Judicial Review: A Double-Edged Sword
1. Traditional theories of judicial review hold that neutral or principled grounds are the only legitimate bases for judicial decisions and reject political motives in judicial decision-making. Do you believe this is true? Do you see principled v. political motives in important U.S. Supreme Court constitutional decisions which overturn laws passed by legislatures (such as restrictions on gun ownership, or marijuana use)?
The U.S. Supreme Court justices cannot escape the fact that they are appointed to the Supreme Court by a president with political motivations and enviably will make decisions they feel are principle but might easily been seen political to those who don't share their particular viewpoint or stance. For instance, in the landmark decision made by the U.S. Supreme Court to overturn segregation in America’s public schools was based on the case of Brown v. Board of Education which was to challenge and change the racist practice set by state legislatures of ‘separate but equal’ as it related to unfair and unequal school settings for black children in many U.S. states. According to a book review by Cline (2011): Brown was initially criticized by many as a severe kind of judicial overreaching, the forging of a constitutional mandate not originally intended by the framers of the Fourteenth Amendment. That view still exists in some quarters. But for many, Brown has become exhibit A in the case for a more activist judiciary, an argument that the courts, because of their relative insulation from political pressures, might in fact be better vehicles to resolve knotty social problems. The United States Supreme Court has had its issues as there has been persistent controversy over the appropriate role of the courts, and particularly the U.S. Supreme Court, in the legislative system. This debate has usually been characterized as ‘judicial activism’ versus ‘judicial restraint’. But this doesn't mean the system is unprincipled or ultra-political just that the individual justices are tasked with making decisions that should be based on the U.S. Constitution. 2. Interestingly, those behind high-profile cases brought to the court are often those who seek political agendas. In Korea, they defer to the Korean Constitutional Court when a political deadlock is reached (and they were unwilling or unable to settle contentious public disputes in the legislature). Politicians may invite judicial intervention deliberately to avoid public criticism of their incapability of action and to divert responsibility to the Court. Do you think this is true in the United States? If so, can you provide a specific example?
The US Supreme Court rulings can be so advantageous to the masses because there are so many different avenues in which their decisions can impact lives of every citizen of the US and the Constitution of the US. So those in power seem to resort to the fielding of judicial involvement to rid the standstill debates that keep their agenda filled regulations or ideals from moving forward. There have been several incidents where politicians have invited judicial intervention to deliberately avoid public criticism of their incapability of action that eventually diverted responsibility to the Court like with abortion and gay rights issues. But the voting rights debate for blacks and ultimately other minorities made it possible for those politicians against letting certain people have the right to vote to say they had nothing to do with the passing of voter rights laws as the Supreme Court made the ultimate decisions. The only dilemma is that those politicians are still in office attempting to use their power to thwart to efforts by the Courts by attempting to sabotage everything that seems to go against their ideals. According to Whittington (2005): The exercise of constitutional...