Has the Supreme Court become too powerful?
Judicial review
Conservative viewpoint: has become quasi-legislative
• The Court – as a result of the growth of judicial review – has become a “quasi-legislative body”
(Bennett) and thus has becoming increasingly politicised, especially when it has overruled
congressional legislation and past precedents on divisive issues:
o E.g. Roe v. Wade (1973), where abortion was legalised, under the loose interpretation of the
right to privacy in the Constitution – the Court effectively redefined the Constitution
• Scalia has complained that the Court has “super legislative power”
• Through this, the Court has arguably replaced Congress as the primary legislative branch, further
politicising it
Liberal viewpoint: judicial activism is justified
• Judicial activism – contextualism and socially desirable legislation
o Loose constructionists argue for contextualism and the ‘living constitution’ –
noninterpretivism (as coined by Michael Perry), which is where the nature of the Constitution
should be interpreted using criteria other than its original wording, effectively by value
judgements, that help relegate the Framers back to their distant time – it is “more conducive
to the modern recognition and evolution of human rights” (Perry)
o The partisan Congress may be unwilling to initiate certain pieces of legislation that are
deemed socially desirable, and, without judicial activism, this legislation may never have
been passed e.g. Brown v. Topeka and Charlotte v. Mecklenburg – thus, the Court can
overcome the legislative sins of both omission and commission, and can act as a catalyst
for the nation’s moral evolution, that typically lags in Congress
• Growth in partisanship has undermined the legislative role of Congress
o There needs to be a strong judicial branch to circumvent the polarised Congress and the
‘deadlock of democracy’ and assume the role of the legislative branch
o “Judicial power has been expanded by default in response to the institutional failings of the
elective process, the legislative and executive branches, and political organisations” (Van
Patten, 2014)
• Money has undermined the legitimacy of Congress, and thus people have turned to the Court
o “The reason that people go to the court rather than to the political processes to get the law
changed is that the courts are cheaper” (Neely)
o Court’s are able to rule on issues in the greater public interest, whereas Congress is
“bogged down by special-interest legislation” (Neely)
• Ultimately, Richard Neely, in How Courts Govern America concluded that judicial activism is
justified, as the court will pass socially desirable legislation that isn’t subject to lobbying by special
interests, and most importantly, it is a way of holding the government to account – he argues that
judicial activism works because of the three branches, the Court is the least partisan and most
impartial
The court is unelected
Conservative viewpoint: unaccountable and should adhere to judicial deference
• They are unelected and thus unaccountable once appointed, and are not subject to the same
checks that the state courts are (20 states have elections, and 18 more have retention elections) –
only when ‘good behaviour’ is breached do they get impeached, but this has never successfully
occurred
• Judicial restraint and deference – originalism and interpretivism
o The Court should be deferential to the other branches of government
o Precedent should be binding and the court shouldn’t have any influence over the Constitution,
unless in extreme situations
More powerful than the Framers intended
Conservative viewpoint: the Framers saw them as a deferential branch:
• Judicial review isn’t in the Constitution, and the Framers intended for the judicial branch to be ‘the
least dangerous’
