To what extent does the Supreme Court protect our rights?

                The Supreme Court of the United States both upholds our rights, and undermines our rights. This should be relatively self-evident from even a cursory understanding of judicial cases. The judicial branch can only interpret the constitution - and the law - as it stands. As such, there will be times when the Supreme Court upholds the rights of individuals (perhaps based on the first amendment or the equal protection clause). However, there will also be several judgments that are invariably to the detriment of rights held in the states. For instance, the tenth amendment may well take precedence over the rights of aggrieved individuals within that particular state. This is very much in the nature of rights in political discourse. Another element to consider in this section is the limited power of the judiciary. As the weakest branch of government it must face certain constraints. There are few better illustrations from recent times than the war against terror. On a number of occasions, the right to due process would appear to have been denied to those classed as enemy combatants. The judicial branch has been largely ineffective in preventing this illiberal trend.

                When assessing the extent to which the Supreme Court protects our rights; we might cite examples relevant to reproductive rights, affirmative action, the second amendment and so on. In the specific context of the war against terror one might also consider the first amendment, the fourth amendment and the fifth. It must also be noted here that liberals and conservatives do place a slightly different emphasis upon rights. For example, conservatives may welcome a judgment which protects the unborn child or the right of an individual to own a gun. Equally, liberals may welcome a ruling that sought to protect reproductive rights. Liberals are also more supportive of those rulings that protect the rights of minority groups. For instance, a ruling in favor of gay marriage would be championed by liberals as an example of the Supreme Court upholding our rights. However, social conservatives wouldn't share this assessment.

The interpretation put forward by members of the Supreme Court will inevitably have implications for the resultant verdict. As such, the ideological perspective taken by the Court is of clear interest to anyone studying American politics. The Roberts Court holds a slight conservative majority, and could be characterized as one of judicial restraint rather than activism. Most would accept that activist courts have often led to significant progress in terms of protecting the rights of citizens. One would only have to consider the Warren Court in regards to civil rights and women’s rights. However, judgments made on the basis of judicial restraint could be interpreted as upholding the rights of citizens. For example, the Heller ruling (2008) was welcomed by conservatives across the country.

The whole issue of protecting our rights bears obvious relevance towards the relative power of the judicial branch. The simple fact is that the judiciary cannot enforce their decisions. As such, they can only offer limited protection for our rights. This has been graphically exposed during the war on terror. That said; one might argue that the Supreme Court can adequately defend our rights. There are three points to consider here.

The first of these relates to the system of checks and balances within the US. As a result of this, the judicial branch of government can limit the power of the executive and the legislature. For instance, judicial review helps to maintain the constitutional limit placed upon politicians and – in doing so – serves to protect the rights of American citizens. The Court even plays a role in terms of removing an elected official from power. If a member of the legislature or the executive exceeds their constitutionally-defined role, the judiciary has the power to do something about this. Naturally, this may hold some relevance towards the protection of our rights. The Court can also stand up for the rights of those marginalized within society. For instance, in the case of Rasul v. Bush (2004), the Court ruled that those classed as 'enemy combatants' were not outside the jurisdiction of the American court system.

The second point to consider is that the SCOTUS holds judicial independence. As such, the Supreme Court can make decisions free from political influence. In doing so, they can successfully defend the rights of citizens. In the absence of judicial independence, the judicial branch of government would be relatively powerless against the actions of the other two branches. This is something to be grateful of. There are millions of people throughout the world who do not hold such a privilege. Although our system is far from perfect, the judicial branch is by international standards relatively autonomous from both Congress and the White House.

The third point relates to the Constitution itself. Those rights and liberties specified within the codified document, alongside subsequent amendments; are clearly designed to uphold our rights. Simply in terms of performing its job, the Supreme Court can therefore protect our rights and liberties. Take the case of the equal protection clause of the fourteenth amendment. The recent case of Obergefell v. Hodges (2015) has served to protect our right to marry someone we love regardless of our sexual orientation. Given time, same-sex marriage may well be seen in the same historical context as inter-racial marriage. It should be noted here that in the case of Virginia v. Loving (1967), the SCOTUS ruled in favor of an inter-racial couple who were prevented from living as a married couple in their home state after getting hitched in the nation’s capital. In this famous judgment, the courts ruled that marriage is a basic civil right based upon the equal protection clause.

There are, as always, two sides to consider. When considering the other side of the argument, it has to be recognized that the Supreme Court has no power of enforcement. There is no getting away from this crucial limitation. At the end of the day, members of the Supreme Court can only make rulings. Frankly, there is no guarantee that Congress, the President or the states will do what is required to support the decision. For example, many southern states simply refused to implement the Brown ruling. It was not until the 1960s that the policy began to be implemented to any significant degree within the southern states.

The second point to reflect upon is that the Supreme Court has a very narrow remit. It must wait for others to bring a case forward, and it can only consider those issues of a constitutional character. As such, the Supreme Court can do little to protect our rights unless it touches upon the Constitution and a particular case has been brought to the court’s attention. One might also consider judicial restraint in this context. The remit of the Supreme Court has a self-imposed limitation when its members adopt the philosophy of judicial restraint.

Thirdly, it should be noted that members of the hallowed bench are required to maintain a stance of judicial neutrality. In other words, a liberal judge such as Ginsburg and Breyer must put to one side their own personal views on the second amendment. Equally, a conservative figure such as Thomas must do the same over rulings that concern abortion or gay marriage. In doing so, a judge may have to reach a decision that he/she believes will do nothing to protect or uphold citizens’ rights. All a member of the Court can actually do is to interpret the Constitution and the law as it currently stands.

The fourth and final point to consider is the relatively weak status of the judiciary. As the least dangerous branch of government the judiciary lacks sufficient power to be completely autonomous from either the legislature or the executive. For instance, the number of members on the bench and their salary levels are set by Congress. Moreover, Congress can always create a new law if they disapprove of a ruling made by the Supreme Court – provided that the new piece of legislation is consistent with the judicial interpretation of the Supreme Court.

Any balanced assessment of the ability of the Supreme Court to defend the rights of American citizens would surely have to make some comparison with pressure groups and the American people. In doing so, it must be acknowledged that the role of the Supreme Court is relatively marginal when compared to the role played by pressure groups (and in a wider sense the American people) in terms of defending rights and liberties. Both play a more important role in defending and protecting individual rights and liberties. To take one particular example, the Supreme Court could not rule on a test case unless a pressure group or other interested party had brought the case to the attention of the judicial bench. Yet having said this, the SCOTUS is widely considered to be the most powerful judicial branch in the world. Each member has a disproportionate influence when compared to members of the federal legislature, and they have at times played a key role in defending our rights and liberties.

Judicial neutrality

                Along with judicial independence, another key concept to consider is that of judicial neutrality. In simple terms, this might be described as the situation in which members of the judicial branch put aside their own personal and political beliefs when performing their job. Judicial neutrality thereby ensures that the judicial branch of government does not abuse its power. Members are therefore limited to mere interpretation of the Constitution.

                In order to ensure judicial neutrality is maintained, a judge cannot campaign on behalf of a political cause. Although they may be labeled conservative or liberal in regards to judgments reached; they are largely absent from the public domain. Secondly, they must always offer a legal (rather than political) explanation for their decision. Reports are routinely published explaining how they arrive at a particular decision (both on a majority and minority stance). No member of the Supreme Court can simply reach a judgment on an arbitrary and opinionated stance. However, the main element of judicial neutrality is to ensure personal opinions do not get in the way of performing their job effectively. In other words, conservative members of the Supreme Court could not overturn Roe v. Wade (1973) unless it was justified on the basis of existing law or constitutional interpretation. The personal opinions of the judge must be secondary to interpretation of the law as it stands.

                As one might expect, there are those who claim that members of the Supreme Court fall a little short of this particular goal. For instance, it must be noted that members are routinely categorized in terms of their ideological persuasion. This would seem to imply that they are not entirely neutral in their rulings. Secondly, one might reasonably claim that no-one is entirely free from personal bias. Conservatives have on occasion claimed that members of the judiciary adopt a liberal mindset contrary to the common-sense values of ordinary Americans. Liberals also highlight the elitist background of some members of the Supreme Court, implying that this might make it difficult for them to show sufficient empathy with those marginalized within society. It should also be noted that Antonin Scalia and Clarence Thomas attended a strategy session at the Koch Brothers retreat before ruling on the Citizens United case. Not surprisingly, this could be seen in a very negative light.

Judicial independence

                Judicial independence is of crucial importance within any democratic society. The judicial branch of government needs to be autonomous of both the legislature and the executive in order to perform its proper role. In other words, members of the Supreme Court must be free from any form of political interference. According to the principle of judicial independence, the Supreme Court must be able to pass rulings based solely upon their interpretation of the Constitution (and existing law). They should never be coerced into accepting a Republican/Democrat stance. Secondly, it should be possible for members of the Supreme Court to pass rulings that contradict their supposed ideological bias. When the Head of State nominates a member to the SCOTUS, he works on the assumption that a judge can be classed as either conservative (in the case of a Republican President) or liberal (in the case of a Democrat). However, once appointed to the Supreme Court each member is free to chart their own ideological course regardless of what they might have been expected to do.

The Roberts Court currently holds a slender conservative majority. As such, one might expect most decisions taken by the Supreme Court since 2005 to assuage conservatives. Notable examples include DC v. Heller (2008) and Citizens United v. FEC (2010). Heller was an undoubted victory for those who interpret the second amendment as an individual’s right to own a gun, whereas the Citizens United verdict matched the interests of conservative groups because they tend to receive relatively more campaign finance from wealthy corporations. The Roberts Court also struck down a component of civil rights legislation which was originally designed to prevent southern states from discriminating against ethnic minorities. The Voting Rights Act (1965) was ruled to be “unconstitutional in light of current conditions” (notably Section 5 which applied to those localities that practiced discriminatory methods). As a result of the ruling, it is Congress that can now rewrite the law. Not surprisingly, Obama expressed disappointment with the ruling. However, liberals have also been pleased with some of the judgments reached by the Roberts Court despite the fact that most of its members were appointed by Republicans. For instance, the SCOTUS ruled that the mandatory clause of the Affordable Care Act was constitutional. This provided a major fillip to Obama’s re-election campaign in 2012. More recently, the case of US v. Windsor (2013) marks a triumph for those in favor of gay marriage. Quite frankly, the Supreme Court can often act in an unexpected manner free from political pressure and reach a decision based purely upon their legalistic interpretation.

                In terms of acting in a manner distinct to their assumed ideological perspective, the clearest illustration on the bench at the present time is Anthony Kennedy. Nominated by a Republican, Kennedy is conventionally defined as a moderate. Another example one might consider is the Chief Justice himself. Although he is unmistakably conservative on many issues, John Roberts sided with the liberal bloc over the 2012 ruling on Obamacare despite being nominated by a Republican (George W. Bush) and confirmed by a Republican-controlled upper chamber. In siding with Obama in election year; the ever-quotable Sarah Palin described him as a “traitor.”

The importance of the nomination process

                No study of American politics would be complete without some recognition as to why the nomination process holds such importance. The first point to consider is that they are relatively infrequent. There can be a lengthy period in which no vacancy arises at all, as was the case between 1994 and 2005. Secondly, an appointment is for life. A successful nominee holds life tenure, whereas a member of the Cabinet (also nominated by the President) is likely to serve two to three years on average. This trend towards members of the Supreme Court holding greater longevity has been exacerbated by recent appointments being relatively younger than previous generations.

                The third point to consider is that there are just nine members on the hallowed bench. As such, a nominee represents one-ninth of the Court’s total membership. Moreover, he/she only needs to have a minimum of four others on their side to be part of a majority verdict. This contrasts sharply with members of the House, the Senate or indeed the Cabinet. In addition, the nomination process is important because of the Supreme Court’s power of judicial review. The President could well be nominating a person who might limit his power! Indeed, in the case of Clinton v. Jones (1997) the then President was ruled to have acted improperly in his relations with another woman. Those who ruled against him included members whom he had recently appointed to the Supreme Court (Breyer and Ginsburg). It should also be noted that judicial review can have a significant impact upon broader society, such as the hidden meaning regarding the right to privacy that forms the basis of abortion on demand.

The nomination process

                According to the Constitution, the President has the power to nominate someone for the Supreme Court in the event of a vacancy. This may be the result of resignation, impeachment or death. Given the fact that members of the Supreme Court enjoy life tenure; a vacancy usually arises on the basis of resignation. For instance, the two nominees put forward by President Obama were both as a result of existing members resigning from their post. To date, no member of the Supreme Court has ever been impeached.

                The nomination process is of a highly politicized character which involves a wide range of important actors. It begins with the President himself who will commission a search for suitable candidates for the post. Politics being what it is; this process may well have been underway for some time beforehand. The President will gain advice from a range of sources including his closest confidants and congressional members from his own party. He will also sound out members of the Senate Judiciary Committee in order to anticipate any potential problems. Failure to get his nominee through can be very embarrassing for the President. Finally, the President may well seek the advice of the American Bar Association (ABA). A Republican President may also gauge the opinion of the Federalist Society due to a belief within conservative circles that the ABA has a liberal bias.

                A nominee to the Supreme Court will gain their post based upon a combination of legal expertise and their ideological leanings. In terms of the former, eight of the current members have legal experience from the federal courts. The one exception (Elena Kagan) had served as Solicitor General at the Department of Justice. In political terms, a Democrat President will seek to appoint a liberal judge whereas a Republican will seek to appoint a conservative. It should be noted here that once the appointment is made, the judge in question may well chart a very different ideological course. To take one example, it was commonly assumed that David Souter would be a solid conservative but over time he adopted a fairly moderate position.

                After a shortlist has been reached, the FBI performs a number of background checks upon the possible nominations. If the nominee passes the vetting process, they will be formally interviewed by the President. If they impress during the interview, the nominee is then confirmed to the media via a formal announcement. The ABA then rates the nominee on the basis of ‘well qualified,’ ‘qualified’ or ‘not qualified.’ The only recent example of a nominee failing to gain the highest possible rating was Clarence Thomas.

                The process becomes highly politicized when proceedings shift towards Capitol Hill. The nominee must appear before the congressional committee and face questions from members of the Senate Judiciary Committee. Questions can be of a technical legal nature and of a more personal character. The aforementioned Clarence Thomas offers a particularly revealing case study to consider here. Members of the Senate Judiciary Committee asked him highly personal questions about his relationship with an intern called Anita Hill. During the media circus that ensued, conservatives claimed that liberal members of the committee were seeking to score political points against President Bush. Thomas himself famously described the process as a form of “high-tech lynching.” As one might expect, this particular example occurred during a time of divided government. The process is usually more straight-forward during a time of unified government. However, the President cannot simply assume that his nominee will pass this stage even when his party is in control of the upper chamber. In 2005, Harriet Miers was withdrawn as a candidate for the hallowed bench due to criticism from Republican members of the congressional committee. It was widely thought that Miers was not conservative enough on key issues.

                Once the nominee has faced questions from members of the Senate Judiciary Committee, its members take a vote on further action. This is merely a recommendation to the whole chamber. That said; the recommendation is often seen as a precursor to the judgment of the Senate as a whole. If the Senate Judiciary Committee votes overwhelmingly in favor, then the nominee is almost certain to be confirmed. This was the case with Ruth Ginsburg (1993) and to a lesser extent John Roberts (2005). Under the Obama administration, both Kagan and Sotomayor passed with comfortable majorities. A simple majority is required for confirmation by the upper chamber.

                The nomination process lasts on average around sixty days and consumes a considerable degree of media interest. The process is always more contestable during a time of divided government, and the nominee in question is more likely to face defeat during the lame-duck stage of the presidential cycle (as in the case of the aforementioned Robert Bork). The whole process can lead to a detailed examination of previous comments and actions by the nominee in question. In the case of Sotomayor, her remark about a wise Latina woman reaching a better conclusion than a white male who hasn’t lived that life certainly generated attention and controversy. Similarly, the words of congressional committee members can be politically charged or simply partisan. For instance, Democrats were far more praiseworthy of Elena Kagan’s nomination than Republicans.

The overall significance of the nomination process is self-evident, particularly when the Head of State can shift the political gravity of the Court towards either the left or right. Alas, in many cases he simply makes a like-for-like replacement. Either way, the President tends to put forward someone who will outlive his own presidency. This is why the term echo chamber is sometimes used, in that members of the Supreme Court may reflect the views of the President who nominated them long after they’ve left the Oval Office. However, the nominee may well take an unexpected course. There is no better historical example than the candidates put forward by President Eisenhower. When asked if he had made any mistakes as Head of State, he replied “yes, two, and they are both sitting on the Supreme Court.” The two in question were Earl Warren and William Brennan; both of whom were far more activist and liberal than Eisenhower anticipated. In more recent times, it should be noted that Sonia Sotomayor has distanced herself from Obama’s remark that members of the Court should be influenced by “empathy” when deciding a case. Sotomayor reminds us that members of the Supreme Court are not there to do the President’s bidding. Instead, they are judges serving on a revered institution underpinned by judicial independence.

How political is the Supreme Court?

The Supreme Court of the US is an independent body whose primary function is to interpret the Constitution. In performing this role, the Supreme Court acts in a non-political manner. In other words, it does not reach judgments on the basis of the political leanings of its members. Most informed commentators would accept that these observations hold some veracity. The SCOTUS undoubtedly holds a degree of independence from the other two branches of government. It could never be described as a political body in the manner of a judiciary within a dictatorial/autocratic regime. Individual members undoubtedly hold a degree of autonomy from the other branches of government. Although they may be described as adopting a liberal/conservative philosophy, they could in no sense be described as a Republican or a Democrat. Once they gain a seat on the Supreme Court, they are not beholden to any political party. Moreover, the Court is fundamentally a judicial rather than political institution. Its role is essentially that of an appellate court. In the huge majority of cases, it follows stare decisis (translated as ‘let the decision stand’) and in all cases restricts its role to that of constitutional interpretation.

Having said all this, the Supreme Court is political to some extent. There are four points one could offer to support this argument. To begin with, we might consider the power of judicial review. This enables the judiciary to declare actions taken by politicians to be unconstitutional. Acting as a check upon the power(s) of the other two branches of government is by implication a political act - both in character and content. To some, this represents an excessive level of power held by the judicial branch. Indeed, there are many who would argue that elected representatives should be given the leverage to make controversial decisions when circumstances arise because they have sufficient legitimacy from the people to do so. In contrast, none of the nine Supreme Court members holds any democratic legitimacy from the people. Unlike politicians, they do not have to account for their actions/decisions to the public.

The second point relates to the politicized character of the nomination process. This is very notable during a period of divided government when members of the Senate anticipate partisan benefits to be gained in rejecting a presidential nominee. It is no coincidence that nominees to the Supreme Court find it much more difficult to gain the consent of the upper chamber when the party in control of the Senate differs to that of the President. Take the case of Robert Bork, the last nominee to be rejected by the upper chamber. Bork’s impressive legal experience was entirely secondary to his right-wing views on race relations and the role of women. The politicized character of the nomination process can be evidenced further via the activities of pressure groups. Bork himself was subject to attack from liberal groups such as the NARAL and the NOW, whereas in more recent times over $2 million was spent by advocacy groups over the nomination of Samuel Alito. Moreover, it must surely be recognized that the nomination process can be overtly political even during a time of unified government. For instance, Harriet Miers was withdrawn from the nomination process because she was considered insufficiently right-wing by Republicans. Her lack of conservative credentials had been highlighted consistently by a number of pro-choice pressure groups. Whereas committee meetings are characterized by the language of judicial restraint, original intent and strict constructionist; the actual meaning of the questions and the process is without question political.

Thirdly, it must be acknowledged that the Supreme Court will make judgments that touch upon major political controversies over issues such as free speech, gun control, same-sex marriage and affirmative action. Decisions taken by the Supreme Court will inevitably affect these political issues in some manner. There are certain landmark cases that we are taught in school from a relatively early age. These decisions have massive political implications, and not just the obvious ones of Brown (1954) and Wade (1973). Take the case of Windsor v. US (2013) when the Supreme Court ruled the DOMA was unconstitutional. In reaching that decision members of the Supreme Court acted in a manner one might consider to be political. Even a judge who believes very firmly in judicial restraint is by implication playing a political role. Having said this, the controversy becomes all the greater when the Supreme Court is activist by inclination. Moreover, some judgments will have major political significance. There is surely no better example than Bush v. Gore (2000). During this cumbersome saga the first ruling mandated a state-wide manual recount. George Bush’s campaign team appealed to the US Supreme Court and, by a vote of 7-2; they decided that Florida’s recount procedure had violated the equal protection clause of the Constitution. However, by a 5-4 vote they ruled that there was no fair way to recount the votes in time for Florida to participate in the Electoral College. In effect, this decision handed the presidency to George W. Bush (Moore, 2004).

Finally, it must be noted that once a ruling has been reached the voting record of its members are published and reasons are given for their judgment. The inevitable response from politicians and political commentators is to discuss such findings and thereby generate further debate. The wording of Supreme Court decisions will invariably instigate further debate within the political process. For example, Senator John McCain described the Citizens United ruling in 2010 as “the worst decision ever.” Along with Russ Feingold (D), he had pushed forward campaign finance reform only for it to be undermined by a Supreme Court ruling that corporations held the same first amendment rights as individuals – a view he clearly did not share. The Democrat presidential candidate Bernie Sanders has even called for a constitutional amendment to overturn the ruling. Moreover, President Obama criticized the decision in a State of the Union address.

Checks upon the judiciary

                Both Congress and the President can impose certain checks upon the power of the Supreme Court. In the case of the former, the Senate has the power to confirm or reject appointments. Each member of the Supreme Court must be confirmed by the upper chamber - an issue that will arise when the executive branch nominates a replacement for Scalia. Secondly, Congress has the power of impeachment. Although this sanction has never been imposed, it remains a significant check nonetheless. Indeed, even the threat of impeachment places a boundary upon the power exercised by the judicial branch of government. Congress can also decide upon how many associate justices sit on the bench. Congress could therefore decrease the number of judges if they had reason to do so. Congress could also strip jurisdiction from the Court – although this is somewhat unlikely. Finally, Congress can initiate constitutional amendments that can have the effect of negating a decision by the Supreme Court. Having said this, recent attempts by the legislative branch to initiate constitutional amendments to overturn judicial rulings on issues such as school prayer and flag desecration have failed.

                The executive branch has two checks upon the judiciary. Firstly, the President has the ability to nominate justices to the Supreme Court. In doing so, he can influence the ideological outlook of the judicial branch. However, the nominee might not necessarily be as liberal or conservative as originally assumed. Moreover, the nomination might simply be on the basis of a like-for-like replacement. The second check imposed upon the judiciary concerns the reaction of the President to a particular decision. In some cases, the President will openly criticize the decision. For example, George Bush senior memorably described a ruling that seemed to protect flag burning under the first amendment as “wrong, dead wrong.” Equally, the President can give his political support for a particular decision. The President may also indicate his own views before the judgment is made. For instance, Obama indicated very clearly that the Supreme Court should not overturn the Affordable Care Act. 

How powerful is the Supreme Court?

                As mentioned in a previous post, the Supreme Court of the United States is one of the most powerful of its kind in the world. However, it is also the weakest of the three branches of government within the states. The answer to the question ‘how powerful is the Supreme Court?’ therefore rests to a significant extent upon which comparison we make. Let us consider both in turn.

                In terms of its relative power to other judicial branches, the Supreme Court of the United States is indeed significant. For instance, it was the first court in the world to discover the power of judicial review. This in itself underlines the power of the judicial branch in the states. Secondly, the Supreme Court has made a number of judgments that have transformed American society in a manner that other judicial branches of government simply could not compare with. 

                In terms of its relative power to the legislature and the executive, the United States is hardly different to any other country. One would expect the judicial branch to be the weakest because it has no legitimacy from the people – unlike the other two branches. It would be unusual for any country to have an elected and therefore accountable judiciary. That said; the judicial branch is not without power entirely. There are essentially two sources of power available for the judicial branch; that of judicial review and constitutional interpretation.

                As considered in the previous section, judicial review enables the SCOTUS to rule any action taken by elected politicians as unconstitutional. For instance, the Defense of Marriage Act (DOMA) was ruled unconstitutional in the case of US v. Windsor (2013). Historically, there are several dramatic case studies to consider which truly underline the raw power of judicial review. Take the case of the Watergate scandal, when President Nixon was forced to hand over White House tapes. The Supreme Court had ruled that he was acting in breach of the Constitution by claiming executive privilege. President Clinton was also curtailed by the judicial branch over the use of line-item vetoes. More recently, the Bush administration was ruled to be in violation of the Constitution based on its treatment of terrorist suspects.

                It should be self-evident that judicial review is the most important power held by any judicial branch of government. It enables members of the highest court in the land to pass judgments that undermine the power of politicians, and underscores the extent to which the judiciary in truly independent of Congress and the White House. However, having the ultimate responsibility to interpret the Constitution also confers power upon the Supreme Court. There are many fascinating case studies to consider on issues such as racial de-segregation, abortion, affirmative action and gay marriage. In the famous case of Brown v. Board of Education, James F. Byrnes quipped that “the Court did not interpret the Constitution – the Court amended it.” This was because the Brown judgment effectively reversed an earlier ruling that considered segregation to be constitutional. Constitutional interpretation can also be based upon hidden meanings (or penumbras), which can be highly significant in terms of the power exerted by the judicial branch.

                When seeking to assess the overall power of the Supreme Court, there are counter-points one must consider. For one, the Supreme Court has no power of enforcement of its decisions. Secondly, the remit of the Supreme Court is on balance a limited one. Over 95% of all cases brought to its attention go unheard because they hold little or no constitutional significance. Crucially, it is judges who decide which cases are to be heard. For instance, in 2010 the Supreme Court refused to hear the case of Kiyemba v. Obama despite its link to habeas corpus. Thirdly, the Supreme Court can only make a certain number of judgments in any given year. Moreover, Congress can always pass a law that might be able to circumvent the initial ruling. Furthermore, any interpretation of the Constitution can be overturned by a constitutional amendment. Finally, the Court must wait for others to bring a case to their attention. To take a recent illustration, NFIB v. Sebelius (2012) was brought to the Court’s attention by Republican governors who questioned the constitutionality of the mandated clause - albeit for partisan reasons.

                In terms of the ideological debate within the states, it should be noted that both liberals and conservatives will have cause to criticize the decisions taken by the Supreme Court. Equally, it should be noted that both liberals and conservatives may at times criticize the same judgment. This might imply that the power of the Supreme Court is of some weight. For example, a law to prevent indecent images of children was ruled unconstitutional in the case of Reno v. ACLU (1997). The SCOTUS struck down anti-indecency provisions within the Communications Decency Act because it violated the first amendment. The Supreme Court objected to the imprecision of phrases contained within the Act. In a similar case (Ashcroft v. Free Speech Coalition (2002)) the Court ruled that the 1998 Child Pornography Protection Act (which banned online child pornography and specified a mandatory prison sentence for those who sold, distributed or possessed images that “appear to be” or “convey the impression of” children engaged in sexually explicit conduct) was also ruled to be unconstitutional. The SCOTUS struck down the Child Pornography Protection Act because it abridged the freedom to engage in “a substantial amount of lawful speech.” As one might expect, both decisions were widely criticized by liberals and conservatives. That said, it could also be claimed that these judgments exemplify both judicial independence and the ability of the Supreme Court to act effectively. 

The rule of law

                In the United States, the rule of law is said to prevail. As you are doubtless aware, the rule of law is a key component of any genuine liberal democracy. It can be defined as the principle by which all people should be treated justly and equally in a court of law regardless of political beliefs, ethnicity, gender, sexuality or social background. In short, we should all be treated on an equitable basis and absolutely no-one should be above the law. Even the President can face the legal process. For instance, Richard Nixon was forced by the Supreme Court to hand over tapes regarding the Watergate investigation. He had originally sought to restrict public access to those tapes on the basis of executive privilege. The Supreme Court’s decision was the catalyst for Nixon’s eventual resignation. More recently, George W. Bush had to face court proceedings with regards to the Rasul case. As with Nixon, the ruling went against the President. It should also be noted that the Head of State can be impeached by the Supreme Court. This is not the case in other comparable democracies (such as the United Kingdom).

This being politics, there is of course a counter-argument to reflect upon. For example, some conservatives argue that members of the judiciary adopt a liberal mindset that is contrary to the concerns and outlook of ordinary Americans. This is significant because, according to conservatives; the Supreme Court should limit itself to a stance of judicial restraint. Those on the left however claim that disadvantaged groups within society fail to receive a fair hearing. On both sides of the political spectrum, there is an implication that the judicial system fails to uphold the rule of law.

The extent to which the rule of law exists has been subject to debate for many years. Take the case of Charles Beard’s thesis on the Constitution (which by implication relates to the actions of the judiciary in relation to the rule of law). Beard argued that our Constitution was motivated by the personal financial interests of the founding fathers. Rather than build a system based solely upon the rule of law, the framers of the Republic sought to protect their own personal property and economic standing. For instance, George Washington was the wealthiest landowner in the country and he managed to secure a constitutional guarantee that the newly formed nation would honor its lenders. George Washington had of course provided significant funds towards the American Revolution, and his role may well have more to do with personal interest than any wider concerns if one was to accept Beard’s revisionist thesis. The widely-respected political commentator Richard Hofstadter broadly agrees with Beard’s thesis on the Constitution.

In regards to the founding fathers, it should be noted that John Adams argued that the American system of governance should be “a government of laws and not of men.” His words seem very clear in both their intent and purpose. However, in practice the actions of politicians have at times failed to uphold the rule of law and the judiciary has often failed to exert sufficient power and authority to curtail those abuses. The most obvious illustration from recent times concerns the war against terror, during which a number of ancient civil liberties have been overturned. For example, under the Patriot Act the official authorities can intercept private E-mail communication. The Treasury Department also has the power to cancel financial transactions involving foreign agents and individuals, and the Department of Justice has the power to detain non-citizens without a formal charge being made. Other related examples include wiretapping, the controversy surrounding Abu Ghraib, the on-going saga of Guantanamo Bay and the use of waterboarding against terrorist suspects.

                Another issue to consider in this section concerns the actions of American foreign policy and its continued disregard for international law. The rule of law within the international community has regularly been ignored by administrations from both main parties when the national interest has been deemed to be at stake. For example, during the Bush administration the US seemed to flout international law over Iraq, climate change, the International Criminal Court and the World Trade Organisation. Despite gaining a Nobel Prize (!), Obama has done little to change our image amongst the international community. In truth, the United States of America is highly selective in how it applies and recognizes international law.

                When assessing the rule of law in the context of the United States, it has to be acknowledged that the judicial branch of government has to a considerable extent upheld the rule of law despite the activities of both the legislature and the executive. In relative terms at least, one would have to concur with Thomas Paine’s famous observation that “in America the law is King.” The Supreme Court has a great deal to do with that. Whilst far from perfect, it remains a significant bulwark against the power of the legislative and the executive branches of government. 

Judicial review

                Judicial review enables the judicial branch of government to rule that an Act of Congress or the actions of the executive branch are in violation of the Constitution. To use the Latin term, a politician is said to have acted ultra vires (beyond their powers). Judicial review can even be applied to the President himself. Back in the late-1990s, Bill Clinton was ruled to have exceeded his constitutionally-defined powers in relation to the line-item veto. Since that particular ruling, no President has been able to use the line-item veto. Judicial review also enables the courts to check for consistency between an administrative regulation and existing laws. Without the ability to exercise judicial review, the independence of the Supreme Court would be fatally compromised and the rule of law simply could not exist. In a truly democratic society, it is imperative that the judicial branch of government has the ability to check the power of the other two branches.

                The most significant power held by the Supreme Court is that of judicial review, and the SCOTUS was the first judicial bench in the world to enact a judicial review. In the case of Marbury v. Madison (1803), the Supreme Court ruled that federal courts have a duty to review the constitutionality of congressional acts. In doing so, they can declare said actions “null and void” if they in any way contravene the Constitution of the United States. It should perhaps be noted here that the Constitution does not specify such a power to the Supreme Court. As such, judicial review is an inferred power rather than an enumerated power.

                Judicial review both empowers the judicial branch of government and ensures that power exercised by the legislative and executive branch remains within the boundaries of the Constitution. In other words, judicial review bears relevance towards our understanding of judicial independence and has resonance towards the broader system of checks and balances within the American system of governance. Over 1,600 Acts of Congress have been ruled unconstitutional and thereby struck down on the basis of judicial review.

                Thus far, one might reasonably assume that the power of judicial review is a considerable one. However, this must be weighed against the ability of the legislative branch to pass a subsequent piece of legislation that manages to secure similar aims to the action that was initially struck down. It should also be recognized that the Supreme Court has absolutely no power of enforcement. Once again, one is reminded that the judicial branch of government is the weakest of the lot. As an unelected body, this is surely to be expected. Indeed, it is the norm throughout international relations for the judiciary to be weaker than either the legislature or the executive.

                Amongst the founding fathers, James Madison took the view that interpretation of the Constitution should be entrusted to an independent judiciary. Any other alternative would risk undermining the principles of the Constitution (such as limited government). Alexander Hamilton added that judicial review ensures that the will of the people would assuage the will of the legislature, and thereby ensure that the flame of liberty would remain alight within the new Republic. Yet despite these very worthy intentions, it is entirely reasonable to criticize the actual consequences of judicial review. For instance, it might be argued that judicial review enables judges to impose their opinions without any proper democratic oversight or accountability. Members of the judicial bench could even be offered bribes by those seeking to corrupt the whole process. That said; the Supreme Court has been relatively free from scandal or corruption by international standards. A member of the Supreme Court can also be impeached from their post if they misused judicial review, which thereby acts as a notable deterrent.

Secondly, it is worth noting that the practice of judicial review is itself unconstitutional. Judicial review was not specified at all in the original document. Whereas many of the founding fathers were keen to ensure an independent judiciary, it might plausibly be argued that they didn't wish for the courts to impose judicial review because that might lead to the abuse of power by members of the bench. The tenth amendment would seem to imply that the states should interpret the Constitution. If so, then the Supreme Court has itself exceeded its constitutionally-defined powers. This is one of the ironies of the American system of governance. 

Judicial restraint

Judicial restraint (or strict constructionist) can be defined as a condition in which members of the Supreme Court interpret the Constitution on a literal basis. Whereas judicial activism empowers members of the hallowed bench, judicial restraint seeks to limit their actions. Supporters claim that this is in keeping with the original intentions of the founding fathers and their fears concerning the potential abuse of power. In the words of the Supreme Court Chief Justice John Roberts “judges are like umpires. Umpires don’t make the rules: they apply them.”

Supporters of judicial restraint over judicial activism claim that those who wield power in whatever form must be answerable in some manner for their actions. The inherent flaw with judicial activism is that judges can pass judgments over which they have no direct accountability for. The public cannot remove a member of the judiciary in the same manner as an elected representative. As such, the actions of a judge should be limited to that of an umpire at a ball game rather than as one of the players.

From the opposing angle, judicial activism could be justified on the end result. In other words, the result of a judgment made on the basis of activism might be a more tolerant and socially just America. One would only have to consider Brown v. Board of Education (1954). This landmark ruling was taken at a time when many members of Congress were reluctant to support de-segregationist policies. By taking the Brown judgment on a unanimous basis, members of the Supreme Court did a tremendous service to the cause of a more progressive society. However, this whole argument depends in part upon your own ideological stance upon the desirability of a more tolerant society. In most examples, liberals would be more supportive than conservatives. Perhaps the clearest illustration within contemporary society is the vexed issue of gay marriage.

As one might anticipate, both activism and restraint have enjoyed periods of ascendancy. From the 1950s until the 1970s, judicial activism characterized both the Warren Court and the Burger Court (although Burger himself was a conservative figure). Capital punishment was even ruled unconstitutional during that time. In the case of Furman v. Georgia (1972) the Supreme Court ruled that the death penalty constituted “cruel and unusual punishment,” and was therefore in violation of the eighth amendment. Other liberal interpretations concerned abortion on demand and the issue of transporting children to different schools. Since the 1980s the Court had shifted towards a stance of judicial restraint.

If we employ a continuum with politics at one end and law at the other; judicial activism (regardless of its ideological character) takes judges more towards the political end whereas judicial restraint leans towards a purely legal end. The first option serves to empower judges whereas the other seeks to constrain the judiciary. Ultimately, this is the most important consequence of all between judicial activism and judicial restraint. Activism invariably politicizes the judicial branch of government, whereas restraint seeks to avoid that. Whether or not this is a good or bad thing depends entirely upon where you stand ...

Judicial activism

                The ideology or philosophical outlook taken by each of the nine members of the Supreme Court is of obvious interest to anyone seeking to properly comprehend American politics. There are two dimensions to consider here. The first is the distinction between a liberal and a conservative. According to recent studies, Clarence Thomas is the most consistently conservative judge on the bench closely followed by John Roberts and Antonin Scalia (who passed away in 2016). The most consistently liberal judges are Ruth Ginsburg and Sonia Sotomayor. The ideological leanings of the judge in question might lead to said judge reaching a verdict in keeping with their political outlook on topics such as affirmative action, the Affordable Care Act and abortion. However, one must be careful not to overstate the case. The verdict reached by a judge is constrained by certain limitations; not least the law and the Constitution as it currently stands. For example, conservative judges cannot overturn the Roe judgment simply because they are opposed to abortion.

                The second element to consider is the distinction between judicial activism and judicial restraint. Judicial activism can be defined as a situation in which members of the Supreme Court seek to apply the broad principles of the Constitution towards the modern era. Activism is based on a premise that judges must recognize the circumstances of modern-day society when reaching their verdict. The Constitution was written at a time when women didn't have the vote, slavery was legal and a black man counted as three-fifths of a white man. It is therefore right and proper that the judicial bench acknowledges that society has changed over time (Alexander, 2010). One should note that the term loose constructionist is sometimes used instead of judicial activism.

                As with most aspects of political study, there are certain drawbacks to this approach. Firstly, there is always the danger that judges will impose their own opinions rather than interpret existing legislation/the Constitution in a literal sense. This may well conflate the role of the judiciary and thereby distort the original intentions of the founding fathers. Opponents claim that judicial activism is in reality a one-way path towards judicial overreach. Borne of good intentions, judicial activism gives the judiciary too much power. Unelected and unaccountable figures become politicians (or even dictators) in wigs prone to legislating from the bench.

Before I end this post it is important to recognize that judicial activism can be both liberal and conservative. Perhaps the best example of liberal activism occurred during the Warren Court (1953 to 1969). A number of judgments were made on the basis of de-segregation, abortion, Miranda rights and the death penalty; all of which contributed towards the creation of a more progressive and tolerant society. An example of conservative activism would be if the Court decided to overturn Roe v. Wade (1973). It should also be noted that liberal activism is more common than conservative activism. This is because liberals are more inclined to view the Court as a means to ensure social justice, whereas conservatives are more inclined to view the Court as a bulwark against judicial overreach. The philosophical distinction between positive rights and negative rights casts some valuable insight here. Liberals tend to be supportive of positive rights whereas conservatives are more sympathetic towards negative rights. It should be clear that a judgment that promotes positive rights is more likely to be based upon an activist outlook.

Role of the judiciary

                The final branch of government we need to consider is the judiciary, which would seem somewhat appropriate since the judicial branch is by far the weakest of the three. However, by international standards the Supreme Court of the United States (SCOTUS) is probably the most powerful judiciary in the world. It has a range of powers at its disposal such as constitutional interpretation and judicial review. It can even decide to impeach the Head of State for grave crimes and misdemeanors. Given the extent to which judicial independence exists, the judicial branch of government is of significant interest to anyone seeking to comprehend American politics.

                Given the litigious character of the states, and the importance awarded to the codified constitution; the judicial branch of government undoubtedly plays a key role within the political process. A number of landmark decisions in recent years have affected the political process in some manner. Since the turn of the century, notable examples to consider include Bush v. Gore (2000), DC v. Heller (2008), Citizens United v. FEC (2010), NFIB v. Sebelius (2012) and US v. Windsor (2013). One might also consider a number of cases concerning the war against terror, particularly under the Bush administration. It is therefore important to recognize that the role of the judiciary goes beyond mere academic interest within the field of law. Judgments reached by the Supreme Court (and the federal courts) will at times hold major political implications. Indeed, such cases belong as much to a politics course as they do in a law module. Given the political importance of the judicial branch, one must recognize the overall significance of the judiciary in regards to mastering politics within the states. It is also worth noting that the judicial branch is usually introduced after some grounding in the Constitution, the legislature and the presidency. Given the importance of the judicial branch, it seems appropriate to begin with the issue of judicial activism ...

Quotes on the presidency

“All modern political prose descends from the Gettysburg address.” Garry Wills

“America can inspire the dreams and desires of others thanks to its dominance of global images.” Hubert Vedrine
“Americans are not very good at nation-building and not very good colonialists.” Francis Fukuyama
“Anybody like myself who has once made the decision that they want to give a State of the Union address … never ever permanently surrenders that.” Bob Kerrey
“Every President must endure a gap between what he would like and what is possible.” John F. Kennedy
“Every President needs a son-of-a-bitch and I’m Nixon’s.” Bob Haldeman
“I may be President of the United States, but my private life is nobody’s damned business.” Chester Arthur
“I sit here all day trying to persuade people to do the thing they ought to have sense enough to do without my persuading them. That’s all the powers of the President amount to.” Harry Truman
“If [military] intelligence were a television set, it would be an early black-and-white model with poor reception.” Madeline Albright
“Image makers are now selling the President.” Joe McGinniss
“Military leaders should not be complicit in accepting the President’s approach to war.” Major McMaster
“Never underestimate the power of proximity.” Daniel Moynihan
“Not deciding is also a decision.” Oliver Burkeman
“Presidential frustration is far more the rule than presidential triumph.” Thomas Cronin
“Speak softly and carry a big stick.” Theodore Roosevelt
“The most frightening words in the English language – I’m from the government and I am here to help.” Ronald Reagan
“The presidency can be characterized as high expectations yet limited power; many demands yet few resources.” Cronin and Genovese
“The presidency is … like an orchestra … made up of literally hundreds of people.” Anthony Bennett
“The presidency is not a powerful office.” James Pfiffner
“The presidency provides a wonderful bully pulpit.” Teddy Roosevelt
“The President must be a bargainer-in-chief.” David Mervin
“The single most important part of a successful team is a Chief of Staff strong enough to be an honest broker.” Samuel Popkin
“We do not have the God-given right to shape every nation in our own image or as we choose.” Robert McNamara
“We have not an imperial presidency but an imperiled presidency.” Gerald Ford
“When the President does it then it is not illegal.” Richard Nixon

Presidential legacy

                Historians will invariably concern themselves with the legacy left by a President once they have left office. Inevitably, this requires a degree of historical detachment in order to properly identify. Although it is difficult to offer much in the way of overarching comments, we can at least state that foreign policy will usually play a key role given the President’s wider scope for action in this field. Obvious examples include Ronald Reagan bringing the cold war to an end, Nixon’s diplomatic initiative in China, FDR’s ‘arsenal of democracy’ and so on. The President’s domestic legacy will however reflect the wishes of Congress and the compromises he must inevitably make with the legislative branch.

                There is a vast swathe of literature upon the legacy of successive Presidents, and it is not my intention to cover that ground here. I simply want to limit my focus to George W. Bush and Barack Obama. As the former has now left office, it is more straight-forward to identify his legacy. The defining moment of the Bush administration was undoubtedly 9/11. This disturbing episode in our nation’s history transformed Bush into a “wartime President.” His approval ratings shot up in the aftermath of the terrorist attacks on New York City and Washington DC. The legacy of the Bush administration is therefore bound up within the narrative of 9/11. In the field of foreign policy, this would include wars in both Iraq and Afghanistan. In the domestic realm, the Bush administration placed greater restrictions upon civil liberties in order to deal with the threat of terrorism. Defining events range from the Patriot Act to the color-coded warnings from the Department of Homeland Security. One might also consider high-profile court cases such as Rasul v. Bush.

                In ideological terms, George W. Bush sought to govern as a compassionate conservative. During his eight years in office the scope and scale of the federal government increased substantially in order to pursue certain goals (such as protecting the national interest and improving education). The expansion in the role of the government provoked the ire of fiscal conservatives who felt that Bush betrayed the Republican Party’s mission to reduce the size of the state. Social conservatives however view Bush in a more favorable light. Religion was at the very center of his worldview, and he was unquestionably ‘one of them.’ Bush managed to promote a socially conservative agenda whilst avoiding any association with extremist elements of the religious right. Finally, Bush managed to push the Supreme Court a little further to the right.

                As for Obama, his legacy in terms of foreign policy is contradictory. In one sense, he may well go down in history as a man of peace because he brought troops home from Iraq and provided an exit strategy to NATO involvement in Afghanistan. He also received the Nobel peace prize, although that had more to do with not being his predecessor than any genuine achievement on his part. However, President Obama will go down in history as the man who ordered the assassination of Osama bin Laden and the man who ordered drone strikes on hundreds of occasions (and all this from a former professor of constitutional law). Whatever your stance upon such actions, they are surely contrary to the wishes of the founding fathers. To this dismay of liberals within his party, Obama continued many of the draconian policies instigated by his Republican predecessor. His failure to close Guantanamo Bay is a particular bug-bear for liberals in the Democratic Party.

                In the domestic realm, he has been in his own words an “extreme pragmatist” who has trimmed his ideological sails in order to govern effectively and gain a second term. This is consistent with many other occupants of the Oval Office, and one that is perhaps to be expected given the dynamics of politics in the states. His legislative achievements in the domestic field however are certainly of note. Examples that readily spring to mind include the Affordable Care Act, the bail-out of the car industry, anti-discrimination laws, cash for clunkers, student loan reform, tighter regulation of Wall Street, the Credit Card Act of 2009 and an expansion in the CHIP. Although they hardly compare with the New Deal, these are reasonably positive achievements for a progressively-minded President governing at a time of ideological polarization in the face of a largely obstructionist Republican Party (particularly in the House). In terms of the judicial branch, Obama has appointed two figures to the Supreme Court; both of which could be broadly cast as liberal.

We do of course need more time to properly assess his historical legacy, but at the time of writing; it seems reasonable to claim that historians may well reflect upon the striking similarity between the foreign policy approach of George W. Bush and Barack Obama. Despite the obvious ideological differences between them, both men have adopted a broadly similar position on America’s place in the world and the need for military involvement. Both the neo-conservatism of the Bush administration, and the liberal interventionism of Barack Obama; have led towards military engagement in the world.

If we take a historical perspective, there are three figures from the 20^th century who truly stand-out (Franklin Delano Roosevelt, Lyndon Johnson and Ronald Reagan). Each one could be described as a figure that genuinely transformed the country. Whilst there is little ideological similarity between these three figures; their impact was truly significant. Franklin Delano Roosevelt was sworn in at a time when American capitalism was mired in deep crisis. Banks were closing all across the country, business confidence had collapsed and millions were losing their jobs. FDR campaigned on a pledge to restore optimism to a country that had lost its sense of direction during the Great Depression. During his legendary first one hundred days, FDR took decisive action to rescue the banking system and initiate government programs designed to get people back to work. In economic terminology, he implemented a bold strategy of Keynesianism in order to stimulate aggregate demand within the American economy. As the economy eventually recovered, FDR claimed credit for taking radical measures when the country needed decisive action.

                FDR was also successful in the context of the Second World War. He eventually managed to secure congressional approval for military action despite a deep-seated streak of isolationism within the legislative branch. He also managed to galvanize the country into military action at a time when memories of the First World War were fresh in people’s memory. Furthermore, the United States helped to secure victory for the Allies and thereby defend freedom from the forces of fascism in Europe and nationalism in Japan.

                FDR is not however without his critics. For instance, he was an imperial figure in that he broke the two-term convention and threatened to pack the Supreme Court with supports of the New Deal. According to fiscal conservatives, he also set the country on course for economic ruin due to the excessive cost of the New Deal. These are all reasonable comments to consider. Alas, they do little to diminish his reputation as a successful President. FDR took over a country adrift in the mire of the Great Depression, managed to take the country to the brink of victory in World War Two and implemented the most radical expansion of social liberalism the country had ever known.

                In common with FDR, Lyndon Johnson also became President when the country was facing deep-seated problems. LBJ took over a nation divided on the issue of civil rights. He managed to steer the country out of this turmoil and, in doing so; advanced the cause of civil rights in the face of implacable opposition within Congress. He utilized all his guile and physical persona in order to pass hugely controversial legislation, not least with members of his own party. The Civil Rights Act (1964), the twenty-fourth amendment (1964) and the Voting Rights Act (1965) fundamentally changed America at a time when questions of race were tearing the country apart. It is difficult to imagine any other President succeeding in this area given the depth of opposition to such measures. He even had the courage to take on southern Democrats in the full knowledge that it might do lasting damage to his own party.

                Once again, LBJ is not without his critics. Those on the left oppose the manner in which he escalated the war in Vietnam for cynical electoral reasons. Equally, those on the right criticize both the hubris and the cost of his ‘Great Society.’ For many fiscal conservatives, the war against poverty exemplifies the very worst elements of federal overreach and government waste. Nonetheless, LBJ did more to advance race relations in this country that arguably any other President since Abraham Lincoln. This is a truly significant achievement by any standards.

                The final figure to consider is Ronald Reagan. He came to power when the country was experiencing economic and political decline. There was a deep-seated sense of malaise with the American system of governance. Moreover, the Soviet Union seemed utterly determined to escalate the cold war after an all too brief period of détente. Reagan’s political skill was to restore confidence in America at a time when the country desperately needed it. His folksy, optimistic tone connected with ordinary people opposed to what they saw as the fatalistic and unpatriotic tone of the liberal elite. Reagan took a tough line against what he memorably termed the Evil Empire, and his decision to greatly increase military spending (including the controversial Star Wars scheme) exploited the Soviet’s weak spot. In doing so, he did more than any other President to bring the cold war to an end. Frankly, it took genuine courage to make such decisions.

                In an ideological sense, Ronald Reagan launched the conservative revolution against the forces of liberal-secularism. He gave voice to widespread concerns about a decline in the moral fiber of the nation after a decade characterized by Roe v. Wade, permissive attitudes towards sex and an increase in the number of children born out of wedlock. The conservative revolution (or counter-revolution if you prefer!) marked a turning-point in the country’s history. Along with FDR, Reagan could be depicted as the leader of an ideological movement that fundamentally changed American society. Reagan could also claim to have changed the opposing party, predicating the emergence of new Democrats who would eventually concede that the era of big government was over.