The Supreme Court: Law or Politics?

Abortion, busing, and affirmative action are three of the most controversial issues in American society, and they share some important features. First, the Constitution is silent about each of these issues. Second, major landmark decisions made by the US Supreme Court virtually define public policy in these issue areas. Which is noteworthy, in part, because the nine justices of the Supreme Court, who are unelected, have become policymakers—typically thought to be the domain of elected officials. Institutionally, judicial restraint means that the Supreme Court should interpret the law, rather than make the law. Law and politics are often thought of as comprising different ends of a hypothetical continuum. The law may be adding provisions that Congress specifically rejected. Expanding or contracting the law is an act of judicial activism. Advocates of judicial restraint would decline this opportunity, opting to try to discover and follow the intent of Congress in passing the law.