Interpretations & debates of the US Supreme Court & civil rights

Appointments have become even more political

Senate Majority Leader Mitch McConnell imposed on appellate court confirmations the moment Republicans took over the Senate. McConnell’s effort to block Supreme Court nominee Merrick Garland is well-known. Less well-known are the many lower court nominees who received similar treatment. Under Trump, McConnell has turned the Senate into a machine that churns out judicial confirmations and does little else — he’s ignored hundreds of bills passed by the House. Under Obama, by contrast, McConnell’s Senate was the place where judicial nominations went to die 

The Appointment process for the Supreme Court

The extent of Supreme Court power

The most significant power of the court is judicial review, the ability to declare both state and federal laws, and the actions of other branches of government, unconstitutional. This effectively gives the court the power to revise the constitution, and become, as Wilson famously said, a 'constitutional convention in continuous session'.

·    The other two branches check the court less than they check each other. The court's rulings can be reversed through a constitutional amendment but, given the difficulty of the process, it is unsurprising that only four decisions have been reversed in this way. There have been reversals by the court itself, for example Brown reversed Plessy, and Lawrence reversed Bowers but, since they hardly bolster faith in the court's judgement, they are only carried out reluctantly. In cases where interpretation of congressional law is at issue, Congress can reverse a decision itself through passage of new legislation; for example, Ledbetter v Goodyear was reversed by the Equal Pay Act of 2009, the first legislation signed by President Obama.

·      Since they are appointed for life, and not accountable to either an electorate or any other institution for their decisions, justices are in theory completely insulated, from public opinion in particular.

·      As the range of government activity has expanded, the court's jurisdiction has extended to an increasing proportion of national life; in nearly 170 years from 1787 until 1954 the Supreme Court overruled 77 federal laws, but since then it has already overruled more than 80.

·      As de Tocqueville remarked in the nineteenth century, 'Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question'; the litigious nature of American society means that there are few issues which do not become the subject of court cases

 Rulings can be seen as amending the constitution by interpretation such as Obergefell, which established a principle of same sex marriage  not mentioned directly in the Constitution.

Is the court's power to do good, a myth?

A'hollow hope'?

Some have argued (for example, Gerald Rosenberg in The Hollow Hope) that the failure of Brown in bringing about desegregation of schools, and its relatively minor role in the wider Civil Rights movement, suggests that the Supreme Court is far from the 'imperial judiciary' that its opponents depict. Likewise, Roe v Wade may only have been one factor in the expansion of abortion rights, and has not necessarily been a positive factor in their retention. By the early 1970s, the climate around abortion was changing, before Roe was decided. The number of abortions was already increasing, and several states had already reduced their restrictions on abortion. The impact of Roe was then subsequently limited by executive and legislative action, such as the Hyde amendment which was reaffirmed by President Obama in 2010. In many states, abortion provision is now so limited that it is hardly any better than if Roe had never happened; the controversial nature of the decision in Roe galvanised opponents, and it could be argued that a more incremental, state-based approach would have been more successful in advancing the cause of abortion rights.

These links explore the debate about the Supreme Court's influence in the New York Times

Has the Supreme Court done more harm than good?

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more good than harm?

The political versus the judicial nature of the Supreme Court

Guardian Article The Supreme Court is  illegitimate 

Case Study: The  Federalist Society and the Supreme Court 

Dissenting Opinions are letters to the future 

The Supreme Court has long been accused of acting like a political rather than a judicial body, with justices being described as politicians in disguise. Its very nature as a constitutional court, with a sovereign entrenched constitution, means that it is inevitably caught up in the political process. The Citizens United case, for example, had a clear political impact, overturning a congressional law and allowing more money in elections, increasing the impact of corporate donors. Some have accused the judiciary of using the power of judicial review when it was not constitutionally given and attempting to use this power to achieve their own policy goals. Unrestricted by the Constitution, an `imperial judiciary' has developed in which justices are largely unconstrained.

It is certainly true that the Court’s power of judicial review gives it a quasi-legislative power

This is because many of the Court’s decisions have almost the same effect as if a piece of legislation had been passed. In the UK, policy matters such as abortion rights, the death penalty and gun control, for example, are decided by Parliament. In the USA, they are settled largely by the Supreme Court. The quasi- legislative power of the Court is seen particularly in decisions which are authored by loose constructionist judges — those who read things into the wording of the Constitution, who, in the view of their critics, ‘legislate from the bench’. The Court’s power of judicial review does give this institution an especially important role in protecting  rights and liberties. It also gives the Court the power to say exactly what they mean in today’s America. It allows, for example, the Court to interpret the right of free speech in the age of the internet and Twitter. It has allowed the Court to extend the rights of racial minorities and women as society’s understanding of those rights has evolved. It has even allowed the Court to lead where both Congress and the president have been either unable or unwilling to move.

But this role is relatively recent and before the 1950s the court did more to harm civil rights than protect them. It was the Supreme Court that for almost a century after the Civil War kept African-Americans in segregated schools by the principle of separate but equal.  Liberals would now point to attacks on democracy in the Citizens United decision and the failure to end gerrymandering and voter suppression. 

Politics Review Article Robert Singh:A political, not a judicial, institution? 2015

Shadow Dockets An example of the Supreme Court's lack of accountability and political bias.

Living Constitution ideology versus originalism

Originalism

Justices may interpret the Constitution based on the intended meaning of the authors of the Constitution, or on what the average person would understand as the meaning at the time of writing. J

This approach is associated most closely with Justice Thomas, who often cites not only the values of the Founding Fathers but also the values of the people in US society at the time of writing. In 2011 he dissented in a 1st amendment case that struck down a California law regulating violent video games for minors, because minors were not seen by 18th century society as having 1st amendment rights. He argued: 'The practices and beliefs of the founding generation establish that "the

freedom of speech", as originally understood, does not include... a right of minors to access speech without going through the minors' parents.'

The Living Constitution

Strict and loose constructionalism 

This approach is ague that the constitution must evolve to meet the demands of a changing society. In part, this is based on a view that the Founding Fathers intended the Constitution to be an organic or living document. The Living Constitution approach, or loose constructionism, recognises the practical difficulty of applying an originalist position. What did the Fathers think about video games or mobile phones? It can also be based on the idea that originalism may yield unacceptable rulings in modern society. For example, it may have been acceptable in the past for the president to consult Congress before military action. The advent of nuclear missiles and jet engines may make such requirements less palatable. One majority opinion of the Court has asserted the necessity of the Court to 'draw its meaning from the evolving standards of decency' in applying the vague 8th amendment. The Living Constitution approach tends to ignore the practice of stare decisis in which court rulings are based on precedent. The use of stare decisis would restrict the Living Constitution approach.

The Supreme Court and public policy