Exemplar Star Essay Plan of the
Month
Essay Question: 7 Has the
Supreme Court become an ‘imperial judiciary’?
(Total for Question 7 = 45 marks)
Essay Jigsawing ©
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Introduction – Plan
Arthur
Schlesinger first coined the phrase “imperial” in accosiation to the
president. What he meant was that the president had over stepped his
constitutional boundaries and was undermining the checks and balances on him.
In essence ruling unchallenged. An argument can be made that Supreme court is
displaying the signs of an imperial judiciary. Since what ever they rule can
be final. Nevertheless an equally valid argument can be put forward that the
supreme court is not imperial and in many regards can be seen imperilled
since they are have no enforcement power and their decisions can be reversed
by constitutional amendment. Furthermore the rise of judicial restraint
retracts from the argument that the supreme court is indeed imperial.
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Main Body
Choose a paragraph to write in full and
then evaluate paragraph
– Many
political commentators have accused the supreme court of exercising too much
power. The increased willingness of justices to strike down federal
legislation adds weigh to the argument that the supreme court is indeed
imperial. Which essentially means they
have power and say over a variety of policies. The supreme court challenging
the congress legislation in Citizen United vs
FEC further emphasises how
active the court has become. The court
has strayed away from its original intention, in which Founding fathers such
as Jefferson intended the court to practice restraint. However on the contrary it can be equally
argued that the supreme court only strikes down legislation when necessary.
Furthermore justices, Scalia and Roberts are proponents of Judicial restraint
and intend that the Court stays within its constitutional bounds since it is
unelected and should leave the legislation duties to the Elected Bodies.
However on balance it is more convincing to say that the supreme court is
indeed imperial since whenever it strikes down legislation it is very
difficult to overturn their say. It requires a constitutional amendment and
in practicality is very difficult to cast an amendment. The court indeed operates on a level higher
then the elected bodies since it essentially has the last say on any
legislation. To challenge the courts decision is nearly impossible.
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Write
a Plan
·
It is indeed imperial
gave it self powers like judicial review which was not explicitly stated in
the constitution
·
Counter can be
impeached and have been before
·
Re-counter haven’t
been impeached since 1803 so really a useless power
Evaluate a second paragraph
Not imperial because the president appoints
them and in service to him
Since they hold duty for life they owe no
one anything they don’t appeal to voters and to the other bodies
Though too much criticism has resulted in
supreme court individuals stepping down like Harriet Miers stepped down
before even becoming a judge – they are there to server in the interest of
the people and so if the people are against them they leave their post.
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Choose two paragraphs - Then evaluate each
paragraph
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Conclusion
write in full - In conclusion it can
be assessed that the conservative fear of a too imperial supreme court is justified. With the rise of the Supreme Court having the last say in social causes such as Brown vs
Topeka and the fact the supreme court has over stepped its constitutional
bounds by granting itself new powers such as judicial review. Whilst it can
be asserted that they are still able to be checked upon by the legislative branch – the lack of impeachment highlights
how this check has not been exhausted usefully and therefore it is more
compelling to suggest that the supreme court is indeed imperial.
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Really well written essay clearly
focused on the remit of the question and good embedding of the Mark scheme
throughout. Clearly argued, supported
with evidence, evaluated and linked back to the question, clearly this is topic
you are very passionate about. I would
suggest you write this essay out in full and use this template to apply to your
other essays to improve their calibre. A
pleasure to read and will be shared as an exemplar of good practice with my
other students. Well done.
Mark Scheme
Factors which suggest that the Supreme Court has become an
imperial judiciary include:
• judicial review means that the constitution means what the
court says it means
• almost no area of public policy is immune to
constitutional challenge
• the increased willingness of justices to strike down state
and federal legislation
means that they have become arbiters over a wide range of
policy, most famously
desegregation and abortion
• many conservatives would argue that some of the rights
which the court has
established in recent years have only a tenuous basis in the
constitution
• once appointed justices have security of tenure and may
vote on the court in ways at
odds with the impression they created during their
confirmation hearings
Factors which suggest that it has not include:
• its lack of enforcement power
• the court’s decisions may be reversed by constitutional
amendment
• it has no power of initiation and must wait for cases to
be brought to it
• the reluctance of the court to become involved in some
areas, such as foreign policy
• the need for justices to give at least some regard to
public opinion and the political
context if the legitimacy of the court is to be maintained –
perhaps such
considerations influenced Justice Roberts in the Sebelius
decision.
• many liberals would argue that the court must intervene to
strike down legislation
sometimes if basic rights are to be maintained
• Congress has the power to impeach justices and vary the
size of the court – the
threat of the latter was sufficient to prompt the court to
change course in 1937
A threshold Level 2 response will typically exhibit the
following features:
• Outline awareness of the meaning of the term ‘imperial
judiciary’
• Limited knowledge of at least one way in which it might or
might not apply to the
Supreme Court
A threshold Level 3 response will typically exhibit the
following features:
• Clear understanding of the meaning of the term ‘imperial
judiciary’
• Clear explanation of at least one least one way in which
it might and one way in which it
might not apply to the Supreme Court.
