An A* essay evaluating the political role of the Supreme Court in the US and UK for the Comparative (US) Politics paper of Government and Politics A level.
“Both the Supreme Court of the USA and its UK counterpart have become political
institutions.” Analyse and evaluate this statement.
It can be argued that the Supreme Court in the US has become a political institution because
of the way in which they rule on important areas of public policy that are inevitably
politicised in cases of judicial review, which is often voted on along party lines. Similarly, in
the UK the Supreme Court has arguably become a political institution mainly because of the
way in which they also practice judicial review and rule against the government in ultra vires
cases. Conversely, it can be argued that the US Supreme Court is not an overly political
institution, because many judges practice judicial restraint and rightfully interpret the
Constitution so that it can be applied in contemporary society, whilst the UK Supreme Court
is arguably not that politicised either because they have no power of enforcement and
ultimately Parliament are more powerful due to the concept of parliamentary sovereignty.
Firstly, the US Supreme Court can be seen as a political institution, because they have made
landmark decisions that set the precedent for all of the other courts across the USA and
crucially determine political outcomes. The landmark case, Marbury v. Madison (1803) could
be perceived as the decision catalysing the Supreme Court’s establishment as a political
institution because it was the first instance the Court struck down an Act of Congress as
unconstitutional. From this ruling, the Supreme Court derived their power of judicial review;
the power to rule against state or federal law on the basis of them being unconstitutional
and derogate them, which was not a power directly referenced and bestowed upon the
Supreme Court in the US Constitution. Thus, some people would argue that the fact the
Supreme Court - an entirely unelected institution - essentially granting themselves the
power to challenge legislation passed or proposed by the elected bodies of the Executive or
Legislature, is rather undemocratic. For example, the Supreme Court made the highly
controversial decision in Bush v. Gore (2000) which decided the outcome of the presidential
election. As expected, the 4 liberal justices voted for the recount in Florida while the 5
conservative justices voted against the recount so that Republican candidate, Bush, won by
a small margin in Florida and consequently won the general election overall which most
likely was the politically driven motive of the conservative justices voting to halt the
recount. It can be argued that it is unfair and undemocratic that the Supreme Court’s vote
that was evidently of a politicised nature being along ideological lines should singlehandedly
decide the result of a presidential election that is supposed to be a democratic process
solely in the hands of the people, not a potentially political institution. Judicial activism
commonly runs the risk of judges imposing their personal political beliefs onto their
interpretation of the Constitution, especially if they are loose constructionists and believe in
adapting the Constitution to modern life, such as cases like Roe v. Wade (1973) which
upheld the equal protection clause of the 14th Amendment and made an interpretive
amendment that protected women’s right to an abortion in all states, undermining state
law and power, and was arguably politicised because of the involvement of interest and
pressure groups, in this case pro or anti-abortion groups, lobbying the court through amicus
curiae briefs. Alternatively, this could be seen as a strength because it is an example of the
Supreme Court upholding the civil rights of marginalised groups of society by giving women
autonomy over their own bodies and reproductive system which was not explicitly
addressed in the Constitution considering its vague nature and the misogynistic attitudes
within the strongly patriarchal society at the time the Founding Fathers were alive. Justice
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