1. I believe that the creation of an independent constitutional court, with the authority to declare unconstitutional laws passed by the state or federal legislatures, is probably the most significant single contribution the United States has made to the art of government. — Chief Justice William Rehnquist’s remarks at the rededication of the National Archives (September 17, 2003).
Do you agree with Rehnquist’s comment on the significance of the Supreme Court?
How far do you agree that the Supreme Court is independent?
How far can the Supreme Court become embroiled in political rather than in judicial matters?

2. Enquiry Question: How far has the Supreme Court become a political institution?

3. Learning Objectives
To understand the debate over whether the court is a political rather than a judicial institution
To analyse the extent to which judges have abandoned judicial neutrality in the pursuit of their own political agenda
To analyse the extent to which decisions will inevitably be labelled ‘political’ by opponents

4. “Political” or “Judicial” Institution
DEBATE:
“Political” or “Judicial” Institution
justices are nominated and confirmed by politicians; it is accepted that a president will nominate a candidate sympathetic to his agenda, and nominees will come to the confirmation process with a track record of judgments and/or writings suggestive of their ideological perspective.
justices themselves claim to be ‘neutral umpires’ and that it is possible to apply the constitution to the cases they consider in a ‘restrained’ and non-political way
many cases are decided by purely technical and legal considerations, and only a few high-profile cases have overtly political implications
the power of the court through judicial review to declare the laws and actions of the elected branches unconstitutional inevitably gives their role a political element judicial interpretation cannot be value-free, and judicial activism imposes the political values of justices on the constitution
the court is used for political ends; interest groups bring test cases and lobby the court through amicus curiae briefs
justices may rule against their own stated preferences, e.g. Justice Kennedy in the Texas v Johnson judgment wrote “The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.”
justices are constrained by precedent, which they are reluctant to overturn, and by the law itself
justices’ decisions which cases to take reflect a value judgment as to which are important
the judgment process itself is political; in the process of reaching a decision, justices will try to ensure their view prevails; they will form alliances against opponents, strike bargains and offer compromises
judgments are not arrived at in a judicial vacuum; justices are aware of public opinion and the likely impact of their decisions

5. Learning Objectives
To understand the debate over whether the court is a political rather than a judicial institution
To analyse the extent to which judges have abandoned judicial neutrality in the pursuit of their own political agenda
To analyse the extent to which decisions will inevitably be labelled ‘political’ by opponents

6. How neutral and independent are Supreme Court Justices?
Judicial independence the idea that the judiciary is free of political interference and that they can make their decisions in accordance with their judicial oath “without fear or favour”. They cannot be easily removed from office.
Judicial neutrality the idea here is that judges are free from political bias. They apply and interpret the law in a neutral way and have no bias or interest in a particular outcome of any case. Judges should not openly engage in party political matters and should not allow personal or political preferences to influence their decisions.

7. How is the judiciary presented in the media?
YOUR TASK:
You are responsible for reading one of the articles around the perceptions of the judiciary in the USA and the controversies surrounding this.
Once you have read your article you need to feedback to the class:
Summarise your article (3 to 5 bullet points)
How does your article contribute to the debate about the extent to which judges have abandoned judicial neutrality in the pursuit of their own political agenda?
How does your article contribute to the debate about the extent to which judicial decisions will inevitably be labelled ‘political’ by opponents?

8. How is the judiciary presented in the media?
Article 1: The myth of judicial neutrality: the case for a truly diverse supreme court
Article 2: Supreme Court justices: Are they supposed to be politicians in black robes?
Article 3: How impartial is the judiciary?
Article 4: Supreme Court Justices Are Not Really Judges
Article 5: Why do we pretend Supreme Court justices are anything but political officials?

9. Have judges have abandoned judicial neutrality in the pursuit of their own political agenda?

10. Are Supreme Court decisions more ‘political’ or ‘judicial’?

11. Learning Objectives
To understand the debate over whether the court is a political rather than a judicial institution
To analyse the extent to which judges have abandoned judicial neutrality in the pursuit of their own political agenda
To analyse the extent to which decisions will inevitably be labelled ‘political’ by opponents

12. Homework
Application Task: ‘A political, not a judicial institution.’ Discuss this view of the Supreme Court. (45) Flipped Learning Preparation Task: Revise for end of topic test Stretch & Challenge Task Article: Democrats question independence of Trump SC nominee