Discuss the view that the power of the Supreme Court cannot be justified in a
The Supreme Court: Functions of judiciaries;
Membership, appointment process and issues of judicial review; accountability and
democratic control. Theories of judicial activism and restraint.
The supreme Court is the head of the judicial part of Government in the USA, it acts as an appellant court which can also on occasion deal with ambassadorial and diplomat cases. It is separate from the other 2 branches of government in order to remain independent and provides a powerful check on those branches. However it has been criticised by being called democratically ...view middle of the document...
Secondly in 2010 the court ruled that corporations could not be limited in spending during elections are they had the right to free speech as well (Citizens United vs the FEC (Federal Electoral Commission). President Obama publicly disagreed with the decision but could not change it. The President decides on nominations who are then put under scrutiny while he receives the ‘advise and consent’ of the Senate judiciary committee. There is therefore a small democratic link however it is very weak. Once a Justice is appointed they cannot be removed and are independent of the other political bodies this can be evidenced by Eisenhower’s appointments, a Republican conservative who appointed 2 liberal justices, something he regretted so much so that when asked if there were any regrets after his time in office he replied “I have made two mistakes, and they are both sitting on the Supreme Court”. As stated before the judiciary is independent and once Supreme Justices are appointed they cannot be fired or dismissed this leaves a huge deficit of accountability, a key factor of democracy.
In order for the Supreme Court to be democratically legitimate should be both politically and socially representative. In a diverse country such as the USA it’s extremely difficult to be politically representative however the Court is even less socially representative. There is currently and has only ever been 1 member of the supreme court who is of Hispanic origin compared to the approximately 17% of the population. Furthermore the court doesn’t have a proportionally similar religious make up either with 6 jews and 3 catholics. This is vastly different to the majority of America with no representation for protestants or atheists.
However as the founding fathers designed a system of government with checks and balances, this has meant that there are also restraints on the Supreme Courts power. It is first and for most an ‘appellant’ court. This means that it deals for the most part with cases who decisions have been contested at a lower levels of the US justice system.This limits the courts most significant power as ‘arbiter of the constitution’ as it can only give rulings on cases brought before it. This is best shown with the 2004 Elk Grove Unified School District vs Newdow. . Michael Newdow felt that the words "under God" in the Pledge of Allegiance are an endorsement of religion and therefore violate the Establishment Clause of the First Amendment to the United States Constitution. The Supreme were going to have to create a ruling on this issue which many commentators believed would be with Newdow however he lost custody making him unable to bring the case to the supreme court as his daughters education was no longer seen as his concern.
When discussing the Supreme Courts powers, its ideological stance must be taken into consideration. The last 50 years has seen the court move from one which believed in judicial activism to one which now practices more...