Reference no: EM133389807

Question: The Supreme Court of the United States (SCOTUS) is viewed widely as one of the most powerful courts in the world and has weighed in on important policy decisions throughout the 20th century. As we discussed the previous week, argues that the SCOTUS's series of rulings, from ending segregation to protecting women's rights, throughout the 20th century amount to a "rights revolution."

During the former U.S. President Trump's term, the Court's balance of power markedly shifted to a conservative position as he got to appoint three justices-which could be considered an unusual luck for a president. In a series of judgments, the SCOTUS retracted some of the civil liberties granted in previous rulings, most notably women's right to have an abortion by overturning Roe v. Wade.

Some observers (both liberal and conservative) argue that SCOTUS had overstepped its boundary in previous rulings, like Roe v Wade. Judges lack democratic legitimacy to make laws and that it should never be up to them to decide whether women should have access to abortion or not. Such contentious issues should be decided by legislators. Klein, in particular, points out the dangers of the U.S. legal system that gives too much power to judges.

Other observers (like Reinhardt and Cole), on the other hand, point out that it is inevitable that judges will engage in policymaking. And, when they do engage in policymaking, they should make their decisions by taking changing social norms into account, rather than decide according to what the original drafters of the Constitution would do. This latter view is also known as "originalism" in interpreting the Constitution.

The authors assigned for this deliberation week are reflecting on whether the SCOTUS and other federal courts should engage in policy-making or they should not have this role. Two of the readings (by Reinhardt and Graglia) are part of a roundtable symposium (1994) amongst legal scholars and political scientists to discuss the topic: the U.S. Supreme Court as a Political Institution.

Historically, those who argued that judges should refrain from policymaking had been conservative jurists (e.g. Antonin Scalia). Recently, however, some leftwing/liberal scholars and intellectuals have argued that judges' political impact should be restrained, as proposed by Ezra Klein. As you will see, the readings demonstrate different perspectives, thus, illustrating there is little consensus on the "correct" role of the U.S. Supreme Court and other courts more generally. This also means that taking a position on this prompt does not automatically make you a conservative or a leftist.

"What should be the role of judges in the American system of government? Should judges be policymakers or should they confine themselves to deciding cases by applying the policies, expressed in law, made by others?" (Graglia 1994, p. 119).

1. Do judges have a policy-making role in the American system of government? Graglia, Lino A . Harvard Journal of Law and Public Policy ; Cambridge Vol. 17, Iss. 1, (Winter 1994):
119.

2. The Supreme Court as a partially political institution Reinhardt, Stephen . Harvard Journal of Law and Public Policy ; Cambridge Vol. 17, Iss. 1, (Winter 1994): 149.

3. "Dobbs is not the only reason to question the legitimacy of the Supreme Court" By Ezra Klein

4. "Originalism's Charade" by David Cole