Power to Make Policy
Justices have the power to reinterpret the law or the Constitution in significant ways. They can extend the reach of existing laws to include issues not previously covered. The court can order remedies for problems that come before the court. A remedy is a judicial order stating what must be done to correct a situation. The court imposes this remedy. This is controversial because it means that justices are administering laws, or acting as a legislature, rather than reviewing and interpreting law.
Supreme Court Justices, by custom, write an explanation and justification of their constitutional approach to the decisions they make–Originalist Approach (Strict Constructionist Approach) or Adaptive Approach (Activist Approach). Make a compelling case explaining and critically defending the approach you favor.
Power to Change Their Decision
The justices have the power to change their minds on an issue. There is an informal rule known as stare decisis (let the decision stand) or precedent. This means that a case before the court today should be settled in accordance with cases of a similar nature. The question is what qualifies as a similar case? Precedence is very important for two reasons:
- If the law is going to change from one day to the next, why would people follow it?
- Equal justice means that the law is predictable because similar cases are decided in a similar manner.
- Common Law would not exist without legal precedent. It is the most important concept in the Common Law tradition.
Judicial activism is Supreme Court justices taking a very energetic view of overturning legislation. Activists believe that the Constitution is an ambiguous “living,” evolving document that requires justices to apply current customs and ideas to their interpretation of the Constitution. Increasingly, the court is willing to hear and decide political questions. These are matters that the Constitution leaves for another branch to decide. The judiciary was meant to interpret law, not make it. This is very controversial. Supporters of activism argue that the court must correct injustices if other branches or the states fail to do it.
The Founding Fathers explained every point in the Constitution, often quite specifically, in the Federalist Papers. These were written to explain all aspects of the Constitution to voters so they could understand what they were asked to ratify. Those favoring Judicial Restraint argue the Supreme Court should be reluctant to interfere and change what elected branches of the government decide. The court should only be involved in the democratic process as a last resort. Those who favor Judicial Restraint point out nine justices have no special expertise in many areas—they are lawyers. Federal judges are not elected—they are appointed and therefore they are immune to any popular control and become unelected legislators.
- Supreme Court Justices, by custom, write an explanation and justification of their constitutional approach to the decisions they make–Originalist Approach (sometimes called Strict Constructionist Approach or Judicial Restraint) or Adaptive Approach (sometimes called Activist Approach or Legislative Approach).
- Read The Originalist Perspective by David F. Forte http://www.heritage.org/research/reports/2009/09/the-originalist-perspective
- Read Justice Ruth Bader Ginsburg Talks About Judicial Activism http://blog.constitutioncenter.org/2013/09/justice-ruth-bader-ginsburg-talks-about-judicial-activism/
- Make a compelling case explaining and critically defending the approach you favor.
- Write a one page response (double-spaced, typed in 12 point font) in support of the constitutional approach you favor.
- Consult How to Write a One Page response found in the Course Documents menu of Blackboard to help draft your response to this assignment.