THE SUPREME COURT AND POLICY

 Some say the Court should only settle disputes, but it is clear that it does much more than that

• • It is clearly more than this
• The Question of Judicial Activism
  • Acts that go beyond simple interpretation, to creating laws
  • (The Problem on the term, JUDICIAL ACTIVISM: There are two parallel understandings of judicial activism; one refers to a derogatory way the justice thinks or acts or; the other referring to a court going beyond simply interpreting the law to creating the law or ordering some particular action.)
    • Judicial Review
      • Started with Marbury vs. Madison
        • JUDICIAL ACTIVISM comes on its own during the 20^th century (It says that the court can direct or would force Madison to appoint Marbury)
      • Aggressively reviewing and overturning Federal or Congressional Statutes

• Judicial Review
  • Overturning old supreme court cases
    • Plessy vs. Ferguson and Brown vs. Board of Education
  • Political Issues
    • Bush versus Gore
  • Remedies
    • The Court ordering some action to right a governmental wrong
    • Actually forcing people to do things in order to fix a problem
    • Court requiring other government agencies to do something

• BUSH versus GORE
  • Background
    • The 2000 presidential election was really close
      • Really Really close
      • I’m not kidding.
      • Here’s how the Popular Vote broke down:
        • BUSH: 50,456,002 votes
        • GORE: 50,999,897 votes
          • Two things become apparent
            • Notice Gore actually won more popular votes (3^rd time in history)
            • For comparison, in 2012
              • OBAMA: 65,899,660 votes
              • ROMNEY: 60,932,152 votes

Click edit button to change this text. Lorem ipsum dolor sit amet, consectetur adipiscing elit. Ut elit tellus, luctus nec ullamcorper mattis, pulvinar dapibus leo.Picture: How each individual country voted in the 2000 elections (Bush vs. Gore)

*The darker the red, the higher percentage of Republican votes (rural areas)

*The darker the blue, the higher percentage of Democratic votes (major cities, metropolitan cities)

BUSH VERSUS GORE

–        Essentially the election was going to come down to Florida

o   In 2000, Florida had 25 electoral votes, and getting Florida would push either candidate above the necessary 270 (If the candidate does not get Florida, the candidate loses)

o   Florida was even closer!

§  Bush was determined to have won Florida, but only by 1,784 votes

·        A vote this close was required to have a recount, since it is much smaller than the margin of error

§  This is where things start to get a bit crazy.

·        Florida automatically recounts ballots by machine

o   Al Gore requests that certain key counties recount ballots by hand (He is allowed to do this under Florida State Law)

·        After some confusion, 7 days later Florida declares that Bush won Florida and thus the presidency.

·        Then everyone sues everybody else.

o   Al Gore’s supporters (supposedly without Gore’s knowledge) sues the State of Florida and Bush supporters

o   Bush supporters countersue

BUSH VERSUS GORE

–        This went first to the Florida Supreme Court (It takes the case up immediately)

o   Then quickly to the US Supreme Court

–        The Florida Supreme Court ordered a manual recount

o   Recount all the votes in a few countries by hand (The FL Supreme Court chooses the counties instead of Al Gore)

§  Look at rejected ballots again (Ballots were punch card ballots)

o   The US Supreme Court stopped this and took up the case themselves.

–        Fundamental Questions:

o   Was the recount constitutional?

§  If not, how do we pick a president?

–        Decisions

o   The Florida recount violated the 14^th amendment (Standard of Equal Protection of the Law)

§  Can’t treat some votes as if they are more special than others

§  The only thing the Supreme Court has is the original decision by Florida, which we have to go by. Bush wins the election.

o   They also made a per curiam decision

§  It only applies for this one case. Does not become precedent.

SUPREME COURT and INTERPRETATION

–        The Debate over Interpretation

o   How should you look at the Constitution? (The Constitution is quite vague)

§  Original Intent/Strict Constitutionalism

·        Guide interpretation by what the intent of the founders were and what the text says (Strictly, literally)

§  Opponents/Judicial Activism

·        We should reconcile the fundamental principles of the Constitution with the changing conditions of America (The principles are more important and should be used in guiding the decision, not the wording)

§  How should we proceed?

THE SUPREME COURT and OUTSIDERS

–        Social movements

o   Most get things done In the Supreme Court

§  Test Case – a case designed to test the constitutionality of a law (Organic cases on the other hand, is another type of case that originates in original or real disputes)

o   Friends of the Courts (People outside the courts can influence the court in providing opinions)

§  Help courts keep track of public opinion

§  Public Opinion

·        Courts are still swayed by public opinion even though they are designed to be insulated from it