Judicial Review

Judicial Review: A Double-Edged Sword

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 review by an independent and active judiciary is commonly regarded as against the interest of current government officials, who presumably prefer to exercise power without interference. When current elected officials are obstructed from fully implementing their own policy agenda, they may favor the active exercise of constitutional review by a sympathetic judiciary to overcome those obstructions and disrupt the status quo. This provides an explanation for why current officeholders might tolerate an activist judiciary.
3. When people cannot get decisive action from their political leaders, they are very likely to turn to courts and judges instead. That is, when any political group cannot gain electoral support enough to be a dominant ruling party or coalition, the court becomes perceived as the most reliable civil institution in the country. In controversial cases, such as gun ownership rights or marijuana use in the U.S., do you see similarities or differences from this trend occurring?

There are definitely similarities in the United States as it relates to political leaders turning to the courts and judges to help mandate certain political action. Many politicians believe they must remain steadfast in getting their agendas seen as mainstream in order to contract the court to decide in their favor. The powers that be within the political arena must assure their supporters that they will prevail on their agendas and that the court in a viable option in meeting their political goals. According to Whittington (2005):
Even in the American context, the maintenance of the judicial authority to interpret the Constitution and actively use the power of constitutional review is an ongoing political project. For “judicial activism,” in the sense of the frequent constitutional invalidation of legislation and executive action, to be sustained over time, the courts must operate in a favorable political environment. Judges must find reason to raise objections to government actions, and elected officials must fine reason to refrain from sanctioning judges for raising such objections.

4. Judicial review is a double-edged sword. If exercised courageously, but prudently, to defend the rights of those politically and economically disadvantaged or hold the line against abuses of power. On the other hand, judicial review can easily become a formidable instrument for legitimating the interests of existing political and economic elites. Can you provide examples of cases where the U.S. Supreme Court, like the court in Korea, attempted to walk the line between government power and the rights of individuals without that power?

The US Supreme Court considered the “highest court in the land” is comprised of a Chief Justice and eight associate justices who are appointed to give their interpretation of federal and Constitutional laws when necessary. According to US Courts (2011):
The United States Supreme Court consists of the Chief Justice of the United States and eight associate justices. At its discretion, and within certain guidelines established by Congress, the Supreme Court each year hears a limited number of the cases it is asked to decide. Those cases may begin in the federal or state courts, and they usually involve important questions about the Constitution or federal law.
Some examples of the decisions made by this appointed judicial body that attempted to walk the line between government power and the rights of individuals without that power are cases Roe v. Wade (abortion rights) and District of Columbia v. Heller (gun rights). Roe v. Wade is considered a landmark but controversial decision made by the U.S. Supreme Court on the issue of abortion. The Court concluded that a woman had a right to make the decision to have an abortion based on the right to privacy under the due process clause in the Fourteenth Amendment to the U.S. Constitution. According to Planned Parenthood (2010):
On January 22, 1973, the U.S. Supreme Court handed down its landmark decision, Roe v. Wade, recognizing the constitutional right to privacy and a woman’s right to choose abortion. Many of us don’t recall the deadly days before Roe when abortions were illegal, and “choice” for too many women meant a dangerous back-alley procedure.
In 2008, the Supreme Court issued a Second Amendment decision in District of Columbia v. Heller. The Court made a decision that the Second Amendment protects an individual’s right to possess a firearm. Barnes and Eggen reported that:
The decision extended the court’s 2008 ruling in District of Columbia v. Heller that “the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.”That decision applied only to federal laws and federal enclaves such as Washington; it was the first time the court had said there was an individual right to gun ownership rather than one related to military service.

References
Barnes, R. & Eggen, D. (2010, June 29). Supreme Court affirms fundamental right to bear arms. The Washington Post. Retrieved from http://www.washingtonpost.com/wp-dyn/content/article/2010/06/28/AR2010062802134.html
Cline, A. (2011). Brown v Board of Education. [Review of the book Brown v Board of Education: Caste, Culture, and the Constitution]. About.com. Retrieved from http://atheism.about.com/od/bookreviews/fr/BrownBoardEd.htm
The Patriot-News. (2008, Jun 26) Supreme Court backs gun ownership rights. Associated Press. Retrieved from http://www.pennlive.com/midstate/index.ssf/2008/06/supreme_court_backs_gun_owners.html
Planned Parenthood (2010). Roe v. Wade. Action Center. Retrieved from http://www.plannedparenthoodaction.org/positions/roe-v-wade-643.htm
United States Courts. (2011). The United States Supreme Court. US Courts website. Retrieved from http://www.uscourts.gov/FederalCourts.
Whittington, K. (2005). Interpose Your Friendly Hand: Political supports for the exercise Judicial Review by the United States Supreme Court [Abstract]. American Political Science Review, 99(4), 583. Retrieved from http://www.jstor.org/pss/30038966

References: Barnes, R. & Eggen, D. (2010, June 29). Supreme Court affirms fundamental right to bear arms. The Washington Post. Retrieved from http://www.washingtonpost.com/wp-dyn/content/article/2010/06/28/AR2010062802134.html Cline, A. (2011). Brown v Board of Education. [Review of the book Brown v Board of Education: Caste, Culture, and the Constitution]. About.com. Retrieved from http://atheism.about.com/od/bookreviews/fr/BrownBoardEd.htm The Patriot-News. (2008, Jun 26) Supreme Court backs gun ownership rights. Associated Press. Retrieved from http://www.pennlive.com/midstate/index.ssf/2008/06/supreme_court_backs_gun_owners.html Planned Parenthood (2010). Roe v. Wade. Action Center. Retrieved from http://www.plannedparenthoodaction.org/positions/roe-v-wade-643.htm United States Courts. (2011). The United States Supreme Court. US Courts website. Retrieved from http://www.uscourts.gov/FederalCourts. Whittington, K. (2005). Interpose Your Friendly Hand: Political supports for the exercise Judicial Review by the United States Supreme Court [Abstract]. American Political Science Review, 99(4), 583. Retrieved from http://www.jstor.org/pss/30038966