A2 essay: Are supreme court justices politicians in disguise? Watch

ponpon14
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Hi, i have been set an essay, but im not sure of the main points i should include. It is part of unit 5c on edexcel.

"Are supreme court justices politicians in disguise?"

I really dont know where to start??!! please help!
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Rosamund123
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hi,
I have a really similar essay (to what extent can it be said that the supreme court is as much concerned with policy making as it is with the constitution?) or something :P

I'm not sure how to go about mine either... my friend talked a lot about loose and strict constructionism in hers, and how that impacts on the way they interpret the constitution
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ponpon14
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(Original post by Rosamund123)
hi,
I have a really similar essay (to what extent can it be said that the supreme court is as much concerned with policy making as it is with the constitution?) or something :P

I'm not sure how to go about mine either... my friend talked a lot about loose and strict constructionism in hers, and how that impacts on the way they interpret the constitution
Thanks, i guess i might look as that as a starting point!

I also figured that maybe the supreme court has to make a decision thats good for the people as well as the constituiton, thus making them political in their concern of politcy making? If that helps you?

This is really quite difficult!
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2brojen
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I have just done and AQA one about the political nature of the UK and US judiciaries

You need to say about how in the US they have the power to act politically as due to their codified constitution under judicial review they have the ability to change the law whereas in the UK judicial review is limited as parliament remains Sovereign (but make sure you point out that the EU has eroded some of parliaments soverigntiy and how the EU convention of human rights giving the courts much more power in the UK as has devolution as they have to interpret develoved legislation)
In the US the Supreme court can also choose to act with judicial restraint- avoiding any constitutional issues where possible
or they can act with judicial activism where they can take a pro-active role to alter the constitution such as The Warren Court (look at the Topeka vs Brown case)
you may also want to put about the seperation of powers and the aim in the US is to make the judiciary less political by having the powers completley sperate whereas in the uk with the fusion of powers they're not seperate- law lords in the house of lords and the appointemnt of Lord Chancellor. but you can also say here that under the 2005 constitutional reform act this is chaging- creation of British supreme court and abolishing the Lord chancellor
The appointment of judges can also be seen as political- chosen by PM or president to power for them to be chosen for their political reasons
but UK- again under the 2005 CRA their is to be a judicial apointment commitee to be set up that includes a mix of normal people and politicans to select the judges.

Hope that helps a little and is what you were looking for
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Rosamund123
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(Original post by 2brojen)
I have just done and AQA one about the political nature of the UK and US judiciaries

You need to say about how in the US they have the power to act politically as due to their codified constitution under judicial review they have the ability to change the law whereas in the UK judicial review is limited as parliament remains Sovereign (but make sure you point out that the EU has eroded some of parliaments soverigntiy and how the EU convention of human rights giving the courts much more power in the UK as has devolution as they have to interpret develoved legislation)
In the US the Supreme court can also choose to act with judicial restraint- avoiding any constitutional issues where possible
or they can act with judicial activism where they can take a pro-active role to alter the constitution such as The Warren Court (look at the Topeka vs Brown case)
you may also want to put about the seperation of powers and the aim in the US is to make the judiciary less political by having the powers completley sperate whereas in the uk with the fusion of powers they're not seperate- law lords in the house of lords and the appointemnt of Lord Chancellor. but you can also say here that under the 2005 constitutional reform act this is chaging- creation of British supreme court and abolishing the Lord chancellor
The appointment of judges can also be seen as political- chosen by PM or president to power for them to be chosen for their political reasons
but UK- again under the 2005 CRA their is to be a judicial apointment commitee to be set up that includes a mix of normal people and politicans to select the judges.

Hope that helps a little and is what you were looking for

but I don't think it's a comparison essay with the UK?
also, if the aim in the US is to make the judiciary less political, why is it so political?!
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ponpon14
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It makes no sense does it that they wanted it to be unpolitical, but in the end it ended out that it is political. I emailed my teacher from last year (he moved away to canda) But he is good, and has had some of hte best results for government and politics across england! So the email he sent back was:

"the question is basically asking whether the USSC makes 'political' as well as 'judicial' decisions. If you can remember from your first year what the difference is that would be useful. If not, here it is - a judicial decision is a decision based on the law e.g. did the defendant break any existing law? Whether that law is 'right' or 'wrong' (i.e. whether that law is 'just)' is of no concern to the judiciary (or should be if you don't believe that a court should be political) because that's a political decision. Whether the death penalty should be given for murder is a political decision. Whether someone was guilty of that crime is a judicial decision.

The most important aspect of this question (in my view) is that the answer must be yes, to some extent (and certainly much larger than in the UK). This should be your first section after explaining what the question means. The reason for this answer is the American version of judicial review. Remember that in the UK this power only allows the judiciary to say that the government has exceeeded the powers (ultra vires) given to it by law. What it cannot do is say that the law is invalid. In the US the SC can do just this. Because of the power of judicial review, as introduced by Chief Justice Marshall in 1803 (Marbury v. Madison), the SC can declare laws to be unconstitutional. That is it can strike down laws made by Congress (and also executive actions) if it so chooses. The SC is the guardian of the Constitution and, as such, if it decides which laws are constitutional or not, it MUST have some political element since it is, so to speak, making law rather than just ruling on it.

It would be good to mention somewhere that this is not necessarily a negative thing. Because the Constitution is a form of 'higher law' (that is, it is above law made by the legislature) then it 'must' have someone to rule on whether or not congressional law breaks constitutional law. The Founding Fathers were well aware of this and (if you read the Federalist Papers) it would seem that Alexander Hamilton at least knew that tthis would have to be the role of the SC. They left it out of the Constitution becausei it is controversial (the judiciary overruling democratically made law). However, try to think who else could do it and you'll see why it makes some sense for it to be the SC. So, it's not necessarily negative, just the way things 'have' to be.

Where it becomes negative (arguably, especially from a conservative perspective) is when it is used to over rule the Founding Fathers or to interpret the Constitiution according to what we think now. You need to have a whole section explaining how the SC went through a highly controversial period under Chief Justice Warren (and Burger too, to a lesser extent) during the 50s, 60s and early 70s. The argument is that these liberal courts took it upon themselves to 'update' the Constitution, to make it a living document, relevant to our times. Here you need to give examples such as Griswold v. Connecticut (1965??) and Roe v. Wade (1973). These used the implied right to privacy that the court said was not written into the Constitution but that, they claimed, the Founding Fathers had implied in writing the document (see Amendment IX). In so doing the SC was, essentially, making law i.e. it decided that abortion could be legal in America.

You should mention here how, arguably, the more activist and liberal a court is then the more political it is. A non-activist, conservative court is arguably less likely to make political decisions since it does not believe in a living constitution and does not interpret as loosely as does a liberal court. Therefore you would do well to say that whether or not a SC is political depends very much on what type of court it is.

This is a start, get your head round that and let me know what you think or if you have any questions. If no probs and you get all this then I can finish it off for you."

This really is some stuff yto get your head arouns lol! Its helpful for the whole judiciary part of the A level though!
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