The Power of the Supreme The Power of the Supreme CourtCourt Part One:

Public Policy & Judicial Philosophy

Shaping Public PolicyShaping Public PolicyThe justices must The justices must interpretinterpret the the Constitution in regards to the Constitution in regards to the issue issue They must decide They must decide whatwhat the the language meanslanguage means of an act of an actIn a way, justices are In a way, justices are ““makingmaking”” lawlaw when deciding when deciding how it applieshow it applies to actions (not addressed by to actions (not addressed by Congress)Congress)

Ex…

What is the most powerful policy What is the most powerful policy tool?tool?

Tools:Tools:Judicial reviewJudicial review: since has : since has invalidated over invalidated over 200200 federal federal lawslaws and over and over 10001000 state & state & local!local!

-can change the path of a nation -can change the path of a nation (Dred Scott v. Sanford)(Dred Scott v. Sanford)

-can springboard civil rights -can springboard civil rights (Brown v. Board)(Brown v. Board)

Shaping Public PolicyShaping Public Policy

Interpretation of laws (discussed)Interpretation of laws (discussed)Overturning decisions: Overturning decisions: starestare decisisdecisis, setting a , setting a precedentprecedent for for other casesother casesThe law is The law is flexibleflexible and adapts! and adapts!AppointmentAppointment: justices philosophy : justices philosophy similar to Prez.similar to Prez.25% 25% ““straystray””: Warren, Brennan, : Warren, Brennan, SouterSouter

Stare Decisis destructus?

Judicial PhilosophyJudicial Philosophy

Early days, argument was about Early days, argument was about strict constructionstrict construction vs. vs. loose loose constructionconstructionToday it is on activism or Today it is on activism or restraint!restraint!Judicial activismJudicial activism: the courts create : the courts create new legislationnew legislationProponents say the court Proponents say the court shouldshould play a role in play a role in shaping national shaping national policiespolicies and apply to and apply to social issuessocial issues

Judicial PhilosophyJudicial PhilosophyProtection is justices job!Protection is justices job! (Ex: (Ex: look at how long it took to look at how long it took to overturn separate, but equal!)overturn separate, but equal!)Court needs to be Court needs to be watchdogwatchdog

-striking down death penalty cases -striking down death penalty cases for mentally retardedfor mentally retarded

-striking down TX law that banned -striking down TX law that banned flag burningflag burning

- Texas v. Johnson (1988)- Texas v. Johnson (1988)

Judicial PhilosophyJudicial PhilosophyJudicial restraintJudicial restraint: courts : courts should should avoid taking the initiativeavoid taking the initiative on on social & political questionssocial & political questions

Wishes of reps. a high priorityWishes of reps. a high priority

Belief in founders Belief in founders intentintent

Judicial RestraintJudicial RestraintWant to leave the Want to leave the development of development of new policies to othersnew policies to others (2 branches (2 branches & states)& states)

Not responsibilityNot responsibility (areas like (areas like affirmative action, state law)affirmative action, state law)

FacilitateFacilitate, don, don’’t interferet interfere

ex. Courts ruled ag. Constitutional ex. Courts ruled ag. Constitutional right of assisted suicideright of assisted suicide

Dred Scott v. SanfordDred Scott v. Sanford

Nurse, let me die!

(This has also become an issue of federalism!)

What about the debate on What about the debate on weed, I mean, weed, I mean, ““medicinemedicine””??

What if an Act somewhat

violates FEDERAL law?

Should the court STILL not get involved?

Paired Reading:Paired Reading:

Themed Collection Reading: Judicial Themed Collection Reading: Judicial ReviewReview

End of Part 1

Part Two: Trends in the CourtPart Two: Trends in the Court

Which justice most greatly affected Which justice most greatly affected policies of SC?policies of SC?

John MarshallJohn Marshall: credit for setting : credit for setting the course of the young SCthe course of the young SC

Ruled that Ruled that Judiciary Act Judiciary Act was was unconstitutionalunconstitutional

Judicial reviewJudicial review est. est.

Marbury v. Madison: 1803

Justices effecting public policyJustices effecting public policyRoger B. TaneyRoger B. Taney (1836-1864) (1836-1864)

Dred Scott decision set the Dred Scott decision set the course for Civil Warcourse for Civil War

Court also established the right Court also established the right of of prezprez to to take away civil take away civil libertiesliberties in emergency in emergency

(habeas corpus)(habeas corpus) Respect the

“States’ rights”!

The importance of these two justicThe importance of these two justicee’’s decisions:s decisions:

Marshall and Taney: Hippocampus

Justices effecting public policyJustices effecting public policyEconomic issues: (late 1800Economic issues: (late 1800’’s)s)Prior to 1937 Prior to 1937 liberals complainedliberals complained of cons. court being of cons. court being too activist!too activist!Industrial- progressive erasIndustrial- progressive erasTrust-busting,child labor, womenTrust-busting,child labor, women’’s s rights (court had struck down)rights (court had struck down)FDR respondsFDR responds with with Court-packingCourt-packing attempt in 1938 (NOT OK)attempt in 1938 (NOT OK)Courts start accepting ND policiesCourts start accepting ND policies

FDRFDR’’s s ““Fireside chatFireside chat”” to explain to explain court packingcourt packing

Whip around: I will call on one row…What was the crisis argued in FDR’s court-packing attempt?

What other court advances liberal What other court advances liberal ideology? (Hint: 50ideology? (Hint: 50’’s)s)

•Earl Warren CourtEarl Warren Court: 1953-1969

•Overturns separate but equal, expands rights of accused, civil

rights & libertiesNow cons. begin to complain that liberal court is too active!

Warren Burger also activist, but less…

CJ Earl Warren:CJ Earl Warren:

Justices effecting public policyJustices effecting public policy

William RehnquistWilliam Rehnquist: 1986 - 2005: 1986 - 2005

Was the most cons. court in US Was the most cons. court in US history!history!

Reversed some of the earlier Reversed some of the earlier Warren & Burger decis.Warren & Burger decis.

Accused of being too activist, by liberals!

Sandra Day OSandra Day O’’ConnerConner

First female Supreme Court Justice

What has been the direction of What has been the direction of modern Court?modern Court?

Under Under ClintonClinton, , somesome of the of the conservatism was conservatism was reversedreversedAppointment of Ruth Ginsberg & Appointment of Ruth Ginsberg & Stephen BeyerStephen BeyerTurn towards centerTurn towards center““conservative activismconservative activism””??i.e. overturning CA Prop 215 & i.e. overturning CA Prop 215 & Bush v. Gore 2000Bush v. Gore 2000GW Bush/Obama appointeesGW Bush/Obama appointees

Newer Justices:Newer Justices:

Under Bush:

Under Obama:

John RobertsSamuel Alito

Elena Kagan Sandra Sotomayor

In the news: Reverse In the news: Reverse Discrimination. What is it?Discrimination. What is it?