Transcription
Hey everybody, welcome back. Did you know that even Supreme Court Justices disagree about how much power the Supreme Court has? But we can all agree that you should smash that like button. [Music]
You might be familiar with political ideologies like liberal and conservative, but there are also judicial philosophies. And this refers to what a judge believes the proper role of the court is. Should the Judiciary be more or less powerful? Judicial restraint suggests that the court should defer to the democratically elected branches or States basically whenever possible. It doesn't mean that courts should never overrule the other branches, but it does view that as something to be done only when something is clearly unconstitutional. Otherwise, it's better to let people who've been elected by the public make policy. So judicial restraint carves out a very limited role for the court. Between this and practicing *stare decisis*, justices are less willing to strike down legislative or executive actions or to overturn the Court's past rulings.
Judicial activism, on the other hand, embraces the court using its power, saying that through judicial review they can and should be free to overrule the other branches when they're wrong. This view doesn't focus on the idea of which parts of government are more or less Democratic and instead is fine allowing the courts to be drivers of policy change. Additionally, there may be less deference to a Court's precedence as well. In other words, to an activist Justice, if something is wrong—whether it's a past ruling or a current federal or state law—the court is justified in using its power to right that wrong.
I want to point out that in speaking appearances and their Senate confirmation hearings, most justices describe themselves as believers in judicial restraint. Chief Justice John Roberts famously said, "Judges are like umpires; umpires don't make the rules, they enforce them." Most commonly, the judicial activism label is thrown out to describe a ruling or a Justice somebody doesn't like, probably because it's a way to question whether the court should even have the ability to rule as they did. Cases like *Roe v. Wade* and *Obergefell v. Hodges*, which established abortion rights and same-sex marriage rights respectively, are seen by conservatives as activist rulings. Liberals describe rulings like *Citizens United v. FEC* and *Dobbs v. Jackson*, which struck down campaign finance laws and got rid of the right to an abortion, as judicial activism. Critics of judicial activism accuse the court of legislating from the Bench, which is to say that the court has turned itself into a policy maker instead of the umpires that they're supposed to be.
Now let's turn our attention to constitutional philosophy. What we're talking about here is the debate over how the Constitution should be interpreted. According to the strict constructionist approach, the Constitution should be interpreted pretty literally, based on what is directly said or clearly implied. So when a strict constructionist is deciding whether or not Congress is allowed to do something, their main determination is based off of whether the Constitution says Congress can do it. If it does, great, they can do it. If not, sorry, it doesn't say that, so that probably means that they can't do it. Broad or loose constructionism is the opposite. This involves a more flexible reading of the Constitution, based on its principles and vague language. This goes more with the idea of a living Constitution that evolves and changes over time. We'd associate this philosophy with things like implied powers and a broad interpretation of the Commerce Clause. So this view often supports increased Federal power.
A classic example of this debate was between Jefferson and Hamilton over whether Congress could establish a National Bank. Jefferson had the strict constructionist mindset: "Show me in the Constitution where it says Congress can charter a bank. Oh, it doesn't? That means they can't." In the story, Hamilton promoted the idea of implied powers through the Necessary and Proper Clause. You can see him using the vague language and the lack of an explicit denial that Congress can't make a bank. Well, Congress can coin and borrow money, and having a national bank would help them do that. And remember, the Elastic Clause says Congress can do things that are necessary and proper for carrying out their enumerated jobs, so they can make a National Bank.
The third constitutional philosophy is originalism, and it has become much more, more important in recent decades. Arguing that the Constitution should be primarily interpreted based on the framers' original intent, putting their intention above other considerations. All judges considered the original intent of the writers of a law, regulation, or the Constitution when trying to interpret it, but what originalism does is elevate that factor to the most important consideration, rather than just one of many things for the judge to consider. Both the originalist and strict constructionist approach often lead to a decrease in federal power. This is because the Constitution, well, it didn't give all that much power explicitly to the federal government, and there's also lots of writings by the framers showing how much they feared an overly powerful federal government.
Last up are the checks on the Supreme Court's power. An informal check is that the Judiciary lacks police power, meaning that they can't enforce their decisions, so they rely on other branches to do that for them. At times, this could mean that the presidents or States may delay implementation of the Court's decision. For example, after *Brown v. Board*, when States didn't exactly rush to desegregate schools. Presidents have the power to nominate new federal judges, which can affect future rulings by influencing the ideological makeup of the Court, sometimes even shifting the ideological balance. And Congress has a number of checks: they can propose a constitutional amendment that would nullify a ruling. For example, in 1895, the Supreme Court ruled that a federal income tax was unconstitutional, so Congress responded by proposing the 16th Amendment, which was eventually ratified by the states, and now Congress is constitutionally allowed to establish a federal income tax. They can pass legislation to modify or limit the effect of a ruling. After the Court struck down the Gun-Free School Zones Act in *U.S. v. Lopez*, Congress passed a new version specifying that prosecutors had to show that the gun in question traveled in or affected interstate commerce. Congress can also change the Court's appellate jurisdiction or change the number of justices on the court. Adding more justices to the court would allow the President and the Senate to significantly influence the ideological balance of the court. And changing the Court's jurisdiction means that Congress can pass a law stating that the Supreme Court is no longer allowed to hear First Amendment free speech cases, for example. This could be significant if Congress did this to prevent the court from reviewing the law that they had passed to prevent them from overturning it. And as mentioned, the Senate has the power to confirm judicial nominees.
All right, well that's it for the Judiciary. Great job everybody, until next time. This has been a La Money Production. Thanks again for watching. I know that test is getting close, so think about getting the ultimate review packet to help you out. Make sure you hit that like button and subscribe, ring the bell, all that stuff, and I will see you in the next video.