of arkansas v jegley

Question 17

whole womens health v hellerstedt

Answer 17

upholding existing policy
texas state law imposed a strict new set of requirements on abortion providers.
the sc did strike down the law and said that it placed ‘a substantial obstacle in the path of women seeking an abortion which violates the constitution’
IMPACT ON PUBLIC POLICY - the sc’s decisiosn on womens right to have an abortion had always dominated. ROE V WADE is one of the most politically important decisions in the history of the sc. WWHV H upheld this provision and the constitutional right to have an abortion. the sc upheld judicial precedent and

Question 18

citizens united v FEC 2010 (striking down a federal law)

Answer 18

removing existing policy - CU wanted to air a film which was critical of hiliary clinton before the 2008 primaries. The bipartisan campagin reform act prevented any interest group from making an election communication within 30 days of a primary. CU said this was against their 1st amendment
the sc ruled in CU’s favour saying congress shoudnlt be able to fine or jail citizens for simply engaging in political speech. It also created a new policy which allowed for the development of PACS who could raise unlimited amounts for campaigning
IMPACT ON PUBLIC POLICY -demonstated how the sc can be a quasi-legislative body, effectively creating new laws. Obama was furious because he had approved of the previous policies and he couldnt do anything about the sc decisios

Question 19

obergefell v hodges 2015

Answer 19

establishing new policy
6 lower cases argued that state bans on same sex marriage violated the 14th amendment
it clearly illustrated the strict v loose constructionist justices in court. the sc narrowly favoured the loose constructionist position which was supported by Chief justice Kennedy who is clearly a loose constructionist because of his speech which the word ‘dignity’ appeared nine times, yet its never appeared in the constitution

Question 20

planned parenthood of arkansas v jegley 2018

Answer 20

shaping through inaction
the case was an appeal to the strict regulation of medically regulated abortion. the law in arkansas would have had the effect of severely restricting access to abortions in the state.
by refusing to hear the case, they helped shape public policy because planned parenthood then said they would stop providing medication abortions in the state
IMPACT ON PUBLIC POLICY
despite not having a reason for not hearing the case, it perhaps hints at the unwillingness of the conservative court to uphold abortion rights