Composition & Judicial Activism vs Restraint

What are the roles of the Supreme Court?

• significant decisions

• changes to public policy

• they are the fabric of American society

Nature of the Supreme Court

• historically politicised

• historically partisan

• male dominant - underrepresentation

• ideologically driven - should be imparting the law

• makeup varies - judges and ideologies change over time

Liberal justice

• less strict interpretation of the Constitution

Conservative justice

• strict and literal interpretation of Constitution

Swing justice

• judge who often holds the decisive casting vote in a 5-4 split

Originalism

• justice who interprets the constitution in line with the framer’s intent

Loose constructionists

• see Constitution as a ‘living document’

• Focus on the spirit of constitution

Strict constructionists

• believe the court should not create laws

What do these terms reveal about the nature of the division?

• reveal the ideologically driven nature of the Supreme Court

• there is division

Judicial activism

• broad interpretation giving more freedom and social change

Examples of ‘conservative’ judicial activism

• Bush v Gore (2000)

• DC v Heller (2008)

Examples of ‘liberal’ judicial activism

• Brown v Board (1954)

• Roe v Wade (1973)

• Obergefell v Hodges (2015)

What do the two types of judicial activism reveal?

• there is division

Judicial restraint

• originalist interpretation favours following what the original framers of the Constitution meant

Examples of ‘liberal’ judicial restraint

• Lawrence v Texas (2003)

• Roe v Wade (1973)

• Griswold v Connecticut (2015)

Examples of ‘conservative’ judicial restraint

• United States v Lopez (1995)

• DC v Heller (2008)

• King v Burwell (2015)

Positive features of the Court

• uphold constitution

• protect rights

• checks and balances

Imperial judiciary

• cout becomes too powerful through judicial review and impact on public policy

Stare decisis

• the idea that once a court has decided a legal issue, its decisions should guide decisions in the future