Current Issues in American Politics and Society

The most important thing to be kept in mind when speaking of the American Supreme Court is that its role is to determine the constitutionality of legislation. Another characteristic of the court is that the Supreme justices can remain on the bench for life due also to the fact that they are appointed, not elected. Whatever they have to decide the justices make decisions not using philosophical ground but the political common sense; this happens because the Supreme Court is not an institution apart from politics, but one that is an organic part of the policy and society.
In the 20th century, the Court response to the more polarized policy and society was uncertain. For helping it arbitrate between the different branches of the government, the judicial review provided the Court with a neutral point of reference, the Constitution. All through the mid-twentieth century the Court took decisions that helped to defend the individual freedoms, under the Bill of rights and the Fourteenth Amendment.
As we have seen in the previous subchapters, the Burger and the Rehnquist Courts had to deal with a number of decision involving moral and political issues. For the first ones, like abortion, gay marriages, prayers in public schools, affirmative action environmental protection and capital punishment a compromise on the part of the Court was unacceptable, the Court was in a no-win situation, whereas for the decision involving political issues the consequences have been sometimes unexpected and undesirable.
In most of the cases the Burger Court succeeded in adopting a more sociological or non-interpretative stance and seemed content to go along with public opinion.
The Rehnquist Court however was not able to create a new jurisprudence (philosophy of law), because it remain stuck to the conservative interpretation of the Constitution. Due to the public opinion which is deeply divided, the Court has been reluctant to make precedent setting constitutional decisions on issues like the affirmative action, abortion and the treatment of illegal immigrants. When it came to strike down congressional and state laws as well as to invalidate executive decisions, the Court had no problem.
For all the decisions it took, the Court had been criticized many times. All the criticism of the Court had the paradoxical effect each time of strengthening the Court as an institution. When critics of the Court called into question the wisdom, competence or honesty of particular judges or challenge their approach to constitutional interpretation of their handling of specific issues in the context of a particular case, they suggested at least implicitly that the cases in question would have been decided differently and correctly by other judges. The suggestion itself conceded that there is a mode of constitutional interpretation which, if practiced by competent and honest judges with proper understanding of the meaning of the Constitution, is entirely legitimate and appropriate. Once the particular controversies were resolved and the old justices left their court, the new justices undertook their duties with the implicit blessing of the Court's most recent critics.