The Supreme Court In American Politics / Edition 1

The Supreme Court In American Politics / Edition 1

by Richard Pacelle
     
 

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ISBN-10: 0813367530

ISBN-13: 9780813367538

Pub. Date: 03/01/2001

Publisher: Westview Press


When the Supreme Court's effectively decided the presidential election of 2000, it decision illustrated a classic question in American politics: what is the appropriate role for the Supreme Court? The dilemma is between judicial activism, the Court's willingness to make significant changes in public policy, and judicial restraint, the Court's willingness to

Overview


When the Supreme Court's effectively decided the presidential election of 2000, it decision illustrated a classic question in American politics: what is the appropriate role for the Supreme Court? The dilemma is between judicial activism, the Court's willingness to make significant changes in public policy, and judicial restraint, the Court's willingness to confine the use and extent of its power. While the Framers of the Constitution felt that the judiciary would be the "least dangerous branch" of government, many have come to the conclusion that courts govern America, a notion at odds with democratic government.Richard Pacelle traces the historical ebb and flow of the Court's role in the critical issues of American politics: slavery, free speech, religion, abortion, and affirmative action. Pacelle examines the arguments for judicial restraint, including that unelected judges making policy runs against democratic principles, and the arguments for judicial activism, including the important role the court has played as a protector of minority rights. Pacelle suggests that there needs to be a balance between judicial activism and restraint in light of the constraints on the institution and its power. Stimulating and sure to generate discussion, The Supreme Court in American Politics is a concise supplemental text for American Government and Judicial Politics course.

Product Details

ISBN-13:
9780813367538
Publisher:
Westview Press
Publication date:
03/01/2001
Series:
Dilemmas in American Politics Series
Edition description:
REV
Pages:
208
Product dimensions:
6.00(w) x 9.00(h) x (d)

Related Subjects

Table of Contents

List of Tables and Illustrationsxiii
Acknowledgmentsxv
Introduction: A Five-Week Election Night Ends Up in the Supreme Court1
1The Supreme Court: Law or Politics?7
Defining the Dilemma11
Making Public Policy: Does the Supreme Court Take Part?12
The Supreme Court17
Unraveling the Dilemma20
Statutory Construction: Changing the Meaning23
Judicial Review24
Overturning Precedent26
Interpreting and Revising Constitutional Provisions27
Evaluating the Role of the Supreme Court28
Conclusion30
2The Historical Dimension of the Dilemma33
The Marshall Court (1801-1835)36
The Taney Court (1836-1864)38
Substantive Due Process39
The Preferred Position Doctrine: Selective Judicial Activism42
The Burger and Rehnquist Courts: Return to Restraint?45
Conclusion47
3The Democratic Dimension of the Dilemma: Unelected Policymaking51
Democratic Theory and the Supreme Court55
Policymaking Against Majority Will58
Review Compatible with Democratic Values60
Deliberately Undemocratic62
Are the Elected Branches Democratic?63
The Practical Realities of American Politics66
A Pluralist Role for the Supreme Court67
Rights and Liberties: The Province of the Supreme Court70
Democratic Concerns Revisited72
Conclusion74
4The Institutional Dimension of the Dilemma: Constitutional and Self-Imposed Limitations77
The Limits of the Judicial Branch80
Jurisdiction84
Justiciability86
Checks and Balances92
Exposing the Supreme Court96
The Power and Potential of the Supreme Court98
Conclusion101
5The Judicial Capacity Dimension of the Dilemma: Does the Supreme Court Have the Ability to Make Policy?105
The Supreme Court: Powerful Enough or Too Weak?108
The Supreme Court's Ability to Make Policy109
Assessing Judicial Capacity111
The Indictment Against the Judiciary116
Viable Alternatives to the Judiciary119
The Case for Relative Capacity120
Is Capacity A Barrier?126
Conclusion128
6The Individual Dimension of the Dilemma: The Bases for Decisions131
The Dilemma for the Individual Justice135
Legal Factors in Decisionmaking141
Problems with the Legal Factors144
Extralegal Factors in Decisionmaking147
Relying on the Constitution: Legal or Extralegal?149
Reconciling the Two Perspectives151
Conclusion153
7Toward Resolving the Dilemma: A Return to the Recent Past155
The Mysterious Branch of Government Nobody Knows157
Recognizing the Constraints and Potential159
Designing a Role for the Supreme Court162
Protecting the Court's Legitimacy168
References171
Index179

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