The judiciary, from the nature of its functions, will always be the least dangerous' in the department of power. This opinion, formulated by Alexander Hamilton in the Federalist papers, relies on a restrictive vision of the role of judges, considered as 'mouths of the law'. According to this view, judges are impartial and removed from the pressure of politics, and apply the law adopted by the legislative and executive powers; they do not create law by themselves. Is this not a distorted view of reality, at least for the higher courts in the judicial system? In the United States of America, the Supreme Court involves itself in politics. Composed of a Chief Justice and eight Associate Justices, it is the highest court, established by article 3 of the American constitution. It has two types of jurisdiction, a marginal original jurisdiction and, more importantly, an appellate jurisdiction over decisions taken by the state and federal courts.
[...] Neither group has been able to form a majority and the deciding votes have mostly been cast by Anthony Kennedy and, before her resignation in 2006, Sandra O'Connor. They have in almost every case been in the Court's majority. Sometimes they have joined the votes of their conservative colleagues in favor of conservative decisions, whereas in other occurrences, they have issued their vote in favor of liberal decisions with the moderate and liberal justices[34]. This may explain the inconsistency of the Court's philosophy. [...]
[...] In effect, the Supreme Court has the power to set its own agenda. Admittedly, the Court does not decide freely on the matters it wants to deal with, because it is unable to act unless a case is presented to it[11]. However, it can choose the cases it wants to decide from the wide range presented to it, as the Judiciary Act of 1925 has replaced appeals by “petitions for certiorari”. A party wanting to have a decision reviewed is no longer certain to obtain a decision from the Supreme Court: of more than 7,000 yearly petitions, only about 150 cases are examined by the justices[12]. [...]
[...] Borden (1849) it was held that when the case raised a political issue that could be resolved by the other branches, the Court could not give a ruling[15]. This rule was used to avoid deciding on the issue of apportionment[16]. But social pressure was so high that the Court finally had to reverse in Baker v. Carr (1962)[17]. Most of the time the justices pick up a case to settle an issue that attracts social interest. It “functions like a roving commission, or a legislative body, in responding to social forces”[18]. [...]
[...] This was a highly controversial decision: in spite of the suspicions of fraud in Florida, the Court stated that, given the constitutionally mandated timetable, there was not sufficient time to recount the votes. Thus the first count, however flawed it was, was to be used to decide the outcome of the election; this lead to Bush's victory. If the Court has been more activist, in what direction has this activism led it? In fact, it is difficult to say since no coherent political philosophy seemed to emerge from its decisions. This phenomenon is largely caused by the political polarization among the justices. [...]
[...] However, it seems that in its fear of resistance, the Court might not have been as audacious as it should have been. Ten years later, only of African American children were attending mixed schools[28]. The choice of this phrase was described later by Black, one of the justices, as a “self-inflicted wound”[29]. The implementation of the ban on racial segregation only accelerated after the adoption of the Civil Rights Act of 1964. This shows that the Court needs some cooperation from the legislative and executive powers. [...]
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