Supreme Court

11 Key excerpts on "Supreme Court"

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  American Politics and Society

  • David McKay(Author)
  • 2017(Publication Date)
  • Wiley-Blackwell

    (Publisher)

  Chapter 15 The Supreme Court And Judicial Politics

  Outline

  • The American Legal 
System
  • The Supreme Court: Decision-Making
  • The Supreme Court and Political Power
  • Controversy 13. The Supreme Court: An Active or a Passive Role?
  • Briefing: The Supreme Court and the Guantánamo Bay Detainees
  • The Polarized Rehnquist and Roberts Courts
  • Conclusions: The Court and American Democracy
  • Summary
  • Questions for Discussion
  • Glossary
  • Notes
  • Further Reading

  We are very quiet there but it is the quiet of a storm centre.

  – OLIVER WENDELL HOLMES, ASSOCIATE JUSTICE 
OF THE Supreme Court, 1902–32

  In a democracy, politics is a process of popular education – the task of adjusting the conflicting interests of diverse groups … and thereby to the hostility and suspicion and ignorance engendered by group interests … toward mutual understanding.

  – FELIX FRANKFURTER, ASSOCIATE JUSTICE 
OF THE Supreme Court, 1939–62

  In all societies, the courts play some political role. In liberal democracies, where the independence of the judiciary is regarded as essential to prevent the exercise of irresponsible executive (and sometimes legislative) power, the political role of the courts as interpreters of the law and as defenders of individual freedoms is well established. In despotic and one-party states, courts are political in the quite different sense that they are the instruments of a dominant executive. However, there are also important distinctions within liberal democratic states, the most crucial being the presence or absence of judicial review. As noted in chapter 4, judicial review is long established in the United States, the Supreme Court being the final arbiter of the meaning of the Constitution. Hence, all laws passed by the state and national legislatures, together with all executive actions, are subject to review by the courts, which judge their compatibility with the Constitution. As the final court of appeal, therefore, the Supreme Court has the legal power to declare any action by any other branch of government as unconstitutional. As we develop below, this apparently formidable power is tempered by a number of factors, but in contrast to many other liberal democracies, there can be no disputing the evidence of what is enormous potential judicial power. In the United Kingdom, for example, the courts can review executive actions – but only by testing them in relation to the content of Acts of Parliament. This can produce sharp rebukes for governments when the courts judge that the government has acted ultra vires

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  eBook - ePub

  American Politics and Society

  • David McKay(Author)
  • 2021(Publication Date)
  • Wiley-Blackwell

    (Publisher)

  CHAPTER 15 THE Supreme Court AND JUDICIAL POLITICS

  Outline

  • The American Legal System
  • The Supreme Court:Decision-Making
  • The Supreme Court and Political Power
  • Controversy 15.1. The Supreme Court: An Active or a Passive Role?
  • Briefing 15.1. The Supreme Court and the Guantánamo Bay Detainees
  • The Polarized Rehnquist and Roberts Courts
  • Conclusions: The Court and American Democracy
  • Summary
  • Questions for Discussion
  • Glossary
  • Notes
  • Further Reading

  We are very quiet there but it is the quiet of a storm centre.

  –OLIVER WENDELL HOLMES, ASSOCIATE JUSTICE OF THE Supreme Court, 1902–1932

  In a democracy, politics is a process of popular education – the task of adjusting the conflicting interests of diverse groups … and thereby to the hostility and suspicion and ignorance engendered by group interests … toward mutual understanding.

  – FELIX FRANKFURTER, ASSOCIATE JUSTICE OF THE Supreme Court, 1939–62

  In all societies, the courts play some political role. In liberal democracies, where the independence of the judiciary is regarded as essential to prevent the exercise of irresponsible executive (and sometimes legislative) power, the political role of the courts as interpreters of the law and as defenders of individual freedoms is well established. In despotic and one-party states, courts are political in the quite different sense that they are the instruments of a dominant executive. However, there are also important distinctions within liberal democratic states, the most crucial being the presence or absence of judicial review. As noted in Chapter 4 , judicial review is long established in the United States, the Supreme Court being the final arbiter of the meaning of the Constitution. Hence, all laws passed by the state and national legislatures, together with all executive actions, are subject to review by the courts, which judge their compatibility with the Constitution. As the final court of appeal, therefore, the Supreme Court has the legal power to declare any action by any other branch of government as unconstitutional. As we develop below, this apparently formidable power is tempered by a number of factors, but in contrast to many other liberal democracies, there can be no disputing the evidence of what is enormous potential judicial power. In the United Kingdom, for example, the courts can review executive actions – but only by testing them in relation to the content of Acts of Parliament. This can produce sharp rebukes for governments when the courts judge that the government has acted ultra vires or beyond its powers, and the British courts are becoming more active in reviewing executive actions. A British parliament controlled by the executive can, however, always reverse a judicial judgement, as sovereignty lies not in a constitution but in parliament (although, at least until 2020, in some matters the European Court of Justice did have the final say). In the United States, a decision of the Supreme Court involving the constitutionality of a statute or governmental action can be overturned only by constitutional amendment (or by the Court itself, of course) and, as shown in Chapter 3

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  The Judicial Branch of Federal Government

  People, Process, and Politics

  • Charles L. Zelden(Author)
  • 2007(Publication Date)
  • ABC-CLIO

    (Publisher)

  In accounting for this interplay of the federal courts and politics, it is impor- tant to recall that the U.S. Supreme Court in particular, but also the lower federal judiciary by implication, are not just courts of law. If the federal courts only served the purpose of resolving technical questions of law for the legal community, their rulings would not be controversial. Instead, the federal courts serve as the third branch of the federal government and as such are necessarily and inevitably involved in the issues of the day. True, the courts are passive in the sense that they must wait for cases, disputes, and litigations to come to them; yet over the years, Americans have turned more and more to the federal courts to both resolve conflict and estab- lish public policy. The courts, in turn, have responded with rulings large and small. In this fashion, then, the federal courts are political actors in the ongoing poli- tics of any particular era. In particular, the U.S. Supreme Court has assumed the role of the definitive and last word on the law’s meaning and thus on the legality and constitutionality of government 124 THE POLITICS OF THE COURTS Considered one of the greatest American jurists, Benjamin Cardozo is remembered for his landmark decisions on negligence and his modesty, philosophy, and writing style. In particular, Cardozo is known for opinions that stressed the necessity for the law to adapt to the realities and needs of modern life. (Harris & Ewing, Collection of the Supreme Court of the United States) policies. Consequently, it plays an espe- cially important role in national policy- making. Some scholars, in fact, have ar- gued that—because of the power of the Supreme Court to settle the issue of con- stitutionality and because the federal court judges are appointed for life terms—at the start of the twentieth-first century the United States is actually governed by these unelected and unac- countable jurists.

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  Constitutional Law and Precedent

  International Perspectives on Case-Based Reasoning

  • Monika Florczak-Wątor(Author)
  • 2022(Publication Date)
  • Taylor & Francis

    (Publisher)

  100 in most cases the Court confirmed the finality of its decisions. The significant position of its precedents does not mean that the justices are continuously overturning federal and state legislation, or modifying the meaning of the supreme law of the land. The unique character of this institution and its jurisprudence lies in its potential to determine almost all matters concerning legal, political, social, or economic relations which are written in, or which can be derived from, the Constitution. The use of judicial review, founded in the early years of American statehood and actively exercised since the 1920s, has resulted in strengthening the position of the SCOTUS relative to the other branches of government, especially in the process of constitutional adjudication, making the Court a serious and often final interpreter of what the law means.

  There are definitely numerous factors determining justices’ reasoning in constitutional cases, and the research results presented in this chapter are not exhaustive, especially in the context of the means of constitutional interpretation imposed by the Court in history. Still, it seems obvious that SCOTUS precedents play a significant role in constitutional law, both as the source of rulings which explain the scope of governmental powers and the rights of the people, and as the body of common law responsible for understanding the character and principles of the American legal system. In constitutional cases the justices usually focus on the Court’s own prior rulings, referring not only to the holding of the precedent, but also to the arguments raised by their predecessors. They often use national courts’ decisions as a basis on which to inform, explain, and justify the conclusion they reach, whereas references to international law and international jurisprudence are still an exception, proving the atmosphere of distrust between American judges and their counterparts from international tribunals. Although in history there were decisions in which the justices quoted foreign law as one of the references in building their arguments, rarely have foreign legislation or foreign court decisions become an important source of reference in SCOTUS reasoning. The Atkins, Roper, and, especially, Lawrence

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  Judging Inequality

  State Supreme Courts and the Inequality Crisis

  • James L. Gibson, Michael J. Nelson(Authors)
  • 2021(Publication Date)
  • Russell Sage Foundation

    (Publisher)

  This may be because courts are not assumed to be important policymakers, or because the type of law courts make (mainly common law precedents) is deemed to be a poor cousin to statutory law. Neither assumption, however, is correct. Because the U.S. Supreme Court has steadily withdrawn from American politics (deciding far fewer than one hundred cases per year, a minority of which deal with state law), the state high courts have become the courts of last resort on a vast array of public policies. Indeed, as has been recognized by interest groups that try to shape the state judiciaries, these institutions are incredibly powerful and efficacious policymakers. 3 And creating judicial precedents is just as valuable to interest groups as getting laws passed through legislation. The list of policy areas in which state Supreme Courts have become major policymakers mirrors the list of the most pressing policies confronted by the other branches of state governments. And because each state has its own unique constitution, which often contains provisions dealing directly with inequality, the state judicial branch’s final say on the meaning of the state constitution makes it impossible to overstate the role these courts play in producing public policies relevant to the political, legal, economic, and social equality of Americans. Examples of the prominent role of state courts in shaping social and economic policy are easy to find. For instance, many state high courts have ruled on the legality of school funding equalization schemes (shifting tax revenue from wealthy school districts to poorer school districts). In other cases, state Supreme Courts have set guidelines for the conditions under which employers can dismiss employees without cause (“employment at will” doctrine)

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  Constitutional Courts in Asia

  A Comparative Perspective

  • Albert H. Y. Chen, Andrew Harding(Authors)
  • 2018(Publication Date)
  • Cambridge University Press

    (Publisher)

  12 The Supreme Court of Japan A Judicial Court, Not Necessarily a Constitutional Court   Although Japanese courts have not been very active in exercising their power of constitutional review, 1 their rulings on constitutionality have had significant impacts on various areas of Japanese legal thinking. This chapter first describes the organization of the Supreme Court of Japan and then summarizes some of its prominent constitutional decisions. I Organization of the Court After World War II, under the 1946 Constitution of Japan, which was largely based on the draft prepared by the American occupying forces, Japan adopted an American-style judicial review system. Within this system, the Supreme Court (Saikō-Saibansho) is the highest judicial court of the country, and, according to Article 81 of the Constitution, it is also the ‘court of last resort with power to determine the constitutionality of any law, order, regulation or official act’. Hence, the Court’s constitu- tional review authority inheres in its judicial power; it exercises consti- tutional review to the extent necessary to resolve legal disputes. In one of its early rulings, the Court declared that even without Article 81, its review authority is entailed from the fact that all judicial courts should obey and uphold the supreme law of the land, that is, the Constitution. 2 The reasoning is reminiscent of that of Marbury v. Madison, 5 U.S. 137 (1803), which argues for the power of judicial review without explicit textual authority in the US Constitution. The Supreme Court is composed of the chief justice and fourteen associate justices. The chief justice is appointed by the Emperor as 1 Since its establishment, the Court has held statutes enacted by Parliament unconstitutional in only ten cases. 2 The Grand Bench decision of 8 July 1948, 2 Kû 801.  recommended by the Cabinet, 3 and other justices are formally appointed by the Cabinet, 4 subject to the process described below.

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  Judicial Vetoes

  Decision-making on Mixed Selection Constitutional Courts

  • Lydia Tiede(Author)
  • 2022(Publication Date)
  • Cambridge University Press

    (Publisher)

  1 Introduction The increased judicialization of politics over time has rendered the institutional design of courts both contentious and significant. As courts play a larger role in shaping policy, citizens and policymakers increasingly grapple with the powers of courts, selection of their judges, and their role in society in both backsliding and more established democracies. Despite claims that independent courts are import- ant for governance and the separation of powers, politicians, past and present, often seek to control the powers of courts and judicial selection to seemingly control policy outcomes. At times, politicians successfully manipulate these two facets of courts to achieve their own ends. At other times, the composition of political actors and public sentiment as well as the strength of certain courts defies such blatant methods for controlling courts. The institutional design of courts, especially high courts, has become a salient political issue because courts often make extraordinary decisions invalidating laws approved by the elected branches. For example, in 1995, the South African Constitutional Court struck down a section of its Criminal Procedure Act of 1977 and abolished the death penalty. 1 In recognition of the values espoused by the post-apartheid period, the Court found that this section had violated the state’s commitments to human rights found in its interim Constitution. Similarly, the Constitutional Court of Romania in 2010 found unconstitutional a lustration law that would have prohibited former communists from holding political office. 2 The Court reasoned that adopting such a law so many years after the country’s demo- cratic transition would violate citizens’ rights to run for office or avoid punishment under ex post facto laws. In 2013, the United States Supreme Court issued a groundbreaking decision striking down the Defense of Marriage Act, because it 1 S.

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  The Supreme Court in American Politics

  • I. Unah(Author)
  • 2016(Publication Date)
  • Palgrave Macmillan

    (Publisher)

  1 Nature and Power of the U.S. Supreme Court in American Politics T he U.S. Supreme Court is an institution whose nature and power evolved gradually in well over 200 years of decision making, punctuated by political turmoil and near disasters that engulfed the Court. In this chapter, we exam- ine the nature and evolution of the Court’s power in American politics by focusing on four areas of Supreme Court development: 1. Ambivalence and uncertainty over the Court’s power and independence; 2. The Judiciary Act of 1789; 3. Foundation of judicial supremacy and the application of judicial review; 4. Constraints on the exercise of judicial power. Ambivalence and Uncertainty over Supreme Court Power and Independence When the founding fathers assembled in Philadelphia in the summer of 1787 to debate the nature of U.S. Constitution and government, they were partic- ularly interested in preserving judicial independence, the principle that judges should be allowed total control over their own decisions in the cases they hear. 1 As indicated in Article 3 of the Constitution, the framers preserved judicial independence by granting federal judges permanent tenure “during good behavior” and prohibited any reduction in their compensation to ensure that neither Congress nor the President can exercise control over the judiciary. Despite this constitutional guarantee of independence, the Supreme Court was quite uncertain about its own power and place in the newly formed government. For the Supreme Court, the road to greatness will be gradual, difficult, and downright contentious. The first session of the Court opened on February 2, 1790 in the Merchant’s Exchange Building in New York City, then the nation’s tempo- rary capital. 2 The first justices appointed to the Court by the nation’s first president, George Washington, were all statesmen of great honor and accom- plishment.

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  The Constitution of the United States of America

  A Contextual Analysis

  • Mark Tushnet(Author)
  • 2015(Publication Date)
  • Hart Publishing

    (Publisher)

  The oldest constitutional court in the world, the US Supreme Court has become an important participant in the nation’s overall system of government. Important, but not dominant. Many political matters raise no constitutional questions. The Court’s justiciability doctrines keep some, though few, questions out of court. The mechanisms by which the courts are coordinated with the political branches mean that the courts’ independent contribution to governance is smaller than the rhetoric of judicial independence suggests. When political circumstances are configured ‘correctly’, the Supreme Court can play a large role in governance, although the coordination mechanisms mean that its role gradually, and sometimes not so gradually, diminishes.

  FURTHER READING

  American Judicature Society, ‘Methods of Judicial Selection’, available at http://www.judicialselection.us/judicial_selection/methods/index.cfm?state= (describing judicial selection methods in the states).

  Chemerinsky, E, Federal Jurisdiction (5th edn New York, Aspen Publishers, 2007) (containing a comprehensive discussion of the justiciability doctrine).

  Friedman, B, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (New York, Farrar, Straus & Giroux, 2009).

  Goldman, S, Picking Federal Judges: Lower Court Selection from Roosevelt through Reagan (New Haven, Yale University Press, 1997).

  Kramer, LD, The People Themselves: Popular Constitutionalism and Judicial Review (New York, Oxford University Press, 2003) (an account of the history of departmentalism, with the author describing his preferred version as ‘popular constitutionalism’).

  Snowiss, S, Judicial Review and the Law of the Constitution (New Haven, Yale University Press, 1990) (describing the early uses of departmentalism).

  1

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  The Development of Human Rights Law by the Judges of the International Court of Justice

  • Shiv R.S. Bedi(Author)
  • 2007(Publication Date)
  • Hart Publishing

    (Publisher)

  They equally apply to any judge, irrespec-tive of his or her sphere of concern. In closing, to see how true is the core truth may perhaps best be deduced from the following words of a world famous non judicial leader, Theodore Roosevelt, a former President of the United States of America: The chief lawmakers . . . may be, and often are, the judges, because they are the final seat of authority. Every time they interpret contract, property, vested rights, due process of law, liberty, they necessarily enact into law parts of a system of social philosophy; and as such interpretation is fundamental, they give direction to all law-making. 80 Hence, judges do legislate in the sense that they clarify and develop the law further. And they are in that sense, as Judge Lachs put it, ‘a vital force in the life of the law.’ How far this vital force of the ICJ judges has contributed to the development of human rights law, or has held back from time to time from developing the law, taking into consideration their judicial ideological advocacies, would be surveyed in Part II and Part III of this book. Legislative Role of the Judge 35 78 Ibid . 79 SN Dhyani, Fundamentals of Jurisprudence: The Indian Approach (1997) 335. 80 Cited in M Cappelletti, The Judicial Process in Comparative Perspective (Oxford, Clarendon Press, 1989) 3. 3 Relationship between Human Rights and International Law: Principle of Human Dignity Versus Principle of State Sovereignty . . . all human rights derive from the dignity and worth inherent in the human person. 1 ‘. . . the fundamental principle of State sovereignty,’ is a basic tenet, ‘on which the whole international law rests,’ observed the International Court of Justice. 2 The development of human rights on the international level is one of the most startling innovations in modern international law, because it has a potential to unleash explosive forces challenging the basic tenet of the system, the principle of state sovereignty.

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  The Constitution of Israel

  A Contextual Analysis

  • Suzie Navot(Author)
  • 2014(Publication Date)
  • Hart Publishing

    (Publisher)

  Israeli judges routinely inter-vene in arguments, cut them short and pose questions for clarification. A presiding judge is in charge of managing the trial, determines which questions may and may not be asked, and what evidence is admissible. Though the involvement of judges seems to be increasing over time, the main burden is still borne by the parties. The Supreme Court is the highest court in the State of Israel and it too plays two roles: it is the court of final resort for appeals against ver-dicts handed down by district courts and thus rules on civil, administra-tive and criminal matters. In addition, it sits as the HCJ and hears petitions against state authorities and other tribunals. Fifteen judges serve on the Supreme Court, which generally hears cases in panels of three, unless the court president decides to expand the panel. Supreme Court rulings are final, but the Courts Law offers the Supreme Court President an option to schedule another hearing of a tried (civil, crimi-nal or HCJ) case with an extended panel when the issue at hand might The Court System 195 have broad public or legal implications, or when the original verdict deviates from a previous ruling whose importance requires another hearing. In more exceptional cases, the President may order a retrial of criminal cases. In addition to these three courts, the Israeli judicial system includes particular tribunals whose jurisdiction is limited to certain issues or indi-viduals. These include religious tribunals with powers to rule on mainly matrimonial issues, labour tribunals that rule on labour-related matters, military tribunals that deal with issues concerning people in the military and others. A judicial appointment for all courts is ‘for life’ and in practice until the age of 70. Once appointed, a judge’s position can generally only be terminated if he resigns.

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