26 Section 2.3: The Policymaking role of the Supreme Court

The Supreme Court of the United States has an extremely important policymaking role, and this has an enormous impact on the criminal justice system. As discussed in a previous section, the Supreme Court has the power of judicial review. This power was first exercised in the landmark case of Marbury v. Madison, decided in 1803. In that case, the Court struck down a statute that it considered “repugnant to the Constitution.” This case served as the precedent for judicial review, and the Supreme Court has exercised the power ever since that time. Judicial review, then, is the authority of the Supreme Court to review the acts of Congress, and determine if those acts meet the standards set forth in the Constitution. It is interesting that the power of judicial review was never directly vested in the court in the text of the Constitution. The Court (in the Marbury v. Madison decision) inferred the power for itself.

Recall that the Supreme Court has the judicial power to interpret the law. This provides yet another method for the Supreme Court to make criminal justice policy. The Due Process Clause has proven very important in the Court’s shaping of policy through this power. What exactly constitutes due process is extremely vague, and when the Court decides whether something is required by due process, they are in effect making policy. The evolution of police procedure during the Warren Court years is an enduring example of this policy-making power at work.

In theory, Supreme Court justices should practice what constitutional scholars have called judicial modesty. Judicial modesty refers to the idea that justices should only strike down acts of the legislative branch when those laws are in direct conflict with a constitutional provision. There has been a historical trend of judicial self-restraint among at least some justices. These justices feel that policy is best left in the hands of the legislative and executive branches. Striking down a law merely because a majority of justices disagrees with the legislature is wrong under this doctrine. The way our system functions, there is nothing to stop the justices from doing this. Other justices take the position that the court should be active in cases of civil liberties and civil rights. When it comes to allowing political agendas enter into the judicial decision-making process, the justices must police themselves.

Political Tendencies

Supreme Court justices, in theory, sit in order to interpret the law. This interpretation is, in reality, filtered through a political lens. No matter how well-meaning these justices may be, their perceptions of what is right in wrong in the law is impacted by their personal political beliefs. While there are always individual differences, a common way to divide the political leanings of the court is to use the terms liberal andconservative to describe both individual justices, the court in general, and particular decisions. Illustrations of liberal decisions are decisions favoring criminal defendants, people claiming discrimination, and those claiming violations of civil rights. Decisions that appear to favoring police, prosecutors, and other governmental entities are said to be conservative.

Currently, the Supreme Court as a clear cluster of four judges that consistently vote liberal, and another cluster of four justices that vote conservative. Justice Anthony Kennedy sits right in the middle of the political spectrum, and is the “swing” vote that makes predicting the outcome of Supreme Court decisions very difficult.

Not all liberal justices are equally liberal. In the 2013 term, Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan cast liberal votes 70 percent of the time. While still left leaning, Justice Stephen Breyer is substantially more conservative than his female counterparts.

  Judicial Activism versus Judicial Restraint

There are two major vantage points from which to regard the work of the Supreme Court. The first is that the constitution should be interpreted as it is written. A second is that the Constitution must be interpreted in the context of modern life and modern problems. The is debate has been characterized as one between judicial activism and judicial restraint. Judicial activism represents the idea that the court should actively seek to right wrongs that other branches of government actively promote or will not do anything about. The majority of justices on the Warren Court were known as judicial activists. These justices believed that the court should take an active role in ensuring the civil rights of all Americans. Judicial restraint, on the other hand, is the idea that the democratic process should direct changes in policy. That is, policy should be set by legislative enactments that represent the will of the people. Advocates of judicial restraint commonly argue that since Justices are appointed rather than elected, they are not the proper body to make policy changes. Note that while the Warren court was liberal in its judicial activism, that court’s example should not lead to the conclusion that activism is always liberal. The reality is that there will always be a tug of war between a strict constructionist view of the constitution and the dynamic body of ideas envisioned by extreme judicial activists. The reality of an evolving society utilizing evolving technology dictates that the Constitution be somewhat dynamic. The modern history of the Fourth Amendment demonstrates this. A literal interpretation of the constitution would indicate that your phone calls, texts, and emails are all subject to “seizure” by the government without a warrant. Those things did not exist when the Fourth Amendment was written, so they could not be protected. The fundamental question that remains is one of striking a balance between nullifying the democratic process and not allowing the Constitution to remain relevant over time.

The legal framework that judges work within limits judicial activism to some extent. Before a federal court can hear a case, certain conditions must be met. Under the Constitution, federal courts exercise only judicial powers. This means that federal judges may interpret the law only through the resolution of actual legal disputes, referred to in Article III of the Constitution as “Cases or Controversies.” A court cannot attempt to correct a problem on its own initiative (unless it has to do with the rules governing the court systems), or to answer a hypothetical legal question. Second, assuming there is an actual case or controversy, the plaintiff in a federal lawsuit also must have legal standing to ask the court for a decision. That means the plaintiff must have been aggrieved, or legally harmed in some way, by the defendant. Thus, organizations such as the American Civil Liberties Union cannot sue the police directly, but they can fund legal assistance for a party that actually alleges harm done by the police. In addition, the case must present a category of dispute that the law in question was designed to address, and it must be a complaint that the court has the power to remedy. That is, the court must be authorized, under the Constitution or a federal law, to hear the case. For example, if there is no substantial federal question, the Supreme Court cannot review a case originating in state courts. In addition, the case cannot be moot. A case is moot if it does not present an ongoing problem for the court to resolve. The federal courts, thus, are courts of limited jurisdiction because they may only decide certain types of cases as provided by Congress or as identified in the Constitution.

Even with these limits, the policymaking role of the Supreme Court should not be underestimated. The rulings of the court are just as consequential as acts of congress and the executive decisions of the president. Many times, the ruling of the court is not based merely on a literal reading of the law. In many cases, the justices are invoking their own interpretations of what the law should be, and not what it objectively is.

Key Terms

American Civil Liberties Union, Article III, Conservative, Conservative Decisions, Judicial Activism, Judicial Restraint, Justice Anthony Kennedy, Justice Elena Kagan, Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor, Justice Stephen Breyer, Liberal, Liberal Decisions, Limited Jurisdiction, Marbury v. Madison (1803), Moot, Right to Counsel, Standing, Warren Court


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