26 Section 2.3: The Policymaking role of the Supreme Court
26 Section 2.3: The Policymaking role of the Supreme Court
The Supreme Court of the United States has an extremely important policymaking role, and this has an enormous impact on the criminal justice system. As discussed in a previous section, the Supreme Court has the power of judicial review. This power was first exercised in the landmark case of Marbury v. Madison, decided in 1803. In that case, the Court struck down a statute that it considered “repugnant to the Constitution.” This case served as the precedent for judicial review, and the Supreme Court has exercised the power ever since that time. Judicial review, then, is the authority of the Supreme Court to review the acts of Congress, and determine if those acts meet the standards set forth in the Constitution. It is interesting that the power of judicial review was never directly vested in the court in the text of the Constitution. The Court (in the Marbury v. Madison decision) inferred the power for itself.
Recall that the Supreme Court has the judicial power to interpret the law. This provides yet another method for the Supreme Court to make criminal justice policy. The Due Process Clause has proven very important in the Court’s shaping of policy through this power. What exactly constitutes due process is extremely vague, and when the Court decides whether something is required by due process, they are in effect making policy. The evolution of police procedure during the Warren Court years is an enduring example of this policy-making power at work.
In theory, Supreme Court justices should practice what constitutional scholars have called judicial modesty. Judicial modesty refers to the idea that justices should only strike down acts of the legislative branch when those laws are in direct conflict with a constitutional provision. There has been a historical trend of judicial self-restraint among at least some justices. These justices feel that policy is best left in the hands of the legislative and executive branches. Striking down a law merely because a majority of justices disagrees with the legislature is wrong under this doctrine. The way our system functions, there is nothing to stop the justices from doing this. Other justices take the position that the court should be active in cases of civil liberties and civil rights. When it comes to allowing political agendas enter into the judicial decision-making process, the justices must police themselves.
Political Tendencies
Supreme Court justices, in theory, sit in order to interpret the law. This interpretation is, in reality, filtered through a political lens. No matter how well-meaning these justices may be, their perceptions of what is right in wrong in the law is impacted by their personal political beliefs. While there are always individual differences, a common way to divide the political leanings of the court is to use the terms liberal andconservative to describe both individual justices, the court in general, and particular d