Start Here – Supreme Court

In June 2015, the United States Supreme Court ruled in Obergefell v. Hodges that state-level bans on same-sex marriage are unconstitutional. This effectively legalised gay marriage throughout the US – a landmark case that has gained worldwide media attention. Commentators called it a triumph of progress, equality and liberty and praised the Supreme Court for, in the words of Erwin Chemerinsky (Professor of Law at the University of California) “playing exactly the role that it should in society:  protecting those who have been traditionally discriminated against and extending to them a right long regarded as fundamental”.  Gay rights became prominent in the mid 1990s, and approval levels for gay marriage reached c.60% this year. This begs the question that despite popular support, why has it taken 15-20 years to get a ruling? This is an interesting question on how the Supreme Court deals with controversial social issues.

Theoretically Supreme Court justices are insulated from public opinion as they are unelected, appointed for life, have a fixed high salary to ensure independence and neutrality. There are also constitutional limitations on the court such as the need to follow precedent (cases that have been previously ruled on), their inability to initiate a case (the Supreme Court must wait for a case to be appealed several times before it reaches them) and the limited workload they can undertake (around 90 cases a year) mean that even if the court wanted to respond to every twist and turn of public opinion they wimple would not be able to. At best the court could only respond to the most significant and enduring swings in popular opinion, for example the civil rights and women’s movement in the 1960s and 1970s. There is a broad catalogue of examples of the Supreme Court, not just being insulated from public opinion but often ruling the exact opposite to what public opinion may demand. For example, the ruling in Kennedy v Louisiana (2008) meant that child rapists could no longer be punished by the death penalty, and that in fact, the state cannot impose the death penalty for crimes that did not result in a death. In United States v Eichman (1990) the court ruled that a law against flag desecration was unconstitutional, despite opinion polls being in the high 60%s in favour of banning flag burning.

However, in reality the Supreme Court can not completely ignore changes in public opinion, and generally having made an initial stand against the public the court often gives ground on following cases without overturning the original ruling – a tactic criticised as trying to appease those upset by the original ruling. The Supreme Court needs to maintain the respect of the people, and is reliant on the elected branches to enforce their rulings; remember that Congress can amend the constitution thereby forcing the hand of the Supreme Court (a last resort if the court persistently ignored popular will). We also have to remember that most of the issues dealt with by the Supreme Court do not have one viewpoint – they are often controversial and some are close to creating 50/50 splits in opinion; issues such as abortion, school prayer, gun control, affirmative action and (yes!) gay marriage. The fact that the court is even willing to take on such cases knowing that a large portion of the public will be upset regardless of the outcome indicates they have a degree of insulation from public pressure.

When investigating the role of the Supreme Court, as well as understanding the roles and powers of the institution, and the landmark cases from history, it is essential to understand the how concepts of judicial activism (the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent) and judicial restraint (refraining in the judiciary from departure from precedent and the formulation of broad doctrine) are at work and how these relate to the significant political issues of the day.