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I believe that the creation of an independent constitutional

court, with the authority to declare unconstitutional laws


passed by the state or federal legislatures, is probably the
most significant single contribution the United States has
made to the art of government.
— Chief Justice William Rehnquist’s remarks at the rededication of the National
Archives (September 17, 2003).

• Do you agree with Rehnquist’s


comment on the significance of
the Supreme Court?

• How far do you agree that the


Supreme Court is independent?

• How far can the Supreme Court


become embroiled in political
rather than in judicial matters?
Enquiry Question: How far has the Supreme Court become a
political institution?
Learning Objectives
• To understand the debate over whether the court is a political
rather than a judicial institution
• To analyse the extent to which judges have abandoned
judicial neutrality in the pursuit of their own political agenda
• To analyse the extent to which decisions will inevitably be
labelled ‘political’ by opponents
DEBATE:
“Political” or “Judicial” Institution
justices are nominated and confirmed by politicians; it is accepted
that a president will nominate a candidate sympathetic to his justices themselves claim to be ‘neutral umpires’ and that it is
agenda, and nominees will come to the confirmation process with a possible to apply the constitution to the cases they consider in a
track record of judgments and/or writings suggestive of their ‘restrained’ and non-political way
ideological perspective.

the power of the court through judicial review to declare the laws
many cases are decided by purely technical and legal and actions of the elected branches unconstitutional inevitably
considerations, and only a few high-profile cases have overtly gives their role a political element judicial interpretation cannot be
political implications value-free, and judicial activism imposes the political values of
justices on the constitution

justices may rule against their own stated preferences, e.g. Justice
Kennedy in the Texas v Johnson judgment wrote “The hard fact is
the court is used for political ends; interest groups bring test cases
that sometimes we must make decisions we do not like. We make
and lobby the court through amicus curiae briefs
them because they are right, right in the sense that the law and the
Constitution, as we see them, compel the result.”

justices are constrained by precedent, which they are reluctant to justices’ decisions which cases to take reflect a value judgment as
overturn, and by the law itself to which are important

the judgment process itself is political; in the process of reaching a


decision, justices will try to ensure their view prevails; they will judgments are not arrived at in a judicial vacuum; justices are
form alliances against opponents, strike bargains and offer aware of public opinion and the likely impact of their decisions
compromises
Learning Objectives
• To understand the debate over whether the court is a political
rather than a judicial institution
• To analyse the extent to which judges have abandoned
judicial neutrality in the pursuit of their own political agenda
• To analyse the extent to which decisions will inevitably be
labelled ‘political’ by opponents
How neutral and
independent are Supreme
Court Justices?

• Judicial independence
the idea that the judiciary is free of political interference
and that they can make their decisions in accordance with
their judicial oath “without fear or favour”. They cannot
be easily removed from office.
• Judicial neutrality
the idea here is that judges are free from political bias.
They apply and interpret the law in a neutral way and
have no bias or interest in a particular outcome of any
case. Judges should not openly engage in party political
matters and should not allow personal or political
preferences to influence their decisions.
How is the judiciary
presented in the media?
YOUR TASK:
• You are responsible for reading one of the articles
around the perceptions of the judiciary in the USA
and the controversies surrounding this.
• Once you have read your article you need to
feedback to the class:
– Summarise your article (3 to 5 bullet points)
– How does your article contribute to the debate about the
extent to which judges have abandoned judicial neutrality
in the pursuit of their own political agenda?
– How does your article contribute to the debate about the
extent to which judicial decisions will inevitably be
labelled ‘political’ by opponents?
How is the judiciary
presented in the media?
• Article 1: The myth of judicial neutrality: the case
for a truly diverse supreme court
• Article 2: Supreme Court justices: Are they
supposed to be politicians in black robes?
• Article 3: How impartial is the judiciary?
• Article 4: Supreme Court Justices Are Not Really
Judges
• Article 5: Why do we pretend Supreme Court
justices are anything but political officials?
Have judges have abandoned judicial neutrality in
the pursuit of their own political agenda?
Are Supreme Court decisions more ‘political’ or
‘judicial’?
Learning Objectives
• To understand the debate over whether the court is a political
rather than a judicial institution
• To analyse the extent to which judges have abandoned
judicial neutrality in the pursuit of their own political agenda
• To analyse the extent to which decisions will inevitably be
labelled ‘political’ by opponents
Homework
Application Task:
‘A political, not a judicial institution.’ Discuss this
view of the Supreme Court. (45)
Flipped Learning Preparation Task:
Revise for end of topic test
Stretch & Challenge Task
Article: Democrats question independence of
Trump SC nominee

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