490 Chapter 14Chapter 14 || The CourtsThe Courtslaw”) and the image of Lady Justice—seem to contradict the view of a political Supreme
Court. We normally think of the courts as objectively applying the law and interpreting
the Constitution for each case. Indeed, there is often consensus among the justices on
how to rule in a given case. In the 2017–2018 term, 39 percent of the cases decided were
unanimous (28 of 71) and 6 more had only one dissenting vote.^5
However, a massive body of political science research shows that the Supreme Court
can be quite political and divided ideologically. In the most recent term, 26 percent of cases
were decided by a 5–4 vote, including controversial cases concerning public employee
unions, searches of cell phone records, Internet sales taxes, and President Trump’s travel
ban for countries suspected of terrorism. As justices interpret the Constitution, they also
play one of two roles in our political system: either asserting their own policy-making
authority or deferring to the decisions of others (Congress, the president, or the people).
The Court’s decision about which path to take in a given case is often political, involving
conflict, trade-offs, and compromise, much like decision making in Congress.
For those who resist the view that the courts are a policy-making institution, the
theme “political process matters” may not seem to apply in this chapter. However,
the courts often do make policy, and the way they make decisions has an impact on
outcomes. To see how political process matters for the courts, it is important to answer
the following questions: What are the different roles of the courts and the structure
of the judicial system? How do court decisions shape policy? In a nutshell, what is the
nature of judicial decision making? With this context in mind, we can reexamine the
controversy over Justice Ginsburg’s comments. Did Justice Ginsburg overstep her
boundaries with her remarks on Donald Trump, or was it appropriate for her to express
her opinions? What is the proper place of the courts within our political system? Should
judges attempt to neutrally apply the law, or should their political views play a role?The development of an
independent and powerful
federal judiciary
The Constitution did not definitively establish the role of the courts in American
politics or the Supreme Court’s authority as the ultimate interpreter of the
Constitution. The powers of the Supreme Court evolved over time, and debates
about its proper role continue to this day.The Founders’ Views of the Courts: The Weakest Branch?
The Federalists and Antifederalists did not see eye to eye on much, and the judiciary
was no exception. Alexander Hamilton, writing in Federalist 78, said that the Supreme
Court would be “beyond comparison the weakest of the three departments of power.”
In contrast, one of the authors of the Antifederalist Papers wrote: “The supreme court
under this constitution would be exalted above all other power in the government and
subject to no control.”^6 Hmmm, which is it: weakest or strongest? Although the framers
could not agree on how powerful the Court was likely to be relative to the other branches
of government, there was surprisingly little debate at the Constitutional ConventionEXPLAIN HOW THE POWER
OF JUDICIAL REVIEW WAS
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