The Role of the Supreme Court in Interpreting the Constitution Monika Broome January 16, 2015

Judicial Supremacy 1803: The Constitution established three co-equal branches of government...legislative, executive, and judicial. Although the Constitution established the Supreme Court, it did not confer on the Court the power of judicial review of acts of Congress. However, the supremacy of the Supreme Court decisions has been generally accepted.

Interpreting the Constitution When the Supreme Court issues an opinion,...it is binding on the litigants,...is enforced by the U.S. government, and...serves as a precedent for future cases.

U.S. is a common law nation. -law as developed by judges and courts. -Judges have the authority and duty to make law by creating precedent.precedent -originated during the Middle Ages in England....then on to the rest of the British Empire. -A "common law system" is a legal system thatlegal system gives great precedential weight to common law.

Two fundamental ways that Supreme Court decisions can, and have been, directly overturned: 1) by changes in the membership and/or philosophical outlook of the Court itself. 2) by direct constitutional amendment.

Court decisions that have been reversed as a result of long periods of opposition by significant segments of the population: - Brown v. Board of Education (1954) reversed Plessy v.Ferguson (1896) which allowed state sanctioned racial segregation. -Lawrence v. Texas (2003) reversed Bowers v. Hardwick (1896) which allowed criminal sodomy laws involving consenting adults. -DC v. Heller (2008) reversed Miller v. Texas (1894) to find that the 2nd Amendment protects an individual’s right to possess a firearm.

Changing Supreme Court Decisions by Changing the Court Profound consequences on the kind of society and government we have. Early 20 th century the Supreme Court made it a common practice to strike down economic regulations (alienating progressives) Warren Court (1950s and 1960s) expanded civil rights for minorities and criminal defendants (alienating conservatives)

Unelected judges with lifetime tenure can strike down laws enacted by a democratically elect legislature. The democratic check on unelected judges is the appointment of judges by elected officials. Concerns may be overblown because the Supreme Court usually tracks popular opinion over the long run, judges change their opinions, and the composition of the Court changes.

1932 Franklin Roosevelt caused Congress to pass aggressive economic legislation, which the Supreme Court ruled unconstitutional. -Supreme Court: 4 staunch conservatives, 3 liberals and 2 swing votes. Roosevelt’s court packing plan (increasing the Court from 9 to 15 members) not supported by Congress. However, over the course of his presidency, Roosevelt appointed eight Supreme Court justices who endorsed an expansive federal government role in economic regulation and the application of the Bill of Rights.

1970s: Concerted effort to return the Court to a more conservative jurisprudence. 1980: Supreme Court consisted of 4 liberals, 3 conservatives, and 2 moderates. -7 of the 9 justices had been appointed by Republican presidents.

Current Supreme Court: 4 ideological conservatives, 1 traditional conservative, and 4 traditional liberals. -Four are at least 77 years old (2 liberals and 2 conservatives) All appointed after Reagan’s election. Very polarized along partisan and ideological lines.

Changing Supreme Court Decisions by Constitutional Amendment An amendment can be proposed......by two-thirds of both houses of Congress or...by two-thirds of state legislatures requesting Congress to call a national convention to propose amendments. Supermajorities make the enactment of a constitutional amendment very difficult. Seldom done..

So far, all constitutional amendments have been proposed by calling for a 2/3 majority of both houses of Congress and submission to the states for ratification by 3/4 majority. Amendments for the purpose of overturning previous Supreme Court decisions: 1868: Amendment XIV guaranteed birthright citizenship for African Americans. 1913: Amendment XVI authorized an income tax. 1919: Amendment XVII prohibited the sale transportation of intoxicating liquors.

Concerned public citizens can strive to make the Supreme Court decisions more responsive to the public by: - educating themselves and voting for candidates who will appoint or confirm judges who share the citizens’ judicial philosophy. -working to educate the public on the role of the courts and the importance of considering candidates’ judicial philosophy when voting. -supporting constitutional amendments when voting. -supporting constitutional amendments to correct Supreme Court decisions they believe wrongly decided.

Court’s decisions have revolved around three questions: 1.How does the First Amendment apply to the action in question? 2.Is the speaker entitled to First Amendment protection, and what level of scrutiny ought to apply to the regulation of the speech? 3.What compelling government interests are implicated by campaign finance?

“ Historically, constitutional change at the Supreme Court has happened only when advocates have made concerted arguments over a long period of time, explaining the correctness of their understanding of the Constitution and creating public pressure for change.”

Information for this presentation was taken primarily from Money in Politics Review Submitted by July 28, resources/article/money-politics-shifts- supreme-court-opinion-about-money- politics