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Government Discussion Question

Order 293799 April 25, 2009 Government Discussion Question Every public policy and political issue in America can be a of judicial review and any legislation or act by any branch of the government if perceived by the Court to be in breach of the provisions of the Constitution can be annulled by it. The way the American judiciary is empowered to delve into the country’s polity raises the question if this can have a harmonizing relation with the country’s commitment to democracy and such judicial review reinforces democracy given its limitations in policymaking.
Hamilton advocated the Court’s empowerment to overturn any unconstitutional act by the Congress and observed that the judiciary “will always be the least dangerous to the political rights of the Constitution because it will be least in capacity to annoy or injure them”. His observation was on the basis that the judiciary has “no influence over either the sword or the purse” meaning the Court could not influence either the legislative or the executive. Agreeing with Hamilton’s views on the power of the Court, O’Brien in his analysis of the role of the Supreme Court in American democracy acknowledges limitations of the Court in the matter of policy making and bringing social change having by itself “no chance to resolve great issues of public policy”. However, he contradicts Hamilton’s contention that the Court is “least dangerous” and contends that it is no longer so. The Supreme Court, according to O’Brien, by getting increasingly activist has become a “storm center” of national politics.
Hamilton’s vision of a completely independent Court has not materialized and instead the judiciary has found itself acting under external pressures from the executive, legislature and the public opinion. Devoid of the power of “the sword or the purse”, the Court depends for the impact of its rulings and their influences on the policymaking on the political institutions of the country and the public opinion. The confrontations consequent upon the school desegregation ruling in the Brown v. Board of Education case (1954) is a pointer to the Court’s policymaking limitations. Hamilton’s observation that “there is no liberty if the power of judging be not separated from the legislative and executive powers” was intended to mean that people’s democratic right would be in danger if the Court does not independently act to uphold that right. The same concern is reflected in O’Brien’s argument for the Court to be an institution of prestige freeing itself from the political influence and patronage it now suffers from. It is a paradoxical situation where the Court for its very dependence on the political institutions to make its rulings pervasive itself becomes a political institution with hardly any direct accountability for its rulings. Independence of the judges according to Hamilton is a prerequisite for protecting the Constitution and the rights of the people. But O’Brien contends that the Constitution itself has provided for political influence in the selection of federal judges. According to him, “By giving the president the power to nominate and–with the advice and consent of the Senate–appoint federal judges, the Constitution provided a prescription for political struggle as much as an invitation for cooperation and compromise”.
Hamilton Alexander. “The Federalist No. 78”. The Judiciary Department, Independent Journal (1788)
O’Brien David M. “Storm Center: The Supreme Court in American Politics”. Norton, W. W. &amp. Company, Inc. (2008)