Does the Supreme Court have too much power for an unelected body?

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  • Created by: Ella-Jane
  • Created on: 26-04-17 21:03
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  • Does the Supreme Court have too much power for an unelected body?
    • Yes
      • Generally the view of Conservative - minded people
        • Typically they are strict constructionalits or orignialists
      • The Supreme Court should adhere to the practise of Judicial deference
        • Only overrule legislation passed by elected officials when it directly, unambiguously violates the constitution
        • Roe v. Wade 1973 - abortion was legal under the 14th amendment 7-2
          • Right to privacy under the due process clause extended to a woman's right to have an abortion
          • Conservative - minded people would say that SCOTUS effectively created a right that is not explicitly in constitution and they shouldn't be allowed to as they are not elected
            • Strict constructionalism
      • Judicial review is not explicitly mentioned in the constitution meaning it was viewed as the 'least dangerous' branch and has very few checks on its power
        • Marbury v. Madison 1803 - SCOTUS declared that its own power of 'Judicial Review' was constitutional
          • Declaring an action (un)constitutional
      • Judges are expert in law and not in social practise
        • Judge made social policy is often ineffective and unworkable in practise
        • Brown v. Board of Education 1954 - declared segregated schools to be unconstitutional 9-0
          • Completely changed the social set-up and deep rooted problems in America that would take years to work out but left no advice on how to actually change the situation
    • No
      • Generally the view of liberally - minded people
        • Loose Constructionists
      • In order to uphold the constitutional values of liberty and equality, the constitution needs to be a 'living' constitution
        • Failure to do so will result in it becoming irrelevant
        • If the constitution was not meant to be changed, there would not be an amendment process
          • 27 amendments
            • eg. 13th amendment - ending slavery
            • eg. 14th amendment - ending discrimination against women
        • 14th amendment was first upheld in Reed v. Reed 1971
          • Ruled unconstitutional that Mr Reed was favoured to become the administrator for his deceased son's estate over his ex-wife Ms Reed simply due to gender by the Idaho courts
      • There are checks on the Judiciary
        • Congress can create constitutional amendments in response to SCOTUS decisions
          • Pollock v. Farmers' Loan and Trust Co. - 1985
            • Ruled that certain income taxes were direct taxes
            • 16th Amendment - states that income taxes are not direct taxes - 1913
        • Judiciary have no power to enforce their rulings
          • Brown v. Board of Education - 1954 - declared that segregated schools were unconstitutional 9-0
            • Swann v. Charlotte Mecklenburg Board of Education -1971 - brought in the bussing of children to different schools to help speed up racial integration
              • Shows that in almost 20 years, desegregation hadn't actually been achieved
        • Judiciary cannot be proactive in bringing cases to the Supreme Court, they have to wait until it is brought to them
      • If SCOTUS is only willing to overturn the most obvious breeches of the constitution, rights will be denied
        • Plessy v. Ferguson - 1896 - "separate but equal" - There is no where in the constitution that explicitly states segregation is wrong; however, the changes in social and cultural
    • Judicial review gives judges immense power over the constitution - recently judges have become arbiters over a wide range of public policy - eg. desegregation and abortion

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