The Political Significance of the Supreme Court (AQA A-Level Politics): Revision Notes
The Political Significance of the Supreme Court
The Supreme Court holds a unique position in American politics. Whilst it is designed to be an independent judicial body, its decisions have profound political consequences. Understanding the political significance of the Court is essential for analysing how power operates in the US system.
Debates about the political significance of the Supreme Court
Political appointees
Each justice carries political significance from the moment they are nominated by the president. The ideological balance of the Court is watched closely by politicians and the media. Currently, the Court has a 6-3 conservative majority, which is a source of concern for liberal Americans who fear their policy preferences will be overturned.
The ideological composition of the Supreme Court has become increasingly central to American political debate. Presidential elections are often fought partly on the basis of which candidate will be able to shape the Court's future direction, particularly when older justices are nearing retirement.
The health of older justices becomes a matter of public interest because it affects when the president might be able to nominate a replacement. Justice Ruth Bader Ginsburg's health was repeatedly headline news for years before her death in 2020, as it would determine whether a liberal or conservative justice would replace her.
Controversial rulings
The Supreme Court has ruled on the most controversial areas of American public policy, including abortion, affirmative action, gun control, marriage rights and immigration. When the Court makes a landmark ruling, it establishes a new legal principle or fundamentally changes how the Constitution is interpreted. This effectively changes the meaning of federal law.
Roe v Wade (1973) ruled that women have a constitutional right to an abortion. This judgement had the same effect as a new law legalising abortion nationwide, but it lacked a democratic mandate because it was decided by nine unelected justices rather than elected representatives.
Obergefell v Hodges (2015) ruled that it was unconstitutional to prevent same-sex marriage. This forced all states to recognise same-sex marriages, regardless of their own laws or the views of their citizens.
Bush v Gore (2000): The Court Decides an Election
Bush v Gore (2000) represents perhaps the most politically significant Supreme Court decision in modern history. The 2000 presidential election was extremely close, depending on which candidate won Florida's Electoral College votes. After a machine recount, George W. Bush led Al Gore by just 327 votes out of 6 million cast. The Florida Supreme Court ordered a manual recount in certain counties. Bush appealed this decision to the US Supreme Court.
The Court ruled 5-4 that a recount within Florida's timeframe was unconstitutional. This effectively decided the presidential election, with Bush winning 271 to 266 Electoral College votes. The decision was highly controversial because all conservative justices voted in Bush's favour, whilst all four liberal justices voted against. Justice Ruth Bader Ginsburg was so opposed that she broke with tradition by writing "I dissent" rather than the customary "I respectfully dissent".
A 'quasi-legislative' body
Through their decisions, unelected justices have created new rights for Americans. Critics argue this means the Court has become a 'quasi-legislative' body, moving beyond its constitutional role of interpreting law to actually making law.
Strict constructionists and originalists argue that the Constitution's text does not mention abortion or same-sex marriage, nor did the framers intend to authorise either. They condemn justices who make such rulings for 'legislating from the bench' - interpreting the Constitution so radically that it has the effect of creating new law.
Landmark rulings are much more difficult to reverse than ordinary laws passed by Congress. A Court decision can only be overruled by the Court itself or through a formal constitutional amendment. In practice, the Court's new interpretation functions as an 'interpretative amendment' to the Constitution.
Judicial restraint
Judicial restraint is a legal philosophy in which judges take a deferential attitude to the legislative and executive branches because these branches are elected, whereas the judiciary is not. Judges who practise judicial restraint:
- Avoid unnecessary conflict with the president or Congress
- Rarely overturn laws or executive actions
- Seldom rule that actions are unconstitutional
- Follow past precedent wherever possible
This philosophy upholds the principle of stare decisis (Latin for "to stand by things decided"), which means that rulings should follow precedent - previous legal judgements - wherever possible. Precedent refers to previous legal judgements which form an important part of the law. Following precedent creates consistency and avoids contradictory judgements.
Conservative justices typically claim to practise judicial restraint, arguing that unelected judges should defer to the democratic will as expressed through elected representatives. This philosophy emphasises stability and respect for established legal interpretations, viewing the judicial role as one of careful interpretation rather than active lawmaking.
Judicial activism
Judicial activism involves making judgements aimed at improving society. Judges engaged in judicial activism are more likely to:
- Strike down laws they consider unjust
- Rule against executive actions
- Break with precedent if necessary
- Make progressive rulings that modernise Americans' rights
Liberal justices are often accused of practising judicial activism. Those who believe in a living Constitution may actively seek to make rulings that update constitutional rights for modern society.
Historical Example: Brown v Board of Education (1954)
Chief Justice Earl Warren was said to be leading an 'activist court' in Brown v Topeka (1954). This landmark case struck down the doctrine of 'separate but equal' facilities for white and black Americans, removing the legal justification for racial segregation. Warren was determined to achieve a unanimous ruling to give maximum weight to the decision. Using his political experience, he chaired private discussions and convinced all justices to rule together. The Brown verdict broke with precedent by reversing an earlier ruling, Plessy v Ferguson (1896), which had permitted segregation.
Although Brown v Topeka is an example of judicial activism, almost all political and legal commentators now see it as an essential and irreversible judgement. This demonstrates that judicial activism can be necessary to ensure all citizens enjoy equal protection under the law.
The Controversy of Roe v Wade
Roe v Wade (1973) has been far more politically contentious than Brown v Topeka. Conservatives condemned it as judicial activism because the male framers clearly had no thought of granting abortion rights when they wrote the Constitution in 1787. This case illustrates how the same judicial approach can be viewed very differently depending on the issue at stake and one's political perspective.
Federalism and the Supreme Court
The Supreme Court has played a crucial role in the development of federalism, frequently making judgements that affect the balance between federal and state power.
The Court has made several rulings that limited state power. District of Columbia v Heller (2008) ruled that a law banning handguns was unconstitutional, as the right to bear arms cannot be overruled by individual state legislatures. Roe v Wade (1973) nationalised abortion policy, which had previously varied by state. Obergefell v Hodges (2015) forced all states to allow same-sex marriage.
However, the Supreme Court has also defended states against federal overreach. The Rehnquist Court (1986-2005) made several key rulings supporting states' rights. Murphy v National Collegiate Athletic Association (2018) struck down a 1992 congressional law prohibiting states from authorising sports gambling, ruling that Congress exceeded its powers under the commerce clause.
Most conservatives believe diversity between states is essential in a federal system and oppose new restrictions on states. Many liberals argue that 'states' rights' have historically been used to justify discrimination, and that civil rights advances like desegregation and same-sex marriage would not have occurred without Supreme Court judgements applying to all states.
Is the Supreme Court too political?
This remains one of the most debated questions in American politics. Consider the arguments on both sides:
Arguments That the Court IS Too Political:
The Court's political nature is evident in several ways. The nomination and confirmation process is highly politicised, with presidents carefully selecting justices who share their ideology. Most justices tend to make either conservative or liberal judgements, generally reflecting the political stance of the president who appointed them. Critics argue the Court acts as a 'third house of the legislature' by effectively making rather than interpreting law.
Judicial activist judges make rulings they believe will improve society, even if the framers never intended such outcomes. Roe v Wade (1973) remains a key dividing line between liberals and conservatives decades after it was decided. The Court effectively decided the presidential election result in Bush v Gore (2000), with justices voting along ideological lines. Over time, the Court has increased federal government power at the expense of states' rights.
Arguments That the Court is NOT Too Political:
Defenders argue that for the Constitution to remain relevant, the Court must apply it to modern policy areas, even when controversial. Once appointed, justices are independent and free from political influence. Decisions are made based on legal argument rather than political principles.
Some justices do not reflect their appointing president's political stance. Justice David Souter, appointed by George H.W. Bush, proved far more liberal than expected. Justices Brett Kavanaugh and Neil Gorsuch have sometimes voted against their appointing president's interests. Justice Anthony Kennedy served as a 'swing vote', not consistently voting the same way.
Judicial activism can be necessary to ensure equal protection under the law, as demonstrated by Brown v Topeka (1954). Congress can check an overly political Supreme Court by initiating a constitutional amendment to overturn the Court's decision, although this is rarely successful in practice.
Key Points to Remember:
- The Court is political from the moment justices are nominated, with the ideological balance closely watched by politicians and the public
- Landmark rulings on controversial issues like abortion (Roe v Wade 1973), same-sex marriage (Obergefell v Hodges 2015), and elections (Bush v Gore 2000) have had the effect of making law without democratic mandate
- Judicial restraint (typically conservative) emphasises deference to elected branches and following precedent (respecting stare decisis), whilst judicial activism (typically liberal) involves making rulings to improve society
- The Court's role in federalism involves balancing federal power against states' rights, with rulings both limiting and defending state authority