- Supreme Court
After Chief Justice
Roger Taney’s decision in Dred Scott v Sandford (1857)
- President Lincoln stated in his first inaugural address: "The people have ceased to be their own rulers, having . . . resigned their government into the hands of that eminent tribunal."
‘who gets what, when and how’ – Harold Lasswell’s definition
- Think about Roe v Wade (1973) – the Court, not politicians, decided to give women abortion rights.
appointments are seen through a political prism
- think about Bork in 1987. After Bork’s rejection, Reagan nominated another conservative, Antonin Scalia – he got through.
- In 1993 Clinton nominated Ruth Bader Ginsburg for her liberal views on abortion.
- Also Bush appointed the conservative Harriet Miers in 2005. Her appointment was clearly more motivated by politics than law – remember she was rated very poorly by the ABA.
viewed through a political prism
- think about 1954 Brown v Topeka Board of Education and 1973 Roe v Wade.
historian Howard Zinn (1922-2010) has argued that the Court is
intrinsically conservative in its rulings; it was only a liberal
court between 1954-86.
- Think about Bush v Gore (2000).
- Bill Clinton in My Life (2004) writes: ‘It was an act of judicial activism that might even have made Bob Bork blush.’
In the mid 1930s,
for example, the Supreme Court, determined to read its own economic
philosophy (laissez faire) into the Constitution, declared numerous
New Deal laws unconstitutional.
Re-elected by an
overwhelming mandate, Roosevelt introduced legislation to "pack"
the Court and create his own majority.
- Chief Justice Charles Evans Hughes and Associate Justice Owen Roberts, perhaps fearing for the Court's independence, shifted their votes in a major case, resolving the crisis and removing the Court from the centre of political controversy.
- Re-elected by an overwhelming mandate, Roosevelt introduced legislation to "pack" the Court and create his own majority.
In the few decades,
the courts have showed little reluctance to substitute their judgment
for that of the people and their representatives.
- In Engel v. Vitale (1962), the Supreme Court outlawed school prayers and abolished a long-standing and respected practice.
- In Roe v. Wade (1973), it declared practically all state laws restricting abortion unconstitutional and removed this complex and explosive issue from the political process, where compromise was more likely to occur.
- In Buckley v. Valeo (1976), the Court destroyed the Campaign Reform Act of 1974, declaring the expenditure of funds on one's own campaign was protected by the First Amendment.
- In United Steelworkers of America v. Weber (1979), the Court turned the 1964 Civil Rights Act on its head, allowing private employers to establish racial preferences and quotas in hiring.
- In U.S. Term Limits v. Thornton (1995), the Court struck down more than 20 state referenda limiting the terms of U.S. senators and representatives, short-circuiting a grassroots movement with broad support.
- After Chief Justice Roger Taney’s decision in Dred Scott v Sandford (1857)
- Richard Maidment argues that the court is a legal body which makes political decisions from time to time.
John Marshall Harlan II, concerned about the growing activism of the
Earl Warren Court, warned that "The Constitution does not confer
on the Court blanket authority to step into every situation where the
political branch may be thought to have fallen short . . . [to do so]
saps the political process."
believed that the complex business of brokering the political
interests belonged to the people and their elected representatives.
- Harlan's senior colleague on the Court, Felix Frankfurter, shared his concerns and declared that "the courts are not fit instruments of decisions where what is essentially at stake is the composition of those large contests of policy traditionally fought out in nonjudicial forums."
- Harlan believed that the complex business of brokering the political interests belonged to the people and their elected representatives.
can only act through litigation
- it is passive in this sense. The Court does not consider hypothetical cases or offer advisory opinions on proposed legislation. Writ of Certiorari
are determined through technical / legal factors
- think of 1989 Texas v Johnson and 1985 Garcia v San Antonio Metropolitan Transit Authority
- (stare decisis et non quieta movere: Maintain what has been decided and do not alter that which has been established)
of precedent and judicial reluctance to depart from it: fundamental
principle of common law systems.
- However there between 1946-1992 the Supreme Court reversed itself in about 130 cases.
– security of tenure.
- Think about Eisenhower’s comments on Earl Warren and William Brennan.
- Remember Denis Thatcher’s answer to the question: What does your wife do? ‘She has a temporary job’.
does not have the power of the sword (for this reason Alexander
Hamilton called it ‘the least dangerous branch’)
- think about the 1954 Brown and 1964 Civil Rights Act. Great quote from President Andrew Jackson: ‘John Marshall has made his decision; now let him enforce it.’
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