The Supreme Court and Public Policy

Public policy means the laws and judicial decisions that govern an area of national life. In the United States the Supreme Court is a policy-maker, and the reason is structural rather than accidental.

Three features of the US system push policy towards the Court:

• A codified, entrenched Constitution. Because the Constitution outranks statute and is hard to amend, the practical way to change what it means is to change how it is read.
• Judicial review. Since Marbury v Madison (1803) the Court can void federal law, and since Fletcher v Peck (1810) it can void state law. A single ruling therefore binds every government in the country.
• Congressional gridlock. Separation of powers, the Senate filibuster and frequent divided government make legislation slow. Litigation is often the faster route to a national policy change.

But the Court is a reactive institution, and this limits it in ways students often miss:

Constraint	Effect on policy-making
It cannot initiate a case	Interest groups must find a suitable claimant and bring the litigation
Four Justices must grant certiorari	Only about one per cent of petitions are argued; see the lesson on the Court's role for the certiorari process
It rules on the question presented	A ruling can leave the surrounding policy untouched
It has no enforcement machinery	Implementation depends on the executive and the states

The Court does not choose the issues of the day. It chooses which of the disputes brought to it will become the issue of the day.

Section 4.3 requires examples including post-2005 ones. This table is your core evidence base; use two or three in depth rather than listing all of them.

Ruling	Year	Policy area	What changed
DC v Heller	2008	Firearms	Struck down a handgun ban, establishing an individual Second Amendment right to keep a handgun at home
Citizens United v FEC	2010	Campaign finance	Removed limits on independent political spending by corporations and unions
NFIB v Sebelius	2012	Healthcare	Upheld the Affordable Care Act's individual mandate as an exercise of Congress's taxing power
Shelby County v Holder	2013	Voting rights	Disabled the requirement that certain states clear voting changes with federal authorities in advance
Obergefell v Hodges	2015	Marriage	Legalised same-sex marriage in every state
Bostock v Clayton County	2020	Employment	Held that the Civil Rights Act 1964 bars discrimination on grounds of sexual orientation and gender identity
Dobbs v Jackson	2022	Abortion	Overturned Roe v Wade, returning abortion regulation to the states
NY State Rifle and Pistol Association v Bruen	2022	Firearms	Struck down New York's restrictive concealed-carry licensing regime
Students for Fair Admissions v Harvard and UNC	2023	Education	Ended race-conscious university admissions
Biden v Nebraska	2023	Student debt	Blocked the federal student loan forgiveness scheme
Trump v United States	2024	Presidential power	Held a president immune from criminal prosecution for most acts in an official capacity

Worked case study — Dobbs v Jackson Women's Health Organization (2022). Mississippi banned most abortions after 15 weeks, in open conflict with Roe v Wade (1973). The Court upheld the Mississippi law and went further, overruling Roe and Planned Parenthood v Casey (1992) outright. The majority reasoned that abortion is not mentioned in the Constitution and is not deeply rooted in the nation's history, so the question belongs to elected legislatures. Chief Justice Roberts agreed the law should stand but would have stopped short of overruling Roe.

The policy consequence was immediate and national. A constitutional right recognised for 49 years disappeared, and abortion law fragmented into fifty separate state regimes. Dobbs is the single best illustration of the Court's power: no bill passed Congress, no amendment was ratified, and American policy changed overnight.

Citizens United v Federal Election Commission (2010) shows the Court reshaping the political process itself, which makes it the strongest example for a question about the Court's political significance.

The dispute. Citizens United, a conservative non-profit, produced a film critical of Hillary Clinton and wanted to broadcast it close to the 2008 primaries. Federal law restricted such "electioneering communications" funded from corporate treasuries.

The ruling. By 5 votes to 4 the Court held that political spending is protected speech under the First Amendment, and that the government may not ban independent political expenditure by corporations, unions or associations. Limits on direct donations to candidates survived; limits on independent spending did not.

The consequence. Combined with a federal appeals court ruling later in 2010, the decision produced the Super PAC: an organisation that can raise and spend unlimited sums supporting or opposing candidates, provided it does not donate to them or coordinate with them. Pearson's own terminology guidance treats Super PACs as a product of Citizens United.

Vehicle	Contribution limits	Can it coordinate with a candidate?
Candidate campaign committee	Yes, capped per donor	It is the candidate
Traditional PAC	Yes, capped in and out	Donates directly, within limits
Super PAC	No cap on what it raises or spends	No

The evaluation. Supporters argue this is straightforward free speech: the state should not decide how much political argument a group may fund. Critics argue it converted wealth into political voice and left elections open to the influence of large corporate donors. The debate remains live: the Court returned to campaign finance in its 2025–26 term, again dividing on ideological lines.

Citizens United is the answer to "does the Court act politically?" that works in either direction. It was a legal ruling on the First Amendment, and it changed who funds American politics.

Issue 4 names this divide explicitly in both 4.3 and 4.6. It is a disagreement about where meaning comes from, and it decides cases.

	Originalism	Living Constitution
Core claim	The text means what it meant when adopted	The text evolves as society does
Role of the judge	Find the fixed original meaning and apply it	Interpret principles in the light of modern conditions
Route to change	Amendment by Congress and the states	Reinterpretation by the Court
Linked to	Strict constructionism; stare decisis in principle	Loose constructionism
Associated Justices	Thomas, Alito, Gorsuch, Barrett	Sotomayor, Kagan, Jackson

Worked contrast. The Constitution says nothing about marriage. In Obergefell v Hodges (2015) the majority read the Fourteenth Amendment's guarantees of due process and equal protection as reaching same-sex marriage, because the meaning of liberty had developed — Living Constitution reasoning in its clearest form. In Bruen (2022) the Court took the opposite route on firearms, holding that a gun regulation survives only if it fits the historical tradition of firearm regulation in the United States. One Court, two methods, two directions.

Criticisms of originalism. Original meaning is often genuinely unclear, and 1787 offers no guidance on the internet, aviation or modern policing. Critics also argue it produces conservative outcomes while presenting them as neutral history, and that the founders themselves disagreed about what they had written.

Criticisms of the Living Constitution. If unelected judges can update the text, the amendment procedure in Article V is bypassed and judges substitute their values for the people's. Rights created by reinterpretation can be removed the same way — which is precisely what Dobbs did to Roe in 2022.

These are dispositions, not ideologies. Judicial activism describes Justices who decline to defer to the elected branches or to earlier rulings. Judicial restraint describes Justices who defer to both.

	Activism	Restraint
Attitude to elected branches	Willing to strike down their decisions	Presumes their acts constitutional
Attitude to precedent	Willing to overturn it	Follows stare decisis
Typical justification	The Constitution protects minorities from majorities	Policy belongs to elected, accountable institutions
Example	Obergefell (2015); Dobbs (2022); Shelby County (2013)	Roberts in NFIB v Sebelius (2012), straining to read the mandate as a tax to avoid striking down an Act of Congress

Criticisms of activism. It puts policy in the hands of nine unelected officials with life tenure, which critics describe as an imperial judiciary. It destabilises the law if precedent can be reversed when the Court's membership changes. And it draws the Court into fights that damage its own standing.

Criticisms of restraint. Deference can leave rights unprotected. Had the Court deferred to elected state legislatures in 1954, segregated schooling would have survived Brown v Board of Education. Restraint also assumes elected majorities can be trusted with minority rights, which is the assumption the Bill of Rights exists to doubt.

Note the trap in the labels. Dobbs overturned a 49-year-old precedent and rewrote the constitutional basis of abortion law in every state without a vote in Congress: by the specification's own definition, declining to defer to previous rulings is activism, even though Dobbs is described as a conservative ruling.

Pearson's April 2026 case study set this question directly: is the US Supreme Court an independent judicial body? Build the answer from evidence on both sides.

Evidence that the Court is political:

• Appointment is a party contest. No Justice confirmed since 2017 has attracted more than 54 votes, against 78 for Roberts in 2005. Merrick Garland got no hearing in 2016; Amy Coney Barrett was confirmed eight days before the 2020 election.
• Rulings track judicial philosophy. Heller (2008) placed individual gun rights above local regulation; Obergefell (2015) read liberty broadly. The division reflects philosophy, and philosophy is what presidents select for.
• It decides intensely political questions. Bush v Gore (2000) ended the Florida recount and settled a presidential election. Trump v United States (2024) granted a president immunity from prosecution for most official acts.
• It is lobbied. Interest groups and affected institutions file amicus curiae briefs to press the wider consequences of a ruling, as Harvard University did in Fisher v University of Texas (2016).

Evidence that the Court is judicial:

• Appointees rule against their patrons. The tariffs ruling of February 2026 and the Illinois National Guard ruling of December 2025 both went against President Trump on majorities that combined the three liberals with Roberts and two of his own appointees. Both are set out in full in the lesson on the Court's role and judicial review.
• Reasoning is public and constrained. Every ruling is a written argument from constitutional text and precedent, open to criticism. Roberts upheld the Affordable Care Act in NFIB v Sebelius (2012) on taxing-power grounds that disappointed conservatives.
• The Court polices its own boundaries. In the February 2026 tariffs case it declined to rule on whether businesses and consumers were entitled to refunds, treating that as outside its competence.
• It defends its own independence in public. After President Trump attacked an "Obama judge" in 2018, Chief Justice Roberts responded that the United States does not have Obama judges or Trump judges, Bush judges or Clinton judges.

A defensible judgement: appointment is unmistakably political, but behaviour on the bench is judicial. The evidence is that a president who chose a third of the majority still lost — twice within three months, in December 2025 and February 2026.

Section 4.6 asks about the extent of the Court's powers and the effectiveness of checks and balances. The honest answer is that the checks exist but are slow, blunt or rarely used.

Check	How strong is it?	Evidence
Constitutional amendment	Very weak in practice	Two-thirds of both houses plus three-quarters of states; the last reversal of a ruling this way was the 26th Amendment in 1971
Changing the Court's size	Available but politically costly	Franklin Roosevelt's 1937 plan failed in the Senate; a presidential commission examined reform in 2021 and did not recommend expansion
Appointments	Real but slow and arbitrary	The 6-3 balance has been unchanged since October 2020
Impeachment	Effectively unused	Samuel Chase was acquitted in 1805, and no Justice has been removed
Enforcement and compliance	The genuine constraint	After Brown (1954) desegregation proceeded so slowly that federal troops were sent to Little Rock in 1957 and the Court had to restate its authority in Cooper v Aaron (1958)
Legislative response	Works only where a ruling rests on statute	Congress can rewrite a statute the Court has interpreted, but not a constitutional holding

The record on equality measures shows the same mixed picture. The Court permitted race-conscious university admissions in Grutter v Bollinger (2003) and Fisher (2016), then prohibited them in Students for Fair Admissions (2023). Immigration reform, the other measure the specification pairs with affirmative action in 4.6, shows the pattern in a sharper form, and it is worth taking on its own.

Specification 4.6 asks about the successes and failures of measures to promote equality, including affirmative action and immigration reform. Immigration is the clearer failure of the two, and it demonstrates how a policy vacuum in Congress ends up on the Court's docket.

The one success. The Immigration Reform and Control Act 1986, signed by Reagan, remains the last comprehensive immigration statute. It granted legal status to roughly 2.7 million people already in the country and, for the first time, made it unlawful for employers to knowingly hire unauthorised workers. It is the benchmark against which every later attempt is measured.

Forty years of failure since. Comprehensive reform backed by President George W. Bush collapsed in 2006 and again in 2007. In June 2013 the Senate passed a comprehensive bill, S.744, by 68 votes to 32 — and the House of Representatives never brought it to a vote, so it died with the Congress. A bipartisan border and asylum package negotiated in the Senate collapsed in 2024. Each failure left the statutory framework untouched.

Executive action fills the gap. Unable to legislate, presidents acted alone. DACA, created by executive action in 2012, gave deferred deportation and work authorisation to people brought to the United States as children; several hundred thousand hold that status. DAPA, an attempted 2014 extension to the parents of citizens and lawful residents, never took effect.

And the courts decide what survives. Because the policy rests on executive action rather than statute, its fate is litigated:

Case	Year	What it settled
Arizona v United States	2012	Struck down three of four provisions of Arizona's SB 1070 as pre-empted by federal law, confirming that immigration enforcement is federal — while upholding the provision allowing officers to check immigration status during a lawful stop
United States v Texas	2016	A 4-4 split after Justice Scalia's death left the injunction against DAPA standing. The programme died without the Court setting any precedent
DHS v Regents of the University of California	2020	Blocked the rescission of DACA as "arbitrary and capricious" under the Administrative Procedure Act — a ruling on process, not on whether DACA was lawful

The pattern is the point, and it is a strong AO2 observation: Congress does not legislate, the president acts unilaterally, the courts decide whether the unilateral act stands, and the underlying question is left unresolved. Compare that with affirmative action, where the Court has issued substantive constitutional rulings — permitting race-conscious admissions in Grutter (2003), then prohibiting them in Students for Fair Admissions (2023).

The evaluative judgement 4.6 invites: on affirmative action the Court has been the decisive actor and has changed the policy outright; on immigration it has mostly ruled on who may decide, leaving the substance to elected branches that have not acted since 1986.

1. Relying on pre-2005 cases

Section 4.3 requires examples including post-2005 ones. Brown and Roe are useful background, but an answer built on them alone has missed a stated requirement. Pair each older case with a recent one: Roe with Dobbs, Brown with Students for Fair Admissions.

2. Equating activism with liberalism

Activism is about deference, not direction. Dobbs (2022) overturned two of the Court's own precedents; Shelby County (2013) struck down a provision Congress had enacted. Both are activism on the specification's definition, and both are described as conservative rulings. Define the term first, then apply it consistently to both wings of the Court.

3. Describing originalism as simply reading the text

Originalism is a claim about when the meaning was fixed, not just about textual literalism. Bruen (2022) is the clearest illustration: a firearms regulation survives only if it matches the historical tradition of firearm regulation.

4. Treating a 6-3 Court as a 6-3 outcome machine

Two rulings against the sitting president within three months, in December 2025 and February 2026, show that appointment predicts outlook rather than votes. Date-stamp both, and note that the administration still won 21 of 26 rulings on challenges in 2025.

5. Asserting that the Court has unchecked power

The Court can be reversed by amendment, its size is set by statute, and its rulings depend on others to enforce them. The Cooper v Aaron episode after Brown shows what happens when compliance is withheld. Say that the checks are weak rather than absent, and explain why.

6. Balancing without judging

Paper 3 essays carry a third of their marks for AO3. Reach an explicit conclusion on whether the Court is political or judicial, and give a reason drawn from your evidence rather than restating both sides in the final paragraph.