The Supreme Court's Modern Policy Role The Su

The Constitution gave the role of arbiter to the Supreme Court. The framers settled on the idea that the best arbiter of what is and is not constitutional would be the judiciary, for this would be a natural role for that body. In order to exercise this role, the Court needed the power of judicial review, or the ability to hold a law or action unconstitutional and unenforceable. Judicial review was not a power enumerated in the Constitution. However, it was a traditional power of the judiciary and the Court spelled it out in Marbury v. Madison. After Marbury, the debate over the power of judicial review vanished from the political scene.

The importance of the rule of law and the role of the Court in determining what comes within the rule of law has meant that the Court has an

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conomic rights because of their special place in the political thought underlying Anglo-American society. In fact, Justice Harlan Stone stated in a famous footnote that any laws infringing upon the five guarantees of the First Amendment (religion, speech, press assembly, and petition) may deserve greater judicial scrutiny than other types of legislation. It is ironic, in light of developments during the 1960s and 1970s, that the application of substantive due process analysis to economic rights was strongly criticized as judicial legislation. Nowhere did the Constitution state that certain rights were so important that any legislation infringing upon them was unconstitutional. In fact, a strict reading of the due process clause would indicate that infringement of these rights only had to be accompanied by due process. This suggested that the clause demanded procedure, rather than no infringement at all. Once the substantive due process doctrine was rejected with regard to economic rights, however, it began to be applied to personal liberties. This meant that the new justices were not rejecting substantive due process analysis, but swapping the kinds of rights covered by the analysis. This was a major policy change on th
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Approximate Pages = 7 (250 words per page)