Evaluate the view that the Supreme Court is now an ‘imperial judiciary’
Theme/Points
1.1 senate and president
checks and balances →
appointment process,
impeachment for misconduct
1.2 Unelected and
unaccountable (life tenure) &
lack of diversity
2.1 constrained by
constitution, can only rule on
cases of constitutional rights
2.2 Judicial activism →
depending on their
philosophies, they can
interpret the constitution
differently
3.1 decline in number of cases
so limited influence, and only
a few landmark and can only
rule on cases brought to them
Evidence
- Checks and balances in place, impeachment
for misconduct
- Harriet Miers, Bush nominated her but reps
and dems both didn’t like her
- Impeachment has never actually occurred, but
the threat of impeachment has Abe Fortas 1969
- Court can easily strike down laws made by
legislature or executive, overruling those with
mandate to implement law
- Current SC is majority white, and male as of
2023, at a higher proportion than the current
US population. - only seven judges in the
courts 233 history have been not a white man.
- Trump appointed 3, Obama appointed 3, Joe
Biden appointed 1’
- RBG dying, and leaving the space to be filled
by Kentaji Brown Jackson
- 2016 US v Texas ruled Obama's executive
order of DAPA unconstitutional
- Fulton v. City of Philadelphia, first amendment
(especially religious expression) constrained
the court
- In June 22, the SC ruled NY’s gun laws
unconstitutional, in violation of the 2nd
Amendment.
- Snyder v Phelps 2011, 8:1 first amendment
upheld over right to privacy
- Brnovich v Democratic National Committee -
6-3 ruling where conservative justices voted to
uphold Arizona state laws which undermined
the Voting Rights Act (conservative
philosophy)
- Bostock v. Clayton County, decided in June
2020 - interpretation of the word ‘sex’, included
sexual orientation and gender identity, and
weakened discrimination (liberal philosophy)
- Made new laws - Obergefell v Hodges
- Roe v Wade
- SC can only make legislation when the cases
are brought to them - eg. Obergfell v Hodges,
same sex marriage was only legalised after the
case was brought to the SC

3.2 the power of judicial review
→. Overturns legislation
without being checked
Cannot enforce their own
rulings
Evaluate the view that the Supreme Court is now a political not a judicial institution
Theme/Points
1.1 President has no influence
once they are on the bench
1.2 Appointment Process
(President and Senate)
2.1 Can only go as far as the
- SC can only rule on cases brought to them. 168
cases in 1990 compared to 63 in 2021.
- March 2021 Uzegbunam v Preczewski used
power of judicial review to uphold 1st
amendment rights, 8-1, lone dissent by Roberts
who claimed the decision would lead to a
'radical expansion of judicial power' as the
case was moot.
- Judicial review stopped the Line Item Veto -
The power of the president to veto parts of bills
(instead of a full Bill) was ruled
unconstitutional in Clinton vs City of New York
1998, (So SC had great influence over
executive)
- Presented with over 8000 cases per year -
given a lot of choice over what to rule on
lack of power to enforce e.g. Shelby county v
Holder attempting to give states the responsibility
of protecting voter rights however lack of
enforcement shown through 2020 election where
polling stations deliberately closed to prevent
minorities from voting
Evidence
Kennedy - Obergefell v Hodges 2015
Souter - Planned Parenthood v Casey 1992
Also with Bush v Gore 2000 he dissented
Justice Elena Kagan went halfway, upholding the
law’s constitutionality but voting against a major
Medicaid feature of it.
Trump v. Mazars USA, LLP 2020 - subpoena against
Trump upheld illustrates the SC free from presidential
influence
Trump and Amy Coney Barrett 2020 ACB was openly
anti abortion and publicly held very christian
conservative views.
Obama nominating Kagan
Garland blocked in 2016 by GOP
Biden nominating Kentaji Brown Jackson
Shurtleff v Boston 2022 (9-0)
constitution - this can be seen
in unanimous cases (1st
amendment usually)
2.2 Have the power to broadly
interpret based on their
judicial ideology (judicial
activism)
3.1 Separation of Powers -
have judicial independence -
can’t be controlled? - no
political reward - gain nothing
3.2 Interest groups have large
influence US - amicus curiae
Houston Community College System v Wilson 2022
(9-0)
Dobbs v Jackson 2022
Second Amendment ruling 6-3 2022
Carson v Makin
Brnovich v Democratic National Committee - 6-3 ruling
where conservative justices voted to uphold Arizona
state laws which undermined the Voting Rights Act
(conservative philosophy)
Article III states that ‘The justices…shall receive a
compensation which shall not be diminished’. Means
judges have fixed salaries so a partisan Congress cannot
defund the supreme court if it were to rule on something
that does not match Congress’ partisan ideology. This
stops congress benefitting and defending its current
ideology and making the SC a political institution, with
judges ruling to help a partisan congress so they can
increase their salary.
NRA-ILA - challenge to NY restrictive
concealed-carry-licensing regime 2021
NAACP 2022 Uni of North Carolina v Students for Fair
Admissions
The American Civil Liberties Union was involved in
2005 McCreary vs ACLU case.