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Papers > Politics > Judicial review ensures the court cannot avoid a political role but the judges are not politicians
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Judicial review ensures the court cannot avoid a political role but the judges are not politicians |
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“Judicial review ensures the court cannot avoid a political role, but the judges are not politicians. They provide constitutional solutions to political problems. ... We know that the original framers of the United States Constitution intended to create a Supreme Court at the head of the Judicial Branch of the Federal Government: but exactly what kind of court, they did not make fully clear. Most puzzling of all, they gave no indication in the written text of the Constitution that the Supreme Court possessed the power of judicial review; and especially they did not state that it possessed the power to declare acts of Congress unconstitutional. In other words, what we know today of the powers of the Supreme Court are nowhere to be found in the Constitution. ... 78 of the Federalist Papers , Alexander Hamilton gave a detailed justification, not merely of the design of the Judicial Branch of the proposed new government, but also of the power of judicial review. ... Hamilton argued that logic required the Supreme Court to be allocated the task of interpreting the Constitution and, therefore, the right to declare legislative acts void when they are deemed to conflict with it. It appears therefore that an institution with great powers was set up by the most important document in American political history with a brief to protect the meaning of the Constitution, or the Justices’ discernment of its meaning, against decisions in State courts or even Acts of Congress which they deemed to be unconstitutional or against the true meaning and spirit of the constitution. In other words the Court would be the final arbiter in interpreting and applying the Constitution, requiring at all times objective and non-political judgement. Thus, the Supreme Court was created as a legal and judicial body, intended to complement rather than rival or duplicate the political branches of the Federal Government. Yet a review of its landmark decisions proves that the very concept of judicial review in a constitutional democracy has proven to be inherently political. After a somewhat slow start, and with its power not explicitly authorised in either the Constitution or the Judiciary Act of 1789, the Supreme Court began its life as an institution with uncertain authority and relatively little prestige. ... But it is worth noting here that Marshall, until his Supreme Court appointment, had been the ultimate politician, serving in Adams’ cabinet, a major Republican. Oliver Wendell Holmes, perhaps the most famous Supreme Court Justice said a Supreme Court Justice should be a “combination of Justinian, Jesus Christ and John Marshall” . The broad framework for the appointment of Supreme Court Justices is delineated in Article 11, Section 2 of the Constitution, which states that the President ‘shall nominate, and by and with the Advice and Consent of the Senate, shall appoint….Judges of the Supreme Court. Only the President then serving may nominate a Justice of the Supreme Court. The Constitution does not suggest either what criteria should guide the President in his choice of nominee, or on what grounds the Senate should confirm or reject such a nominee. There are no formal qualifications required for a Supreme Court Justice -–not even a law degree or prior judicial experience. As a result, the President and Senate were left entirely to their own devices in deciding how to approach their joint power of Supreme Court appointment. The approach of the Presidential schools holds that the President is free to nominate whomsoever he wishes, and that his choice may be based upon a variety of criteria, including his nominee’s political, judicial and philosophical views. Conversely, the Senate is entitled to reject a nominee who has been demonstrated to be dishonest or corrupt, or who is merely a crony of the President, with no demonstrated capacity for judicial tasks. |
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Title: Judicial review ensures the court cannot avoid a political role but the judges are not politicians
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