In my argument I will also consider the

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In this essay, I will make the argument that the Supreme Court should be encouraged to have an activist role and take on divisive political issues. I will consider the important role the Court has as the unelected, co-equal branch of government to check democratic excesses and protect the rights of minorities. Historically speaking the court has been effective in protecting minorities and extending rights to them when congress has failed to do so. Taking a deferential role therefore would be to abandon its duty as a co-equal branch of government. In short, it is more dangerous for the court to be deferential than to take an activist role. Whilst making my argument I will also consider the various issues that surround the Supreme Court such as the debate on what role the court has constitutionally and the limits on the exercise of judicial review. There are also the political issues that surround the court such as the debate around the Second amendment, gay marriage and Roe vs Wade. Historically, one of the issues has been the independence of the court. Hamilton states in Federalist paper 78 that “The complete independence of the courts of justice is peculiarly essential in a limited Constitution”1. The founders understood that having the courts elected would expose justices to political pressures that would lead to politically motivated rulings and would eventually corrupt it. In Federalist Paper 78 Hamilton states, “the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority”2. Hamilton is definitive in his view that the role of the court is to be both an arbiter in disputes and serve as a protection against legislative abuses of individual rights. Some have argued that the courts should be exposed to popular will and that its existence is anti-democratic. However, the purpose of the court is to be an independent judicial body and exposing it to democratic forces would make it impossible for it to serve its purpose. As well as this, the removal of direct political pressure removes the self-preservationist instinct that characterises all politicians and allows justices to make rulings and better serve their constitutional role without the fear of political retribution. The court has come to be seen as an overtly political institution, especially by those who believe in Judicial restraint. It is generally accepted that the president selects justices purely based on policy preferences, with little care for the qualification of the judge. The Supreme Court has come to be weaponised as a political tool as shown by the election of Donald Trump, who ran specifically on the issue of the court (de Vogue, 2017). The politicisation of the court renders it no longer capable of performing its role of settling disputes that theoretically it was tasked with. The state of the court is lamented by U.S. Appellate Court Judge Richard Posner who says the court is “Mediocre and highly politicized” (Janssen, 2017). The ‘politicisation’ of the court I would argue is simply due to the fact that interpreting the constitution requires you to go beyond it and make considerations for the current political and social climate. It would be naive to think that one could make decisions in a vacuum and that contemporary political and social conditions are impossible to discount. As I touched on previously, there exists an uneasy tension between constitutionalism and democracy with the Supreme Court as the embodiment of this tension. In West Virginia v Barnette, Justice Robert Jackson wrote the majority opinion stating “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections”3. If you take Jackson’s view, the constitution serves to take away decision-making from the masses and suggests that constitutionalism itself is explicitly anti-democratic (Holmes, 1995). This type of ‘negative constitutionalism’ seeks to protect the myopic masses from themselves and individuals who may find themselves in the crosshairs (Holmes, 1995). The founders themselves were wary of democracy for example Maddison stated, “Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths”4. The founders did not seem particularly fond of the idea of giving power to the people and it seems they desired to keep them as far from the centres of power as possible. The court was one means of ensuring the survival of constitutionalism and keeping mob rule at bay. To the founders, sacrificing democracy in favour of constitutionalism was a price worth paying to ensure the freedom of the individual. Hamilton seems to explicitly suggest that mob rule and a despotic legislature are far more of a concern than judicial overreach as he states “liberty can have nothing to fear from the judiciary alone”5. A strong judiciary, in the eyes of Hamilton, does not seem to be much of a threat to freedom or an elected government. This view however is not shared by those who believe in judicial restraint and see the court as overreaching when it arbitrates and overrides state laws on divisive political issues like gay marriage or abortion. The notion of ‘judicial supremacy’ is often thrown around when specifically discussing decisions like Obergefell v. Hodges, which legalised gay marriage federally, nullifying laws prohibiting same sex-marriage in 13 states (Liptak, 2015). Those opposed to the decision argue that it is not the courts job to redefine marriage and that decisions such as gay marriage should be left to the states. Those who make the argument to leave the decision to the state are essentially making the case for majoritarianism and are implicitly saying that individual rights should be left to the whims of the voters. If you take this viewpoint to its logical conclusion then the Brown v Board of Education decision should not have been made as it took away the rights of states to decide on the issue of school segregation. Constitutionally the argument falls flat as it is majoritarian and puts rights up to a vote, something that Hamilton warned against. The bill of rights and Supreme Court exist precisely as a bulwark to prevent this type of tyrannical majoritarian argument. The states’ rights argument could be made for any decision protecting minority rights but it is not curiously enough. The roots of the opposition to the Obergefell v Hodges decision are moralistic and religious with those in the religious majority attempting to prevent the minority in this case, gay couples, from having equal legal standing as straight couples. The second aspect of the argument surrounds the definition of marriage and whether the courts should be ‘redefining’ marriage. Constitutionally there is no definition of marriage and having a religiously based definition of marriage would be violating the establishment clause. Therefore, the arguments put forth against gay marriage do not have any constitutional standing and the courts are simply performing the role they were envisioned to perform which in this case is protect a minority group against the tyranny of the majority. The Obergefell v Hodges decision and the following outraged accusations of ‘judicial supremacy’ demonstrated the fundamental misunderstanding of the role of the court. Judicial review, a power the court gained thanks to the Marbury v Madison decision, gives the court the power to strike down laws and rule on their constitutionality. The court exercising this power is fulfilling its constitutional duty as one of the co-equal branches of government. ‘Judicial supremacy’ is something that does not exist and is nothing short of political demagoguery coming from dishonest political actors unhappy that the court did not rule their way. The real question when discussing the court is whether we prefer an activist court or a deferential one and I would argue that the benefits of an activist court outweigh the benefits of a deferential court. I am not making the argument that an activist court is perfect and that it has no flaws; there is no question of the dangers of having a too powerful, unaccountable branch of government. When considering what type of court we prefer, we must consider the historical record of the court and it is clear that, of the worst court decisions, nearly all were the court being too deferential. For example you can take the Korematsu decision where the Supreme Court ruled 6-3 to uphold the conviction of Fred Korematsu, a Japanese-American who refused to leave his home after FDR had ordered the internment of all who had Japanese heritage (, 2015). This essentially acted as a rubber stamp on the internment with the courts choosing to be deferential and not interfering. There are many other cases where the court shamelessly abdicated its duty such as Plessy v. Ferguson, Bradwell v. State, Dred Scott v. Sandford etc. Therefore, when the court does not intervene it abdicates its important function to stand against the mob, in protection of the individual. Taking everything into consideration, I conclude that an activist court should be encouraged as it ensures the individuals liberty against the mob. Deferential courts abandon their role as the lone defence against the tyranny of majority and the congress. We cannot allow the slippery slope fallacy to blind us from the countless examples historically where the court has failed in being far too deferential to the masses. The founders did not put the constitution in the hands of the masses for good reason and one should not be fooled into handing it to them. The court is there to protect the individual from the people and protect the people from themselves and an activist court is the only way to do so.

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