The supreme court as guardian of the constitution
The judiciary interprets laws and settles disputes. The supreme court is the final court of appeal. Where the constitution is codified (written in one document) and entrenched (hard to change), the court protects it from the other branches and protects citizens' rights. This is why it is called the guardian of the constitution.
Independence is protected by: life tenure ("good behaviour"), salaries that cannot be cut, and separation from the legislature and executive.
Selection and appointment of justices
- A vacancy appears (death, retirement, rarely impeachment).
- The President nominates a candidate, usually after checking their record and judicial philosophy.
- The Senate Judiciary Committee holds public hearings and votes.
- The full Senate confirms by a simple majority.
- The justice serves for life.
Because justices serve for decades and decide big social questions, appointments are highly political. Critics point to party-line votes and a focus on ideology over legal skill.
Composition
The US Supreme Court has 9 justices: one Chief Justice and 8 Associate Justices. In the mid-2020s a majority (6 of 9) were appointed by Republican presidents and 3 by Democratic presidents, usually described as a 6โ3 conservative majority. Check the latest membership, as it changes with each vacancy.
Other models
UK: an independent selection commission recommends; the Lord Chancellor and PM pass the name on; the monarch appoints. Judges retire at 75. India: senior judges (the collegium) recommend, the President appoints.
Judicial review
Judicial review is the power of courts to check whether a law or government action fits the constitution, and to declare it void if not. In the USA it is not written in the constitution: the court claimed it in an early 1803 case. In India it is written in the constitution. Each ruling sets a precedent that lower courts must follow.
Results: the court can protect minorities and rights, but critics ask why unelected judges should overrule elected legislators.
Strict and loose constructionism
- Strict constructionism / originalism: read the constitution by its exact words and what they meant when written. Changes should come through formal amendment, not court rulings. Usually linked with conservative justices.
- Loose constructionism / living constitution: the broad words ("equal protection", "cruel and unusual") should be applied to today's society. Usually linked with liberal justices.
Most hard cases split along these lines, so the balance on the court decides outcomes.
Judicial activism and judicial restraint
Judicial activism: judges are willing to strike down laws, overturn earlier precedents and shape policy. It can expand rights (e.g. ending school segregation) or limit government. Judicial restraint: judges defer to elected branches, follow precedent and strike down laws only when clearly unconstitutional.
Activism is not the same as liberal: a conservative court that overturns long-standing precedents is also activist.
Is the US court a political body? Arguments for: political appointments, rulings on social issues, 6โ3 ideological splits. Arguments against: it uses legal reasoning, follows precedent in most cases, and justices sometimes vote against the party of the president who chose them.
Comparing supreme courts: USA and UK
| US Supreme Court | UK Supreme Court | |
|---|---|---|
| Founded | 1789 | 2009 (took over from the House of Lords) |
| Constitution | Codified, entrenched, sovereign | Uncodified; Parliament is sovereign |
| Strike down Acts? | Yes | No: can issue a declaration of incompatibility under the Human Rights Act 1998 |
| Appointment | Political: President + Senate | Independent commission |
| Tenure | Life | Until 75 |
Similarities: both are top appeal courts, both are independent, both can rule that the executive acted unlawfully (judicial review of government actions), and both set binding precedent.
Impact: the US court has a bigger political impact because it can cancel laws. The UK court has grown more important (e.g. rulings on government use of power), but Parliament keeps the final word.
Independence: UK appointments are less political; US justices have stronger tenure protection.
Try it: be the court
Write a class rule on paper ("No phones in class"). Then write a 'constitution' line: "Students may contact family in an emergency." Does the rule clash? A strict reader and a loose reader may answer differently. Vote with 9 friends. In the 3D, flip justices and see when the majority changes.
Key formulas and definitions
- Judicial review = law tested against the constitution โ upheld or struck down
- US appointment: President nominates โ Senate Judiciary Committee โ Senate majority confirms
- Majority on a 9-member court = 5
- Strict = original words; Loose = living meaning
- Activism = bold intervention; Restraint = deference to elected bodies
Worked examples
1. A law bans all public protests near government buildings. A court rules it breaks free-speech rights. Name the power used and the likely result in the USA and the UK.
Judicial review. In the USA the law can be struck down. In the UK the court can issue a declaration of incompatibility; Parliament decides whether to change the law.
2. A justice says: "The phrase 'cruel and unusual punishment' must be read by today's standards of decency." Which approach is this?
Loose constructionism (living constitution).
3. A court refuses to overturn a 40-year-old precedent even though most judges dislike it, saying change is for the legislature. Activism or restraint?
Judicial restraint: deference to precedent and to elected bodies.
4. Why might a president facing a Senate controlled by the other party struggle to fill a vacancy?
The Senate must confirm by majority; an opposing majority can delay hearings or vote the nominee down.
Common mistakes
- Thinking UK courts can strike down Acts of Parliament. They cannot; they can only declare incompatibility.
- Equating activism with liberal views. Conservative courts can be activist too.
- Saying justices are elected. In the USA they are appointed for life.
- Forgetting that the US constitution does not mention judicial review; the court claimed it in 1803.