Judicial Opinions

There are several types of opinions – do you know which is which?

Keyword Definition
Majority opinions are issued by justices who agree with the winning side but
Majority opinions disagrees
are issuedwith the legal
when reasoning.
at least five justices agree with
the legal opinions
Dissenting reasoningare
behind
issued the
whendecision. These
at least five opinions
justices form
agree with thenew
legal
precedents that lower courts
reasoning mustthefollow.
behind decision. These opinions form new
Plurality opinions precedents
are issuedthat lower
when courts justices
several must follow.
agree with the
decisionopinions
Plurality but not the
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when several it.agree
justices A plurality
with theopinion
decision but
represents the viewsnotofthealegal
majority of the
reasoning justices
behind on theopinion
it. A plurality winning side.
Concurring opinions are issued
represents by justices
the views who of
of a majority agree with the
the justices on the
winning side.
winning side but disagrees with the legal reasoning.
Dissentingopinions
Concurring opinionsareare issued
issued by justices
by justices who opposed
who opposed the rulingthe ruling
decision and
favored
decision and favored the losing
the losing partyininaacase.
party case. Dissenting
Dissenting opinions
opinions
explain why the dissenting justices find the ruling decision
explain why the dissenting
wrong.
justices find the ruling decision wrong.
 Enquiry Question: How is the Supreme Court a
threat to, rather than a protector of, democracy?
 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
 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).
The court, as an unelected branch, should adhere to For the constitutional values of liberty and equality
the principle of legislative deference, i.e. it should to be upheld, the constitution needs to be a ‘living
only overrule legislation passed by the people’s constitution’ and interpreted to meet the needs of
elected representatives if it unambiguously violates modern society; if it is not, it will become
the constitution. increasingly irrelevant.
The combination of a separated system of Because judicial review is not explicitly specified in
government and risk-averse politicians means that the constitution, and the judiciary was envisaged by
legislation in contentious areas is unlikely to be the framers as the ‘least dangerous’ branch, the
passed, and that, if the court does not act, access to court is effectively uncheckable.
basic rights could be denied indefinitely.
If, in overriding legislators, the court is seen to Cases such as Plessy v Ferguson show that, if the
sanction a particular political viewpoint as court is willing to overturn only the most flagrant
‘constitutional’, e.g. in its striking down of the New breaches of the constitution, basic rights will be
Deal legislation of the 1930s, then it undermines its denied.
own legitimacy.
There are checks on the court; for example, Congress If some parts of the constitution are ambiguous,
can (and has) initiated constitutional amendments in then - since it is impossible to show a clear violation -
response to its decisions. this should act as a brake on the expansion of judicial
review, but instead, in the hands of liberals, has
become the basis for it.
Judges are expert in law, not social policy, and Conservatives are inconsistent, as conservative
consequently judge-made social policy is often judges are themselves willing to exploit
ineffective and unworkable in practice. constitutional ambiguities to advance their agenda,
e.g. the Roberts court has struck down gun control
legislation in cases such as McDonald v Chicago
 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
 “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
 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.
 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
 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.
 1. Civil Rights & Liberties
YOUR TASK: 2. Freedom of Religion
You will be allocated one area to examine in
3. Freedom of Speech
relation to Supreme Court decisions and the
4. Freedom of the Press
protection of rights.
• How is the Supreme Court fulfilling the 5. Search and Seizure
necessary function of keeping the values 6. Due Process of Law
of the constitution relevant to modern 7. Equal Protection Clause
society in this area? 8. Sex Discrimination
• What evidence is there to support or 9. Discrimination
challenge this claim? 10. Affirmative Action
 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
 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