Judicial Opinions

1. Judicial Opinions There are several types of opinions – do you know which is which? Majority opinions are issued when at least five justices agree with the legal reasoning behind the decision. These opinions form new precedents that lower courts must follow. Plurality opinions are issued when several justices agree with the decision but not the legal reasoning behind it. A plurality opinion represents the views of a majority of the justices on the winning side. Concurring opinions are issued by justices who agree with the winning side but disagrees with the legal reasoning. Dissenting opinions are issued by justices who opposed the ruling decision and favored the losing party in a case. Dissenting opinions explain why the dissenting justices find the ruling decision wrong.

2. Enquiry Question: How is the Supreme Court a threat to, rather than a protector of, democracy?

3. Learning Objectives • To understand the debate over the role of the court as an unelected body in a democracy • To analyse the extent to which the court uses its power to impose its own values • To analyse the extent to which the court is fulfilling a necessary function of keeping the values of the constitution relevant to modern society

4. Does the Supreme Court have too much power for an unelected body? • Judicial review gives the Supreme Court immense power over the constitution, and, in recent years, judges have become arbiters over a wide range of public policy, most famously desegregation and abortion. • This has given rise to a debate between conservatives, who believe that activist justices have gone far beyond the court’s intended powers, and liberals, who argue the court’s expanded role is necessary to preserve the constitution’s values. YOUR TASK: • On the next slide, colour code the statements to show if they are arguments made by liberals (blue) and those arguments made by conservatives (red).

6. Learning Objectives • To understand the debate over the role of the court as an unelected body in a democracy • To analyse the extent to which the court uses its power to impose its own values • To analyse the extent to which the court is fulfilling a necessary function of keeping the values of the constitution relevant to modern society

7. “The Supreme Court's power of judicial review is not compatible with democratic government.” THINKING POINTS • Why might someone argue this? • What evidence might you use to support this argument? • How could you counter this argument? • What evidence would you use to support a counter argument? “judicial review is vulnerable to attack on two fronts. It does not, as is often claimed, provide a way for society to focus clearly on the real issues at stake when citizens disagree about rights….And it is politically illegitimate, so far as democratic values are concerned: by privileging majority voting among a small number of unelected and unaccountable judges, it disenfranchises ordinary citizens and brushes aside cherished principles of representation and political equality”.- J. Waldron

8. Judicial Review Watch the video. • This video tells you about the Supreme Court's most important case, Marbury v. Madison, and how the court granted itself the power of judicial review. • Judicial review is the power to examine and invalidate actions of the legislative and executive branches. • It happens at both the state and federal court levels, but today we're going to focus primarily on the court at the top - the Supreme Court of the United States. • Now it's important to remember that the court has granted itself these powers and they aren't found within the Constitution, but as with the executive and legislative branches, the courts rely heavily on implied powers to get stuff done.

9. Learning Objectives • To understand the debate over the role of the court as an unelected body in a democracy • To analyse the extent to which the court uses its power to impose its own values • To analyse the extent to which the court is fulfilling a necessary function of keeping the values of the constitution relevant to modern society

10. Judicial Decisions Watch the video. • This video focuses on the factors that influence judicial decisions. • As you may have noticed, the Supreme Court recently handed down some pretty big decisions on same-sex marriage (in Obergefell v Hodges) and the Affordable Care Act (in King v. Burwell). • Now, it's important to remember that these decisions are not made in a vacuum, but influenced by the other branches of government, political affiliations, and past court decisions. • We’re also talk about a judge’s judicial philosophy - that is their relative restraint or activism in making decisions on laws. • Judicial restraint is often equated with conservatism, but as we’ll show you, this is not always the case. 

11. Civil Rights & Liberties • Freedom of Religion • Freedom of Speech • Freedom of the Press • Search and Seizure • Due Process of Law • Equal Protection Clause • Sex Discrimination • Discrimination • Affirmative Action • YOUR TASK: • You will be allocated one area to examine in relation to Supreme Court decisions and the protection of rights. • How is the Supreme Court fulfilling the necessary function of keeping the values of the constitution relevant to modern society in this area? • What evidence is there to support or challenge this claim?

12. Learning Objectives • To understand the debate over the role of the court as an unelected body in a democracy • To analyse the extent to which the court uses its power to impose its own values • To analyse the extent to which the court is fulfilling a necessary function of keeping the values of the constitution relevant to modern society

13. Homework Application Task: Does the Supreme Court have too much power for an unelected body? (45) Flipped Learning Preparation Task: Supreme Court and Political Power (McKay p330-343) Stretch & Challenge Task NY Times: The Supreme Court’s Power has become excessive