Handout – Politcal vs Judicial Institution
by
28th February 2018
Is the Supreme Court a ‘political, not a judicial institution’?
Why is there a debate?
- The Supreme Court is the highest tribunal in the Nation, for all cases and controversies arising under the constitution or laws of the US.
- The court is charged with ensuring the American people with the promise of equal justice under the law and interprets the constitution which many have seen as vague.
- However, many people have criticised the Supreme court and claimed that is it a political institution, not a judicial institution.
- They believe that the court is an ‘imperial judiciary’, and the Supreme Court is exercising the powers that the Founding Fathers reserved with the elected branches of government.
The Supreme Court can be seen as a political body:
- The power of judicial review has led to the Supreme Court becoming involved in a host of political issues (freedom of speech, gun control, abortion rights), this gives the Court its political importance. Many issues dealt with by the Court are hot-button political issues (matters over which political parties disagree and elections are fought).
- Judges are appointed by a politician (the president) and confirmed by politicians (the Senate). Appointments to the Supreme Court are also an issue in many presidential elections such as the 2000 election.
- 2000 Election Result – The Supreme Court ruled that the manual recount devised by the Florida Supreme Court was unconstitutional as it violated the 14th Amendment clause of “equal protection”. This was seen by many as the court literally handing the election to George W. Bush.
YOUR TASK:
Colour code the arguments below to show whether they support the idea that the Supreme Court is a political institution or a judicial institution.
| justices are nominated and confirmed by politicians; it is accepted that a president will nominate a candidate sympathetic to his agenda, and nominees will come to the confirmation process with a track record of judgments and/or writings suggestive of their ideological perspective. | justices themselves claim to be ‘neutral umpires’ and that it is possible to apply the constitution to the cases they consider in a ‘restrained’ and non-political way |
| many cases are decided by purely technical and legal considerations, and only a few high-profile cases have overtly political implications | the power of the court through judicial review to declare the laws and actions of the elected branches unconstitutional inevitably gives their role a political element judicial interpretation cannot be value-free, and judicial activism imposes the political values of justices on the constitution |
| the court is used for political ends; interest groups bring test cases and lobby the court through amicus curiae briefs | justices may rule against their own stated preferences, e.g. Justice Kennedy in the Texas v Johnson judgment wrote “The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.” |
| justices are constrained by precedent, which they are reluctant to overturn, and by the law itself | justices’ decisions which cases to take reflect a value judgment as to which are important |
| the judgment process itself is political; in the process of reaching a decision, justices will try to ensure their view prevails; they will form alliances against opponents, strike bargains and offer compromises | judgments are not arrived at in a judicial vacuum; justices are aware of public opinion and the likely impact of their decisions |
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