The Supreme Court and American Democracy: Case Studies on Judicial Review and Public Policy

The Supreme Court and American Democracy: Case Studies on Judicial Review and Public Policy

The Supreme Court and American Democracy: Case Studies on Judicial Review and Public Policy

The Supreme Court and American Democracy: Case Studies on Judicial Review and Public Policy

Synopsis

Topically arranged casebook of U.S. Supreme Court decisions with extensive commentary dissects the Court's decisions on current hot-button national policy issues.

Excerpt

The republic established by the Framers of the U.S. Constitution is based on two opposing principles. The first is majority rule—the principle that the majority determines government policy through legislation enacted by their elected representatives. The second principle is fundamental law—the principle that there are nonetheless some things that the Constitution forbids even a majority to do. These two principles come into direct collision when it is claimed that legislation enacted by majority rule is “unconstitutional”—that the legislation violates the provisions of the Constitution.

The primary responsibility of seeking to reconcile those two principles rests today on the nine Justices of the Supreme Court. Although theoretically the three branches of the federal government are equal under the Constitution, the nation’s acceptance of judicial supremacy has made the Court the final arbiter of the Constitution’s interpretation.

From the birth of the nation to the present day, as shown in the recent debates over the selection of new Justices, the Court’s role has been a subject of intense debate. At the heart of the controversy is a wide variety of views concerning whether, in a democratic society, critical issues of national policy should be decided by an unelected body.

Constitutional law cases are not “legal” in a conventional sense but instead often involve issues arising in the political arena. “There is almost no political question in the United States,” Alexis de Tocqueville said, “that is not resolved sooner or later into a judicial question.” As (later Justice) Robert Jackson pointed out: “Struggles over power that in Europe call out regiments of troops, in America call out battalions of lawyers.”

This book examines, in relation to the frequently controversial role of the Supreme Court, a wide variety of such public policy issues—including abortion, gay rights, physician-assisted suicide, racial segregation, affirmative action, elections and voting,

Democracy in America [Chicago 2000]: 257.

The Struggle for Judicial Supremacy [Knopf 1941]: xi).

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