chAPTeR TweLve • The JudIcIARy 289
Judicial
Implementation
The way in which court
decisions are translated
into action.replaced Sandra Day O’Connor. Unlike O’Connor, Alito was firmly in the conservative
camp. This fact had consequences. In a 2007 case, for example, the Court upheld a 2003
federal law banning partial birth abortion, by a close (five-to-four) vote.^11 The Supreme
Court’s conservative drift continued in the following years. In 2008, for example, the Court
established the right of individuals to own guns for private use,^12 and it upheld lethal injec-
tion as an execution method.^13
Although the Roberts Court is widely characterized as conservative, its philosophy is
not identical to the conservatism of the Republicans in Congress or the broader conserva-
tive movement. True, justices such as Scalia and Thomas can rightly be characterized as in
full agreement with the conservative movement. Justice Kennedy and even Chief Justice
Roberts, however, clearly “march to their own drummer.” As one example, the Court has
shown a degree of sympathy for the rights of gay men and lesbians that cannot be found
in the Republican Party platform. It was Justice Kennedy, after all, who in 2003 wrote
the opinion in Lawrence v. Texas striking down laws that ban gay sex nationwide.^14 Chief
Justice Roberts demonstrated his independence in 2012 by authoring the opinion that
affirmed the constitutionality of Obamacare.^15
The Court provided more examples of its brand of conservatism in 2013. The Court
continued to take a favorable approach to gay rights, as described in chapters 3 and 5.
It ruled that the federal government could not refuse to recognize same-sex marriages
authorized by the states.^16 In contrast, to the satisfaction of conservatives, the Court
struck down part of the Voting Rights Act of 1965.^17 Many observers thought that the
Court would take the opportunity provided by a Texas case to strike down affirmative
action programs in public colleges altogether. The Court avoided such a ruling, however,
as described in the Politics and Economics feature on the following page.^18what checks our courts?
Our judicial system is one of the most independent in the world. But the courts do not
have absolute independence, for they are part of the political process. Political checks limit
the extent to which courts can exercise judicial review and engage in an activist policy.
These checks are exercised by the executive branch, the legislature, the public, and, finally,
the judiciary itself.executive checks. President Andrew Jackson was once supposed to have said, after
Chief Justice John Marshall made an unpopular decision, “John Marshall has made his
decision; now let him enforce it.”^19 This purported remark goes to the heart of judicial
implementation—the enforcement of judicial decisions in such a way that those deci-
sions are translated into policy. The Supreme Court simply does not have any enforcement
powers, and whether a decision will be implemented depends on the cooperation of the
other two branches of government. Rarely, though, will a president refuse to enforce a
Supreme Court decision, as President Jackson did. To take such an action could mean a- Gonzales v. Carhart, 550 U.S. 124 (2007).
- District of Columbia v. Heller, 554 U.S. 570 (2008).
- Baze v. Rees, 553 U.S. 35 (2008).
- 539 U.S. 558 (2003).
- National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012).
- United States v. Windsor, 570 U.S. ___ (2013).
- Shelby County v. Holder, 570 U.S. ___ (2013).
- Fisher v. University of Texas, 570 U.S. ___ (2013).
- The decision that Jackson was referring to was Cherokee Nation v. Georgia, 30 U.S. 1 (1831).
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