The Supreme Court and Judicial Review

In a recent lecture at Yale University, Supreme Court
Justice Stephen Breyer cautioned that while most citizens assume that
judicial review is an enduring part of American government, judges
should not take it for granted. He advises that if judges wish to
preserve this undemocratic power they should follow a judicial
philosophy that will “build confidence in the courts” (Breyer, 2011).
Justice Breyer goes on to describe the kind of judicial philosophy he
has in mind. However, some of his colleagues on the Supreme Court would
reject his ideas about what philosophy should guide judges.

The role of judicial philosophy (or ideology) in Supreme Court
decision-making, especially in its exercise of judicial review to
invalidate laws enacted by a democratically elected Congress or state
legislature, has become a highly contentious issue both within the
Court’s deliberations and in the larger political environment. As the
nation becomes more divided over programs and policies that inevitably
seem to come before the Supreme Court, politicians and ordinary citizens
are caught up in rhetoric about judicial activism or judicial
restraint, often with little understanding of what these terms really
mean.  

Moreover, as public perceptions of the Supreme Court become more
politicized, the legitimacy of its power becomes clouded. If the Court
is perceived as just another political institution making political
decisions, but a completely undemocratic institution because its judges
are appointed and serve for life, questions arise about whether the
Court’s power of judicial review should be strictly limited or
eliminated altogether. Justice Breyer’s warning comes to mind as the
percent of Americans approving of how the Supreme Court does its job
slid from 61% in 2009 to 46% in 2011 (Gallup, 2012).

Before writing your initial post, review the assigned resources. To
easily access the resources from the Ashford University Library, please
see the table located in the Course Materials section.

In your initial post of at least 200-250 words, respond to one of these questions: 

  • What judicial philosophy should guide the Supreme Court’s exercise of judicial review?
  • Should the Supreme Court’s power of judicial review be strictly limited by a constitutional amendment?

In answering either question, clearly state your position
(thesis) at the beginning of your post. Define important terms and
explain your position fully. Consider pro and con arguments on both
sides of your position and respond to the con arguments. Justify your
position with facts and persuasive reasoning.

Fully respond to all parts of the question. Write in your own words. Support your position with APA citations to two or
more of the required resources required for this discussion. Please be
sure that you demonstrate understanding of these resources, integrate
them into your argument, and cite them properly.

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