The American Judiciary

AQA A level Government and Politics 

Unit 4a: The Judicial Branch and the Supreme Court 

Key terms


Strict constructionist

A justice of the Supreme Court who interprets the Constitution in a literal or conservative fashion, aiming to follow its precise meaning. 

This judicial philosophy favours states rights and preserving of legislation and precedents. 

Justices who are strict constructionists feel that it is the legislature's role to make laws and the executive's to see them carried out, not the judiciary's. 

It is often criticised for providing a very narrow interpretation of the Constitution which has limited the development of civil liberties the Founding Fathers did not expressly provide for (e.g. civil rights for African Americans) 

Examples of cases are... 

US v. Lopez (1995) - declared the Congressional Gun-Free School Zones Act (1990) unconstitutional. 

Van Orden v. Perry (2005) - upheld the constitutionality of displaying the 10 commandments in a court house in Texas, 

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Original intent

A strict constructionist look at what the Founding Fathers originally intended when they wrote the Constitution in order to interpret it. 

They are often referred to as 'originalists'. 

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Loose constructionist

A justice of the Supreme Court who interprets the Constitution in a liberal fashion, looking beyond the literal meaning of the text. 

Loose constructionists tend to stress the broad grants of power to the federal government. 

By using this philosopy, justices hope to be able to ensure that all people, including minorities, are treated fairly under the law. They see this as part of their role as they don't have to worry about re-election. 

This approach is criticised as people say that justices are 'legisalting from the bench'. 

e.g. Roe v. Wade (1973) 

Roper v. Simmons (2005) - can't sentence anyone to death for a crime they committed when younger than 18. 

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Conservative philosophy

A justice with a conservative philosophy will favour preserving the status quo (i.e. following the Constitutution and abiding by precedents) over trying to change the law through judicial rulings. e.g. Gonzales v. Carhart (2007) upheld a federal ban on late term, partial - birth abortions. 

They also seek to protect states rights. e.g. Baze v. Rees (2008) ruled that lethal injection in Kentucky did not violate the 8th amendment (i.e. not a cruel or unsual punishment) 

Often conservatism is associated with strict constructionalism and judicial restraint but not always. 

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Liberal philosophy

A justice with a liberal philosophy will be more likely to interpret the constitution in a loose fashion and overturn both legislation and precedents set by previous courts. e.g. Hamden v. Rumsfeld (2006) ruled that military commissions set up to try enemy combatants in Guantanamo Bay could not go ahead without congressional approval. 

Examples of liberal justices currently sitting on the bench are Sonya Sotomayor and Elena Kagan. 

The Warren and Burger courts had a liberal majority. 

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Judicial activism

An approach to judicial decision making which holds that a judge should use their position to promote desirable social ends.

They see themselves as leading the way in the reform of American society e.g. the Warren Court in the 1950s and 60s tried to move society along in the areas of black civil rights (Brown v. Board 1954) and the rights of arrested persons (Miranda v. Arizona 1966

Judicial activism is usually seen as synonymous with a liberal judicial philosophy. However, Citizens United v. Federal Election Commission (2010) is an example of conservative judicial activism. It overturned precedents set by Austin v. Michigan Chamber of Commerce (1990) and McConnell v. Federal Election Commission (2003) and key provisions made by the Bipartisan Campaign Reform Act (2002) when making a conservative ruling that, when it comes to rights of political free speech, corporations have the same rights as individuals and can, therefore, make financial donations to political campaigns. 

Judicial activism sees the Court as an equal partner to the legislative and executives branches of government, not deferential to them => "I'm in charge, and I will seek to be a player equal to the other branches in shaping policy.' T.R van Geel (2009) 

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Judicial restraint

An approach to judicial decision making which holds that a judge should defer to the legislative and executive branches which are politically accountable to the voters (i.e. elected) Therefore, it is less likely to declare acts of Congress, or the state legislatures, unconstitutional e.g. the Robert's court ruling on Obamacare

Judicial restraint also means accepting what has gone before - 'stare decisis' or 'to stand by what is decided' e.g. courts have been willing to put restraints on a woman's right to abortion but have never wanted to overturn Roe v. Wade (1973) e.g. Planned Parenthood v. Casey (1992) upheld a Pennsylvania law that stated a married woman seeking abortion must receive counselling on the risks and alternatives and wait 24 hours after counselling before having the procedure. 

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Judicial review

The judicial branch examines actions or decisions of state and governement bodies and can declare them unconstitutional and, therefore, invlaid if found to be so. 

This is a check that the judiciary has on the other branches. 

It was 'founded' by Marbury v. Madison (1803) which declared an act of congress unconstitutional. 

It is a good way of keeping the constituion up to date as it means that it can be changed without an official ammendment which requires time and is unlikely to be passed. 

It makes the Supreme Court exceptionally powerful and gives it an opportunity to enter into the political arena e.g. Bush v. Gore (2000)

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Judicial independence

The principal that there should be a strict seperation between the judiciary and the other branches of governement. A fundamental priniciple of a liberal democracy and the Rule of Law. 

Judges operate free from any political control over their behaviour exerted by the legislature or judiciary e.g. although they may be appointed by the president, who will choose a nominee with the same philosophy and shared aims, he has no control over his choice once they have taken their seat on the bench. Eisenhower said his nomination of Chief Justice Warren was the 'biggest damned-fool mistake' he ever made as Warren turned out to have a liberal philosophy. 

Judicial independece is maintained by...

  • Physical seperation 
  • Justices appointed for life (security of tenure) 
  • Can only be impeached for personal misconduct. 
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Due process

A provision in the 14th amendment (1868) which made the restrictions in the Bill of Rights apply to not only the federal government but to the state legislatures as well.

This has enabled the court to review and invalidate a wide range of state legislation, including laws on abortion and the death penalty. 

There are two types of due process 

  • Substantive due process - the substance of a law must not be arbitrary, unreasonable or unconstitutional. 
  • Procedural due process - the process of the law must be fair. 
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Amicus Curiae Briefs

These are 'friends of the court' briefs given by interested parties (such as businesses, the exectutive and interest groups) prior to a case being heard. 

They say something of relevance to the case, giving a certain view or take on the matter, in an attempt to effect the final decision. 

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Appellate Court

The Supreme Court is an appellate court in that someone must appeal to the court to have their case heard. For example, half of all US states appealled to the Supreme Court to make a ruling on Obamacare. 

However, the Supreme Court does have original jurisdiction in some areas e.g. when it heard Bush v. Gore (2000)

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Rule of Four

At least four of the nine Supreme Court justices must wish to hear a case in order for it to be heard. 

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Old Sir


This set of cards might be seen as a sound starting point for students beginning their revision of the philosophical nature of the Supreme Court's work. the references to relevant cases is especially useful for students looking for evidence to support discussion and pick up marks in AO2, (evaluation and analysis).

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