The role of the Supreme Court is to interpret the constitution and to apply these interpretations to legislation that has been made by Congress as to avoid them from making unconstitutional law. In doing so this is called judicial review in which the Supreme Court takes an active role in intervening in politics. If a law is suggested as being unconstitutional the Supreme Court will either accept or decline and if they accept, this will result in the judiciary then looking at the case and determining whether or not the accusation is true or if the question is entitled to make a claim. In some instances this can be taken too far by the court and they can intervene and end up making a substantial decision on some very controversial issues which would be deemed as unfair by one of the parties, other times their intervention is adequate and justified. I will argue that they are not politically neutral due to the appointment process; however I think they are less like politicians in disguise and more just actively doing their job and interpreting the constitution as how it is supposed to be.
Those who claim the Supreme Court is too politically active object to judicial activism; however there are two different types of judicial activism, there is liberal and conservative activism, they both have a different style of how the supreme court should be run, so liberal activism being actively interpreting the constitution, whereas conservative activism is the upholding of vested interests. There are many examples of court intervention, known as judicial activism. This is when the Supreme Court becomes active in political decisions which have been made; there is one example of a history changing decision which has been made which is probably the best example when the Supreme Court intervened too much in the Bush vs Gore 2000 election. The Supreme Court said that there was to be no recount and that the hanging chads were to be discounted from the vote, in doing so this made G. W. Bush President of the United States and maybe the Iraq war would not have happened and countless lives could have been saved if it was not for this unjust invasion.
The Supreme Court, an unelected body concerning the electorate (they are voted in by Congress), has just chosen the president of the United States, the most powerful man in the world has just been chosen by nine unelected judges who were slightly conservative; this is very politically active and this would indeed support the notion that judges are politicians in disguise. We then find more cases of when the Supreme Court has intervened on certain statute laws; such is the case of Brown vs. Board which is when the Supreme Court ruled that the segregation of schools is unconstitutional. This is an example of the Judges intervening on a very split matter yet, being able to get it right and when judicial activism was used correctly and they have fulfilled their job expectation.
This was better as it protects the minorities from the government and gives the same equal rights as everyone else, which are shown in the 14th amendment, showing that the Supreme Court was acting correctly and defending the amendments of the constitution. Another case which is quite similar is the case of Roe vs. Wade, however this is slightly different in that it does not state anywhere in the constitution that abortion is allowed or disallowed, however the Supreme court interpreted the 4th amendment as saying everyone has the right to privacy and in turn that means a woman would be allowed to get an abortion. This is showing the Supreme Court that they are performing judicial activism correctly in interpreting the constitution.
There were also a run of cases against George W. Bush in which he wished to hold suspected terrorists without a free and fair trial, there was Rasul vs. Bush 2004 and Boumediene vs. Bush 2008 which were the two directly against Bush, in both these cases the Supreme Court ruled that they must be given a fair trial, before imprisonment (or as Bush wanted to place them in Guantanamo bay) and was legitimately defending the 4th amendment of a free and fair trial. However George Bush managed to ignore this ruling and still put them in Guantanamo without any sanctions towards him, which could suggest that the Supreme Court need more power for installing their rulings. This is another case which shows the unpolitic side of the Supreme Court.
Recently we have seen that the increased politicisation of the Supreme Court is due to the appointment process in which the President nominates a candidate and then the House votes on whether to appoint them or not. We can firstly notice that the President puts forwards nominees and for him to put forward nominees he wants to put someone in who will support is policies and is on his side of the fence. This is already proving to be a corrupt way of appointing justices, however then they are up for scrutiny in the Congress and they are questioned vigorously, this certainly seems legitimate and democratic and can take the sting out of the political side and focuses on making the right call. However the nominee’s political views can come into play when it comes to congress voting on whether this judge should be part of the Supreme Court.
To conclude the nominal process has influenced the Supreme Court to become more political under the fashion that it is done, and effectively the President is nominating an undercover politician in a sense. This process has led to a few clashes over the political views of a certain nominee such as Bork. Bork was an uncompromising conservative who believed strongly in Strict Constructionism and Conservative court. This did not go down well with democratic majority in the House. He was introduced as the first politically opinionated nominee to support the Presidents view in the Supreme Court. This shows us that Presidents in effect are creating their own undercover politicians in such an influential place, which some could day is not a democratic separation of powers.
There is all this talk about judicial activism, but what is ignored a lot is there can be some judicial restraint, which is when the Supreme Court decided to only intervene if the legislature is seriously breaking the rules of the constitution, this is a more conservative view on things. But the reality is that judicial restraint has disappeared from society today, and now judicial activism is a much more common occurrence. There almost no examples on judicial restraint, which shows just how rare it is nowadays. To conclude, the Supreme Court is upholding and interpreting the constitution correctly, it is not too politicised and is acting as required.
They have intervened a lot and have had continuing influence on political decisions, but they have done so in order to prevent any statute law to be passed which does not abide by the Constitution, or which is unnecessary such as Roe vs Wade and can be interpreted by the vague meanings of the constitution and its amendments otherwise what would be the point of the constitution being there you could ask. But also the appointment process has led to increased politicisation of the Supreme Court Justices, however they are not there to uphold their political views like politicians they deliver fair ruling on tough decisions which do have a political impact, but this does not mean they are politicians at all.
Courtney from Study Moose
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