Supreme Court & Public Policy
Political Studies: Edexcel A Level, topic 15.3.1
The Supreme Court and Public Policy
The Supreme Court has had a major impact on a range of US public policy including abortion, marriage equality and election campaign spending.
Marriage equality
- The Supreme Court has ruled on marriage equality in America.
- In the 2013 United States v. Windsor case, the Court ruled that Section 3 of the Defense of Marriage Act, which denied federal recognition of same-sex marriages, was unconstitutional.
- In the 2015 Obergefell v Hodges case, the Supreme Court ruled that a ban on same-sex marriage was unconstitutional under the 14th Amendment's equal protection of all citizens' life and liberty rights.
Abortion
- The Supreme Court has ruled on the right to abortion for women.
- The 1973 Roe v. Wade case ruled that women have the right to an abortion under the 14th Amendment right to 'privacy'.
- The 2007 Gonzales v. Carhart case ruled to uphold the 2003 Partial-Birth Abortion Ban Act which banned the procedure of intact dilation and extraction used in later abortions.
- In 2022, Dobbs v. Jackson Women's Health Organization overruled Roe v. Wade and allowed states to make their own abortion laws.
Campaign spending
- Recent cases have removed some restrictions on election campaign spending.
- In the 2010 Citizens United v FEC case, the Supreme Court removed laws that prevented businesses from funding political advertising because the laws were considered to violate First Amendment rights to freedom of speech.
- In the 2014 McCutcheon v FEC case, the limit on individual contributions for election candidates of $48,600 was removed because it was ruled to violate the First Amendment right to free speech.
Judicial Activism and Restraint
Judicial activism is the belief that judges should aim to promote desirable social goals through their decisions. Judicial restraint is an approach where judges defer decisions to the executive and the legislature.
Judicial activism
- Judicial activist judges make rulings which reform US society and change public policy rather than defer decisions to elected officials.
- Judicial activist courts will more regularly use judicial review to overrule actions of the executive and Congress.
- Judicial activism is linked to the liberal view that the Constitution is flexible and can be adapted.
- Judicial activism enables the Constitution to evolve as society changes without needing to formally amend the Constitution.
Strengths of judicial activism
- Judicial activism brings about important social changes and developments.
- Judicial activists believe that the Founding Fathers expected the Court to actively interpret the Constitution to meet ongoing changes in society.
- The Burger Court of 1969–1986 acted with judicial activism; the 1973 Roe v. Wade ruling granted the right to abortion, though this was overturned by Dobbs v. Jackson Women's Health Organization in 2022.
Criticisms of judicial activism
- A judicially activist court makes laws when its role should be limited to interpreting the law.
- The law should be made by the elected legislative and executive rather than the unelected Supreme Court.
- Judges are experts in the law but not in the policy areas they make judgements on, and so should not make the law.
Judicial restraint
- Judicial restraint is linked to the conservative and strict constructionist view of interpreting the Constitution strictly.
- Judicial restraint is when judges rarely use judicial review to overrule actions by the executive or Congress.
- Under judicial restraint, judges will often defer public policy decisions to elected officials.
- Judicial restraint exists when courts base most decisions on precedent from previous court rulings.
- The Rehnquist Court of 1986–2005 acted with judicial restraint.
Criticisms of judicial restraint
- Judicial restraint prevents important social change from taking place.
- Precedent is followed from rulings which are out of date with modern society.
- The Constitution should change to meet ongoing developments in society.
- The 1896 Plessy v. Ferguson case ruled with judicial restraint but denied basic rights to African American citizens by upholding racial segregation.
Test yourself on Supreme Court & Public Policy
Which case ruled that a ban on same-sex marriage was unconstitutional?
Which of these statements about campaign spending Supreme Court rulings are true?
Which of the statements below are true of judicial restraint?