The Constitutional Role of the Supreme Court (AQA A-Level Politics): Revision Notes
The Constitutional Role of the Supreme Court
The Supreme Court holds two fundamental constitutional responsibilities within the American political system. These roles give the Court significant power in shaping American law and protecting individual freedoms.
The two constitutional roles
The Supreme Court serves as:
- Guardian of the Constitution through constitutional interpretation
- Protector of citizens' rights by safeguarding civil liberties
Understanding these roles is essential to appreciating the Court's power and influence over American government and society.
Supreme Court as guardian of the Constitution
Although the Constitution is a codified document, its meaning is not always clear-cut. The Supreme Court interprets the Constitution and applies its principles to modern situations. When the Court makes a ruling, it determines whether laws and executive actions comply with the Constitution.
This gives the Court tremendous authority because, in effect, the Constitution means whatever the Supreme Court says it means.
However, justices fundamentally disagree about how constitutional interpretation should be conducted. While justices are often labelled 'conservative' or 'liberal', the terms strict constructionist and loose constructionist more accurately explain their judicial philosophy.
Strict constructionism
Strict constructionism is a judicial approach in which the Constitution's text is followed as closely as possible when making judgements. According to this philosophy, the Constitution is a precise legal document that can only be updated through the formal amendment process.
The formal amendment process requires the consent of two-thirds of both houses of Congress and three-quarters of state legislatures. This deliberately high threshold ensures the Constitution can only be changed with overwhelming support.
Strict constructionists believe that constitutional interpretations should not depart from the text's meaning, even when applying it to modern situations. This approach tends to produce conservative judgements.
Originalism
Strict constructionists are closely associated with originalists, who believe the Constitution's language should be interpreted according to the framers' original intentions, even if this now appears outdated.
Justice Antonin Scalia on Originalism
Perhaps the most famous originalist was Justice Antonin Scalia (served 1986-2016), who explained his philosophy:
The constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the Court, thinks it ought to mean, but what it meant when it was adopted.
Modern originalist justices
Republican presidents typically appoint strict constructionist or originalist justices. Clarence Thomas, the longest-serving justice on the Court and a dedicated originalist, was appointed by George H.W. Bush. President Trump appointed three originalists: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
Gorsuch on Originalism and Political Outcomes
However, Gorsuch pointed out in 2019 that originalism does not automatically produce politically conservative outcomes:
Originalism is a theory focused on process, not on substance. It is not 'Conservative' with a big C focused on politics. It is conservative in the small c sense that it seeks to conserve the meaning of the Constitution as it was written. The fact is, a good originalist judge will not hesitate to preserve, protect, and defend the constitution's original meaning, regardless of contemporary political consequences...In my own judicial career, I've written many originalist rulings with so-called 'liberal' results.
Indeed, in 2020, Gorsuch wrote the majority opinion in a landmark ruling that outlawed discrimination by employers based on sexual orientation or gender. Nevertheless, most originalist judgements are conservative in outcome.
Loose constructionism
Loose constructionism is a judicial approach in which the Constitution is interpreted more flexibly, according to a modern context rather than the framers' precise original meaning. This allows the document's interpretation to evolve over time.
Loose constructionists, such as the late Ruth Bader Ginsburg, favour the idea of a living constitution. In their view, the Constitution is a living document that should be interpreted by the Court to suit society's changing needs.
Justice Stephen Breyer wrote in 2014 that the Constitution should be interpreted "in light of its text, purposes, and our whole experience". This reflects the loose constructionist belief that constitutional interpretation must adapt to contemporary society.
Loose constructionists are usually appointed by Democratic presidents and are likely to make judgements that liberals support.
Views of interpretative approaches
The debate between these approaches is ongoing and politically charged.
Liberal criticisms of strict constructionism
Liberals criticise strict constructionism for preventing necessary and positive change. They argue that clinging to 18th-century meanings makes the Constitution irrelevant to modern society.
Conservative criticisms of loose constructionism
Conservatives argue that updating the Constitution's meaning beyond the framers' intentions represents a power grab by unelected justices.
Brett Kavanaugh's View (2017)
In 2017, the year before his appointment, strict constructionist Brett Kavanaugh explained:
...we believe that changes to the constitutional laws are to be made by the people through the amendment process and, where appropriate, through the legislative process, not by the courts snatching that constitutional or legislative authority for themselves.
Justices who resist labels
Not all justices identify neatly as strict or loose constructionist. Liberal justice Sonia Sotomayor dismissed the focus on a living constitution, arguing that decision-making is more complex.
Sotomayor on the Complexity of Constitutional Interpretation
What you are doing is interpreting new facts to an established law that in part has been given meaning in precedent, and that in part has a historical background, and you're drawing from all of that toolbox of precedent, history...and from statutory construction principles. It is not about reading words strictly or about living constitution. It's about giving meaning on the basis of facts that are presented to you.
Some conservative justices also resist these labels. Chief Justice John Roberts explained at his confirmation hearings that he "does not have an all-encompassing approach to constitutional interpretation" and would instead "follow the approach or approaches that seem most suited in the particular case".
Roberts' flexible view led him to act as the 'swing vote' on the Court after Anthony Kennedy's 2018 retirement, sometimes siding with liberal justices on key cases.
Supreme Court as protector of citizens' rights
The Supreme Court protects civil rights and liberties by serving as the ultimate court of appeal for people who believe their rights have been infringed. The Court can strike down laws passed by federal or state legislatures if they do not comply with the Bill of Rights or other constitutional rights. It can also rule executive actions unconstitutional if they infringe citizens' constitutional rights.
The Court has a crucial role in interpreting rights and liberties within the Constitution, applying provisions in the Bill of Rights to modern contexts. This interpretive power allows the Court to give practical meaning to abstract constitutional principles.
Examples of constitutional interpretation
The following cases demonstrate how the Court interprets constitutional provisions:
First Amendment: freedom of religion
Constitutional provision: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
Interpretation: The Court must strike a balance between avoiding an 'established' religion (one adopted by the state) and allowing citizens to freely practise their religion.
Case Study: Burwell v Hobby Lobby Stores Inc. (2014)
The Court struck down part of the Affordable Care Act 2010, which made family-run businesses contribute to health insurance that might be used for contraception. The Court ruled this violated the business owners' religious freedom.
First Amendment: freedom of speech
Constitutional provision: "Congress shall make no law...abridging the freedom of speech, or of the press."
Interpretation: Political donations are seen as an expression of free speech and have been protected by the Court.
Case Study: Citizens United v Federal Election Commission (2010)
The Court controversially ruled that corporations, unions and associations had the same rights to free speech as individuals. Therefore, they could make political donations and political adverts in the same way as individuals.
Second Amendment: gun rights
Constitutional provision: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Interpretation: Liberals interpret this as a collective right to bear arms within a militia (a military force made up of civilians, used in emergencies such as the US War of Independence, 1775-83). Conservatives claim the amendment provides an individual right to bear arms, and most argue that this would be infringed by any form of gun control.
Case Study: District of Columbia v Heller (2008)
The Court struck down a law banning handgun ownership and ruled that the amendment does confer an individual right to bear arms.
Eighth Amendment: the death penalty
Constitutional provision: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Interpretation: The death penalty is legal in 31 US states. Supreme Court rulings have focused on deciding what constitutes 'cruel and unusual punishment'.
Case Study: Baze v Rees (2008)
The Court ruled that lethal injection was not 'cruel and unusual punishment', so could be used for executions.
The significance of judicial review
The Supreme Court is arguably the most powerful of the three branches of government because of its power of judicial review. This power allows the Court to strike down laws and executive actions that conflict with the Constitution.
The Power of Judicial Review
Judicial review is a very powerful check on the powers of the executive and the legislature. The only way for the other two branches of government to overrule the Court's decision is to formally amend the Constitution, so in practice the Court's decision almost always stands.
Examples of judicial review in action
Boumediene v Bush (2008)
The Court ruled that foreign nationals detained as terrorist suspects at Guantanamo Bay by George W. Bush's administration had a right to challenge their detentions in federal courts.
United States v Texas (2016)
The Court struck down Obama's executive order giving an indefinite delay in deportation to around 5 million illegal immigrants.
For ordinary Americans, judicial review is the means by which their civil rights and liberties are protected from infringement by federal or state executives or legislatures.
Origins of judicial review
How Judicial Review Was Established
Judicial review is not expressly explained in the Constitution but was established by a Supreme Court judgement, Marbury v Madison (1803). This was the first time the Court struck down an Act of Congress and established the principle that the Supreme Court could overrule legislation if it conflicted with the Constitution.
Exam guidance
Exam Preparation Checklist
When discussing the Supreme Court's constitutional role in exam questions, ensure you can:
- Distinguish clearly between strict and loose constructionism with examples
- Explain how judicial review gives the Court power over the other branches
- Use specific case studies to illustrate how the Court protects rights
Key Points to Remember:
- The Supreme Court has two constitutional roles: interpreting the Constitution and protecting citizens' rights
- Strict constructionists (originalists) interpret the Constitution according to its text and the framers' original intentions, typically producing conservative judgements
- Loose constructionists favour a living constitution approach, interpreting it flexibly to suit modern society, typically producing liberal judgements
- Judicial review, established in Marbury v Madison (1803), gives the Court power to strike down laws and executive actions that conflict with the Constitution