Race and rights in contemporary US politics (OCR A-Level Politics): Revision Notes

20.6.1 The political versus judicial nature of the Supreme Court.

Appointment Process

Politicized Aspect:

• Increasing Partisanship: Supreme Court appointments have become highly politicised, with partisan considerations influencing nominations. Key examples include:
  • Merrick Garland vs. Amy Coney Barrett: Garland's nomination was blocked by the Senate, whereas Barrett's appointment was expedited just before the 2020 election.
  • Brett Kavanaugh: Confirmed with a narrow 50-48 vote largely along party lines, showcasing the growing partisanship in confirmation votes.
  • Impact of Conservative Appointments: Trump's appointments of three conservative justices, including Barrett, led to the overturning of Roe v. Wade, illustrating how political motivations can affect the Court's decisions and societal norms.

Judicial Nature:

• Extensive Vetting: Despite political influences, the appointment process involves detailed scrutiny of judicial philosophies and past rulings:
  • Ketanji Brown Jackson: Her nomination involved a thorough examination of her judicial record, focusing on her qualifications rather than just political alignment.

Judicial Activism

Political Aspect:

• Influence of Political and Personal Views: Judicial activism arises when rulings reflect personal or political biases rather than strict legal interpretation. Examples include:
  • Warren Court Era: Landmark decisions like Brown v. Board of Education and Miranda v. Arizona advanced civil rights and liberties.
  • Recent Conservative Activism: Decisions such as Columbia v. Heller and Citizens United v. FEC showcase a shift towards conservative interpretations, including the recent overturning of Roe v. Wade.

Judicial Nature:

• Judicial Restraint and Originalism: Some argue that recent decisions reflect a return to judicial restraint or originalism:
  • Dobbs v. Jackson Women's Health Organisation: Overturned Roe v. Wade based on an originalist view, reflecting judicial restraint.
  • Obergefell v. Hodges and Bostock v. Clayton County: Illustrate judicial restraint by interpreting the Constitution as written.
  • Riley v. California: Expanded privacy rights to modern technology, showing judicial activism as necessary to address gaps in legislative policies.

Political System

Political Aspect:

• Impact on Policy and Agendas: Supreme Court decisions can significantly impact political agendas and public policy:
  • Biden's Student Loan Forgiveness Plan (2023): The Court's decision to strike down this plan halted a central part of Biden's domestic policy, reflecting the Court's political impact.

Judicial Nature:

• Role in Adjudication: The Supreme Court's primary function is to uphold and interpret the Constitution:
  • Trump's Disqualification Case (2023): The Court's unanimous decision to allow Trump to run for office demonstrates its commitment to constitutional principles over political influence.
  • Check and Balance: The Court's role in ensuring executive compliance with the law involves political ramifications but remains focused on constitutional adjudication.

Interpretative Approaches: Living Constitution vs. Originalism

Living Constitution:

• Evolving Interpretation: This approach suggests the Constitution should adapt to contemporary society, supported by its broad and flexible language:
  • Obergefell v. Hodges: Used the 14th Amendment to legalise same-sex marriage, reflecting modern views.
  • Roe v. Wade: Initially expanded privacy rights to include abortion.
  • Riley v. California: Applied the Fourth Amendment to modern digital technology.

Originalism:

• Fixed Meaning: Originalism argues for a fixed interpretation of the Constitution based on its original meaning and the intent of the framers:
  • Citizens United v. FEC: Interpreted the First Amendment to protect corporate speech.
  • Dobbs v. Jackson Women's Health Organisation: Overturned Roe v. Wade, arguing that the Constitution does not guarantee a right to abortion.
  • Justice Clarence Thomas: Known for his originalist approach, focusing on historical context and framers' intent.