Module Introduction

Many are of the opinion that if the Framers were alive today, they would not recognize the national government they created. Nowhere does this statement rang truer that in the federal judiciary itself. Fashioned to be the “least dangerous” among the three branches, the federal judiciary, in particular, the United States Supreme Court, has morphed into a powerful, legal instrument hardly discernible against its original intent. ⁽¹⁾

With “no influence over either the sword (Executive Branch) or the purse (Congress),” the judiciary branch was proposed as the weakest of the three branches; though this presupposition of the judiciary, by Alexander Hamilton, would not last long ⁽¹⁶⁾Following the Court’s establishment in 1788, the Supreme Court proved its equal footing with the other branches of government. Indeed, in its adjudication of ⁽¹⁾ Marbury v. Madison (1803) , ⁽⁶⁹⁾ the Court exercise its right to judicial review, that is, its right to review the acts of the executive and legislative branches of government for constitutional compliance. This right to review would later be applied to the states in the landmark case ⁽¹⁾ Fletcher v. Peck (1810) ⁽⁶⁸⁾ wherein the High Court ruled its first state law unconstitutional. In this way, with command over national and state laws, the actions of the Court through the years have raised eyebrows over its role in what some have deemed the weakening of American democracy. How so?

Judicial activism and judicial restraint play a significant role in the Court’s decision-making protocol. Both concepts involve the notion of judicial review; though, it is the frequency of such that remains controversial in American politics. For instance, the concept of judicial activism holds that the Court has both, the right and an obligation, to engage in judicial review, particularly as it relates to the defense of political minorities. On the other hand, judicial restraint advocates for the limited and infrequent use of judicial review, owing this line of thought to the elected status of federal judges, or the lack thereof. Because federal judges are appointed and confirmed to lifetime tenure, it is the position of some that unelected judges, via judicial review, should not be able to overrule laws passed by elected representatives. The reasoning, here, is, perhaps, the most undemocratic aspect of the Supreme Court’s existence.

Still, the historicity of American politics points to the deepening of democracy via the Courts and its right to judicial review. Indeed, the Supreme Court’s willingness to engage in judicial review, and often, has paved the way for advances in individual rights in liberties. From the selective incorporation of the Bill of Rights to the individual mandate for healthcare, the Supreme Court, at present, remains the possession of we the people . ⁽¹⁾