essay: evaluate the extent to which the Supreme Court is now an 'imperial judiciary'

introduction/judgement:

• imperial definition: an all powerful judiciary on whom checks and balances are weak and ineffective

• S.C. established by article III of the Constitution, at top of federal court system, housing nine unelected justices with gift of life tenure

• power stems from judicial review: 1803 Marbury v Madison & 1810 Fletcher v Peck

• judiciary is imperial as, although it may not be able to enforce rulings, the rulings made are distinct interpretations of the Constitution, which is binding in itself, and defines the American legal world for extended periods, even before reversals

p1: it is not imperial because of principle of stare decisis which limits its power

• stare decisis » to stand by things decided: court is bound to follow previous decisions which acts as an unofficial check on its power, restricting ability to become quasi-legislative

• eg: Roberts court bound to decisions of Warren and Burger courts because of stare decisis such as 1763 Roe v Wade not being overturned in Roberts court despite Conservative majority who are typically pro life

• cases are protected by precedents set by stare decisis, of some significance as as it is an effective restraint on the unelected justices as they cannot simply rule on their beliefs if a precedent has been set preventing an ideologically active court from overturning precedents

  • however, principle willing to be overruled --> Amy Coney Baer senate judiciary hearing where she indicated Roe v Wade not a super precedent so stare decisis overruled?

• cp: the court is imperial as it is an unelected and unaccountable branch which is willing to overrule the elected branches of government

  • court can easily strike down laws made by the executive or legislature overruling those with a democratic mandate to implement law

  • e.g. 2016 US v Texas ruled Obama's executive order of DAPA unconstitutional

    • DAPA = Obama Administration plan to help qualifying illegal immigrants avoid immediate removal n find a chance to apply for residency

  • clearly imperial as although other branches given a mandate by the popular vote to govern this can be bypassed by a branch that is unelected and has no checks or balances + executive and legislature have no power to overrule their overrulings

p2: not imperial as restrained by wording of the Constitution

• limits the extent to which justices can interpret even ambiguous parts especially during judicial restraint

• especially in terms of strict constructionists: only make judgements from original 7000 words, which in judicial activism restricts power regardless of personal beliefs

• eg: Snyder v Phelps 2011, 8:1 first amendment (freedom of speech/religion/assembly etc) upheld over right to privacy

• many liberals sympathised with disturbance of funeral but fundamentally had to uphold the order of the Constitution

• shows not imperial as not able to act out of Constitutional lines = cannot act freely

• cp: is imperial as there are a lack of checks on power and is independent from pressures allowing it to abuse power without repercussion

  • many aspects of the court is unchecked

  • e.g. difficulty of Constitutional amendments only seen once 16th amendment overturned

  • so hard because require huge bipartisanship and large majorities which is not possible with the polarisation of American politics

  • no check on justices apart from impeachment which has only been used 1x in 1805

  • lack of checks allows to exercise vast amounts of power with little restriction

  • clearly imperial as mechanism for control is so cumbersome it is ineffective + despite being talk of reform 2021 Biden Commission for court reform this is not concrete

p3: not an imperial judiciary as they have no power to enforce their rulings

• lack of power to enforce e.g. Shelby county v Holder attempting to give states the responsibility of protecting voter rights however lack of enforcement shown through 2020 election where polling stations deliberately closed to prevent minorities from voting

• not imperial as enforcement of decisions is dictated by elected branches of government diminishes idea of imperial judiciary

• cp: the court is imperial as it holds and actively uses the power of judicial review

  • allows court to rule on any case regarding constitution and let decision stand allowing an increase in power

  • e.g. March 2021 Uzegbunam v Preczewski used power of judicial review to uphold 1st amendment rights, 8-1, lone dissent by Roberts who claimed the decision would lead to a 'radical expansion of judicial power' as the case was moot

  • judicial review especially powerful during periods of judicial activism which give the court constitutional sovereignty which undermines elected branches

  • allows court to rule on moral issues and effect public policy despite being unelected to the electorate