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  • Batter Up: What’s on Deck for the Supreme Court’s October 2012 Term

    While other events may compete for our attention this fall (baseball playoffs, football, national election campaigns), next Monday, October 1, marks the beginning of a new Supreme Court term.

    The Court’s last term also reminds us that the judiciary sometimes plays an outsized role in our republic. Thus, as Heritage’s Elizabeth Slattery explained last week, it is critical for voters this fall to consider what type of judges their preferred candidates would nominate and, more generally, the proper role of the courts in general.

    Chief Justice John Marshall’s decision in Marbury v. Madison recognized the judiciary’s duty to rule on the validity of laws that are properly presented to the courts, otherwise known as “judicial review.” This decision complements the Founders’ vision of America: a government founded on the principles of separation of powers and the rule of law, with the three branches of government acting as checks against the others. Understanding the universal tendency of man to abuse power was essential to the Founding. As James Madison stated in Federalist 51:

    In framing government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

    Nowhere was this check on power more evident than in the judicial branch. As Heritage’s Robert Alt writes:

    In explaining judicial power under the Constitution, [Alexander] Hamilton noted that the courts would have the authority to determine whether laws passed by the legislature were consistent with the fundamental and superior law of the Constitution.

    Here is clear evidence that the Founders intended judges to apply the original meaning of the Constitution. Regrettably, many judges today engage in judicial activism and decide cases based on their own policy preferences rather than by applying the law impartially and according to its original public meaning.

    Regardless of the what judicial philosophy the justices of the Supreme Court employ, there is no arguing that the Court decides issues that have a reverberating effect on the lives of millions of Americans. The last term included such significant and influential issues as the states’ involvement in immigration enforcement, the permissibility of warrantless use of GPS tracking devices by police, and, of course, challenges to the constitutionality of Obamacare and its Medicaid expansion.

    But not all Supreme Court terms are created equal. While it is unlikely that this next term will rival the publicity generated by last term, the upcoming term has some newsworthy cases, as a new Heritage Legal Memorandum by Paul Larkin and Elizabeth Slattery details.

    To hear more prognostications on the upcoming Term, please join us at Heritage Tuesday at noon or tune in online for our second annual Supreme Court preview, which is part of our Preserve the Constitution Series. Former Solicitor General Paul Clement and SCOTUSBlog’s Tom Goldstein will discuss what is likely to unfold in the Supreme Court’s next term.

    Dominic Papa is currently a member of the Young Leaders Program at The Heritage Foundation. For more information on interning at Heritage, please visit http://www.heritage.org/about/departments/ylp.cfm.

    Posted in Legal [slideshow_deploy]

    2 Responses to Batter Up: What’s on Deck for the Supreme Court’s October 2012 Term

    1. J.P. says:

      It seems as if the topic of Supreme Court nominations by the next president has been overlooked and almost discarded in all of the recent campaign rhetoric. If the events of this past summer have proven anything it is that the quality of judicial nominees does count especially on the Supreme Court. Stop for a moment and think, what can happen to the court if Barack Obama is given a second term? As critical as the economy is to the average american, the balance of justices on the high is even more so to the future of those average Americans.

      • Wayne Church says:

        Everyone better get ready for Associate Justice Eric Holder if Obama gets re-elected especially if Reid holds on to the Senate.

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