Explore BrainMass

The Supreme Court and Judicial Review

In a recent lecture at Yale University, Supreme Court Justice Stephen Breyer cautioned that while most citizens assume that judicial review is an enduring part of American government, judges should not take it for granted. He advises that if judges wish to preserve this undemocratic power they should follow a judicial philosophy that will "build confidence in the courts" (Breyer, 2011). Justice Breyer goes on to describe the kind of judicial philosophy he has in mind. However, some of his colleagues on the Supreme Court would reject his ideas about what philosophy should guide judges.

The role of judicial philosophy (or ideology) in Supreme Court decision-making, especially in its exercise of judicial review to invalidate laws enacted by a democratically elected Congress or state legislature, has become a highly contentious issue both within the Court's deliberations and in the larger political environment. As the nation becomes more divided over programs and policies that inevitably seem to come before the Supreme Court, politicians and ordinary citizens are caught up in rhetoric about judicial activism or judicial restraint, often with little understanding of what these terms really mean.

Moreover, as public perceptions of the Supreme Court become more politicized, the legitimacy of its power becomes clouded. If the Court is perceived as just another political institution making political decisions, but a completely undemocratic institution because its judges are appointed and serve for life, questions arise about whether the Court's power of judicial review should be strictly limited or eliminated altogether. Justice Breyer's warning comes to mind as the percent of Americans approving of how the Supreme Court does its job slid from 61% in 2009 to 46% in 2011 (Gallup, 2012).

In your initial post of at least 200-250 words, respond to one of these questions:

What judicial philosophy should guide the Supreme Court's exercise of judicial review?

Should the Supreme Court's power of judicial review be strictly limited by a constitutional amendment?

In answering either question, clearly state your position (thesis) at the beginning of your post. Define important terms and explain your position fully. Consider pro and con arguments on both sides of your position and respond to the con arguments. Justify your position with facts and persuasive reasoning.

Solution Preview

--- What judicial philosophy should guide the Supreme Court's exercise of judicial review?

As the public perception of the Supreme Court's competency has slid and it's increasingly being seen as a political institution, the Court should exercise judicial restraint in invalidating laws enacted by a democratically elected Congress or state legislature. Judicial review is one of the most widely accepted tools for balancing the powers between the three branches of the United States government. Yet its origin is not found in the Constitution and there remains a fundamental question of what the framers of the Constitution intended on being the "check" on Legislation or Executive action that is not within the bounds of the U.S. Constitution. There is an argument to be made that the Supreme Court's role in interpreting the validity of Congressional or Executive action should be extremely limited. That argument has force because the "political checks" are sufficient to defend against contentious policies or programs.

Justice Breyer's advice, that it is paramount that the Supreme Court of the United States (SCOTUS) choose a philosophy that build America's confidence in the court, echoes this sentiment that the SCOTUS should be conscious about their undemocratic position of power. The United States Congress is in its nature an extremely deliberative body. That is, the procedures that are put in place in order to pass legislation make for an extremely ...

Solution Summary

The expert examines the supreme court and judicial reviews.