The Supreme Court, the highest court in the American judicial system, is one of the three branches of the US national government. In 1803, a mechanism was put in place to ensure that governmental officials and governmental institutions would respect the limitations prescribed in the "Supreme Law of the Land". Hence, with the Marbury v. Madison case, John Marshall, the fourth chief justice established that the Supreme Court, in addition to the power of judicial review of legislation, has to determine the meaning of the Constitution in order to enforce its Supremacy. However nowhere in the Constitution could reference be found to an institution which should resolve conflicts between the Constitution and the ordinary law when they occur! The Framers of the Constitution wanted to establish a Supreme Court that would be powerful enough to protect the rights of the people against the tyranny of the government but, as Hamilton argued, the Court would be the weakest of the three branches of government. Alexis de Tocqueville however, in ?Democracy in America' already noticed that in the US, political and social issues are often translated into legal questions to be decided by the courts (Barnum, 1994). Hence, the Supreme Court was granted with the power to interpret the Constitution and has become increasingly powerful over the years. Nowadays it is a truly co-equal branch of the American government and enjoys a worldwide reputation for independence and activism which can even decide the outcome of a presidential election. As a consequence we can legitimately wonder if the Supreme Court is a major political actor in the American democracy.
[...] The political role of the Supreme Court The Supreme Court as a judicial institution with substantial policy-making responsibilities is regularly confronted with important and controversial issues of American public policy that make it a fundamental political actor in the federal government. Often accused of judicial activism, it seems however that the Court is a self restrained institution. The myth of judicial activism Judicial activism refers to a Supreme Court decision reflecting the Justices' political preference rather than reflecting the plain meaning of the Constitution. [...]
[...] Judicial self restraint The Supreme Court's reputation for judicial activism appeared in the 1960s under the Warren Court which exercised its power of judicial review more than a Court ever did before and almost exclusively in cases involving civil liberties. But far from protecting minorities against the tyranny of the majority (their primary goal), courts for most of American history have tended to reflect the constitutional views of majorities, following the national opinion rather than challenging it (another recent example is the so called Shiavo case (Cf. [...]
[...] of the federal government before examining in which measure the American Supreme Court is a political actor. The weakest branch of the federal government Analyzing the links between the different branches of the government and the appointment process is the starting point for understanding the decisional process of the Supreme Court's Justices. Links with other branches of the federal government The Congress possesses numerous means to control the Supreme Court. The latest has to play a highly political game when deciding the outcome of a decision, because the sole cooperation with the other branches of the government can assure the implementation of its decision. [...]
[...] There is no doubt that in practice; the noncooperation of the political branches can seriously weaken the force of the Supreme Court. But rather than these restrictions, a better way to influence the outcome of the Supreme Court is by appointing new justices. Protection and appointment of the Supreme Court's justices Few institutions in American democracy apart from the Supreme Court possess as much political power constitutional decision of the Court can only be reversed by amending the Constitution itself), while simultaneously enjoying as much political independence and job security. [...]
[...] Sandford (1857) is a historical case of judicial activism and the example of how a Supreme Court decision can be ignored by the other branches (in this case, President Lincoln in particularly) when they do not respect the view of the majority and tried to resolve without sustain the intense and unsolved constitutional dispute about slavery. More recently the Court passed several politically controversial decisions, as 1962 with Engel v. Vitale and in 1963 in School district of Abington Township v. [...]
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