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.