Judicial Power and Constraint
The Supreme Court is personified by the nine justices who sit on the High Court. They have life tenure, and their nominations today are often the result of epochal battles between Republicans and Democrats and conservatives and liberals. Understanding why the Supreme Court has become the single most powerful judicial body in the world will help you understand just why the judicial branch is so important in the public policy arena. The Supreme Court has the power to decide what is constitutional and what is not. However, there are many more powers that the judicial branch possesses and uses to check and balance the other branches of government.
As you review this week’s Learning Resources, pay attention to how the Supreme Court defines itself and its legal values in the exercise of its power. Also think about the constraints and powers of the judicial branch in relation to the executive and legislative branches.
Find a current events item that clearly shows how the power of the Supreme Court is being used in impacting policy.
Assignment:
In a four separate, well written paragraphs, respond to the 4 post below in one or more of the following ways:
• Support a colleague’s post by putting the constraint into a modern context.
• Agree or disagree with your colleague’s example of a judicial constraint.
• Ask a probing question about your colleague’s constraint.
EACH PARAGRAPH SHOULD HAVE AN IN TEXT CITATION AND A REFERENCE
POST 1
The Supreme Court, the highest court in the nation is one of the three branches of government. The Judiciary Act of 1789 divided the country into districts, circuits and then set the base for the Supreme Court. (supremecourt.gov) In order to maintain impartiality and provide a measure of independence from the prevailing party pressures, Supreme Court justices are seated for the duration of their working years (life appointments) and are remunerated for their services so they are not subject to economic tidal changes.
Professor Peter Irons discusses the court’s power of judicial review as a measure of moderating the impacts of legislative and executive positions on issues and its use over the course of history to alter, stop or ameliorate legislation attempted by the states and the federal legislative bodies. (Irons, 2003, p. 6) Treanor (2005), examining the case law available prior to the landmark case of Marbury v. Madison decided in 1803, (Oyez.org), explains why the concept of judicial review up to that time had not been challenged and helped set the stage for the Court’s leading methods of mitigation on the legislative and executive branches.
Blackstone (2013) argued the amendment processes used by Congress to attempt to balance the court system is actually one that is not well tolerated in the judicial environment, instead favoring the development of standard or “ordinary” legislation (par. 1) as measures to counteract judicial review and debates over constitutionality. The author explains the Court’s determination that it alone is the sole and final authority on issues of constitutionality remains an issue of debate and scholarly study. (p. 202).
Unah (1996) noted the Supreme Court does not have the expertise required to institute policy; however, the justices are not immune to the political leanings, the other branches of government, and the popular opinion of the nation at any given time. This is evident as the Court consists of justices appointed by the prevailing political parties at the time of each individual’s nomination. Irons (2003) added that the Court’s use of judicial restraint or conversely judicial activism, is subject to the prevailing winds of the political environment at any one point in time. (p. 8) The author warns though the terms are associated with conservative and liberal ideologies, respectively, it is misleading and should not be used to determine the position of a decision. (Irons, 2003, p. 8)
References:
Blackstone, B. (20130. An analysis of policy-based congressional responses to the U.S. Supreme Court’s constitutional decisions. Law & Society Review, 47(1), 199-228.
Irons, P. (2003). The History of the Supreme Court: Course guidebook. Chantilly, VA: The Great Courses.
Marbury v. Madison. 5 US 137. (1803). Retrieved from https://www.oyez.org/cases/1789-1850/5us137
Supreme Court of the United States. (n.d.). The Court as an institution. Retrieved January 6, 2020 fromhttps://www.supremecourt.gov/about/institution.aspx
Treanor, W.M. (2005). Judicial review before Marbury. Stanford Law Review, 58(2), 455-562.
Unah, I. (1996). The Supreme Court’s institutional stature and role in public policymaking. Policy Studies Journal, 24(4), 679-685.
POST 2
The Supreme Court basically holds all the powers of the federal government based on the United States Constitution. Although the Supreme Court is known as being the highest of all law and order, the Supreme Court has a process that they has to be taken before they make the final decision or order (Entin, 1990). The reason being is that the Supreme Court has to thoroughly review rather the acts of the legislative and executive branches as well as the state governments are in line with the U.S. Constitution and to make sure that the acts that are being presented in front of the Supreme Court are constitutional and not unconstitutional (Entin, 1990). Most of all, the framers are the ones that designed systems of what we have today within out government known as checks and balances that are there to make sure that are the branches of government are balanced and to make sure that one branch does not have too much power over the other one. In addition, each branch actually has its own governmental authority to review or even restrain the operations of the other two branches when needed (Entin, 1990). Some really good examples of the power of the Supreme Court acts as checks and constraints on the other branches of government can be seen with some of the current issues involving our current president that is in the White House right now. The current president’s impeachment has involved the other branches of government and at some points even the Supreme Court as well as his foreign policies that has involved the Supreme Court as well as other branches of government because some felt like the President was being unconstitutional based on his actions with these issues.
Reference:
Entin, J. L. (1990). Separation of Powers, the Political Branches, and the Limits of Judicial Review. Ohio St. LJ, 51, 175.
POST 3
“The Supreme Court can declare actions by the other branches unconstitutional, but Congress can regulate the jurisdiction of the courts and the kinds of cases they may hear.” (Anderson, 2015) One area where the Supreme Court can constrain another branch of government is through judicial review. Judicial review can constrain the Executive branch as well as the Legislature. An additional constraint is the power to rule a law unconstitutional.
“The U.S. Supreme Court, for instance, sets its own agenda when it determines which of the thousands of cases appealed to it will be heard and decided.” (Anderson, 2015)
“Because the Constitution grants policymaking authority to others, justices are expected to resist policymaking as much as possible.” (Unah, 1996) This is becoming a difficult area to follow as the Supreme Court can influence policymaking with each decision it makes.
A current event where the power of the Supreme Court is shown is the recent issue over the census and whether a controversial question could be added. The Supreme Court decided that the controversial question could not be added. This does not mean that the president couldn’t try a back door to make it happen but that may also have been blocked as the census is controlled by the Department of Commerce not the president. As the census is getting ready to start, this did not happen. This decision has several consequences as the minority immigrant population may not be afraid to fill out the census now that the question is not part of it. This impacts congressional districts and funding in a huge way due to the accurate counting of immigrant populations.
References
Anderson, J. E. (2015). Public policymaking: An introduction (8th ed.). Stamford, CT: Cengage Learning.
Unah, I. (1996). The Supreme Court’s institutional stature and role in public policymaking. Policy Studies Journal, 24(4), 679–685. Note: Retrieved from Walden Library databases.
POST 4
The concept of judicial modesty or self-restraint has remained significant in the post-World War II Supreme Court. Subscription to this ideology envisions quashing policy preferences of more democratic arms of government such as Congress only when conflict emerges that pits law against the Constitution in a strong and clear manner. At the same time, the application of judicial modesty abhors its application when Supreme justices have a different policy preference.
Blackstone (2013) identifies the case of Plyer v. Doe (1982) whereby the Supreme Court envisioned the violation of the Equal Protection Clause of the 14th Amendment. In this case, a Texas law authorized the state to hold back state funds used for educating undocumented children a decision that was quashed by the Supreme Court. This resolution characterizes the practice of judicial modesty by the Supreme Court justices that set a precedent for other decisions. In Kelo v. New London (2005), the US Supreme Court held that the “public use” embedded in the 5th Amendment allows private development as appropriate public use of resources. This decision emerged subject to different interpretations in light of scope and application.
Unah (1996) notes that judicial policymaking could be offensive and undemocratic to some individuals. As such, Supreme Court decisions are deficient of popular participation and accountability. Nonetheless, the US Constitution vests the responsibility of protecting the civil rights of citizens to judges. Therefore, judicial intervention in areas where legislative policies clash with the law is necessary and beneficial. Nonetheless, most judicial decisions are embedded in the greater political environment particularly on their implementation and impact. For example, recently, the US Supreme Court has allowed President Trump’s administration to significantly scale down asylum granted to Central American migrants (Liptak, 2019). The implementation of this directive will cut across the US-Mexico border and will hold-back decisions by lower courts to block President Trump’s asylum policy.
References
Blackstone, B. (2013). An analysis of policy‐based congressional responses to the US Supreme Court’s constitutional decisions. Law & Society Review, 47(1), 199-228.
Liptak, A. (2019, Sept. 11). Supreme Court says Trump can bar asylum seekers while legal fight continues. The New York Times. Retrieved from www.nytimes.com/2019/09/11/us/politics/supreme-court-trump-asylum.html
Unah, I. (1996). The Supreme Court’s institutional stature and role in public policymaking. Policy Studies Journal, 24(4), 679.
Sample Solution
