Revision & Exam Practice for the “legacy” A Level qualifications including:

• Edexcel (Unit 3C – Representative Processes in the USA, Unit 4C – Governing the USA)
• AQA (Unit 3A – The Politics of the USA, Unit 4A – The Government of the USA)
• OCR (F855 – US Government & Politics)

REVISE THE US SUPREME COURT

How to use these questions for revision and exam practice:

1. For long-answer or essay questions, plan a 4 paragraph response using the PEEACH paragraph structure (P=point, E=evidence, E=explain, A=argument, C=counter argument, H=how does this answer the question?)
2. Once you have completed your question, read the indicative content.
3. Using the essay criteria, colour code each criteria to show how successful you were at including this in your essay (red, amber or green)
4. There is also a space for you to add additional notes and/or examples that don’t appear in the indicative content, or add better explanations, or include additional, points from the indicative content.

Does the Supreme Court have too much power for an unelected body? (45)

Indicative Content

Judicial review gives the Supreme Court immense power over the constitution, and, in recent years, judges have become arbiters over a wide range of public policy, most famously desegregation and abortion. This has given rise to a debate between conservatives, who believe that activist justices have gone far beyond the court’s intended powers, and liberals, who argue the court’s expanded role is necessary to preserve the constitution’s values.

Conservatives’ arguments include:

• The court, as an unelected branch, should adhere to the principle of legislative deference, i.e. it should only overrule legislation passed by the people’s elected representatives if it unambiguously violates the constitution.
• Because judicial review is not explicitly specified in the constitution, and the judiciary was envisaged by the framers as the ‘least dangerous’ branch, the court is effectively uncheckable.
• If, in overriding legislators, the court is seen to sanction a particular political viewpoint as ‘constitutional’, e.g. in its striking down of the New Deal legislation of the 1930s, then it undermines its own legitimacy.
• If some parts of the constitution are ambiguous, then – since it is impossible to show a clear violation – this should act as a brake on the expansion of judicial review, but instead, in the hands of liberals, has become the basis for it.
• Judges are expert in law, not social policy, and consequently judge-made social policy is often ineffective and unworkable in practice.

Liberals’ arguments include:

• For the constitutional values of liberty and equality to be upheld, the constitution needs to be a ‘living constitution’ and interpreted to meet the needs of modern society; if it is not, it will become increasingly irrelevant.
• The combination of a separated system of government and risk-averse politicians means that legislation in contentious areas is unlikely to be passed, and that, if the court does not act, access to basic rights could be denied indefinitely.
• Cases such as Plessy v Ferguson show that, if the court is willing to overturn only the most flagrant breaches of the constitution, basic rights will be denied.
• There are checks on the court; for example, Congress can (and has) initiated constitutional amendments in response to its decisions.
• Conservatives are inconsistent, as conservative judges are themselves willing to exploit constitutional ambiguities to advance their agenda, e.g. the Roberts court has struck down gun control legislation in cases such as McDonald v Chicago