Judicial Philosophy, Decision Making, and Implementation Lecture 6E Oyez, Oyez, Oyez!

Topics 1.What are examples of different judicial philosophies? 2.What factors do jurists consider when making a decision? 3.How are decisions implemented?

Judicial Philosophy Determining what the Framers meant in the Constitution, if possible, is based on an individual’s philosophy.

Judicial Philosophy Judicial Restraint Philosophy of judicial decision making that argues courts should allow the decisions of other branches of government to stand when they offend a judge’s own sense of principles.

Judicial Philosophy Judicial Restraint Judiciary composed of unelected judges, so it is the least democratic branch Justices should defer to other branches for policy making when possible More conservative approach

Judicial Philosophy Judicial Activism Philosophy of judicial decision making that argues judges should use power broadly to further justice, especially in areas of equality and equal protection.

Judicial Philosophy Judicial Activism Court’s role to correct injustices committed by the other branches Courts need to protect oppressed minorities More liberal approach

Judicial Philosophy Roe v. Wade (1973) Liberalized abortion law Cited as judicial activism run amok by opponents who say courts should have deferred to states or other branches on abortion

Judicial Philosophy Brown v. Board of Education (1954) Desegregated Schools Cited by activists as an excellent example of activism. If High Court did not say that segregated school violated the 14 th Amendment’s equal protection clause, some states would still have segregated schools

Judicial Philosophy Some scholars point to recent conservative activism on the Court. Citizens United v. FEC as an example?

Judicial Decision Making What factors influence Justices as they make decisions? Behavior Characteristics Includes childhood experiences, religious values, education, political and legal careers, political party loyalties

Judicial Decision Making Behavior Characteristics Examples Justice Blackman worked at Mayo Clinic. Did that influence his vote in Roe? Potter Stewart defended the free press. Is that because he was a journalist earlier?

Judicial Decision Making Attitudinal Model Links judicial attitudes with decision making. Justices decide cases based on their preferences toward issues of public policy, like: Party ID Party of the appointing President Liberal/conservative leanings of the Justice

Judicial Decision Making Strategic Model Justices weigh and assess their actions against those of other Justices to increase the chance that their preferences will be adopted by the whole Court.

Judicial Decision Making Public Opinion Justices often have knowledge of public opinion, especially on controversial issues. Activist periods on the Court have corresponded to periods of social or economic crisis Marshall Court and national government 1936 and Court reversing decisions that blocked many of FDR’s New Deal programs

Judicial Decision Making Public Opinion Court is also the target of public opinion. People often demonstrate during controversial cases. Webster v. Reproduction Health Services Former Justices commented publicly 300,000 people marched Full page ads

Judicial Decision Making Public Opinion Court can sway public opinion, too. Court rulings on controversial issues (abortion, death penalty, for example) can cause public opinion to ebb and flow Nixon v. US – very high confidence

Implementation Judicial Implementation How and whether judicial decisions are translated into actual public policies affecting more than the immediate parties to a lawsuit. “John Marshall has made a decision, now let him enforce it.”

Implementation Judicial Implementation Often requires the cooperation of other branches of government. Brown v. Board of Education (1954) Not popular in the South Lacked precise guidelines Needed the support of other branches

Implementation For Effective Implementation Implementation Population (those responsible for carrying out the decision) must act to show that they understand the original decision.

Implementation For Effective Implementation Implementation must actually follow Court policy Responsibility for implementation is concentrated in the hands of a few highly visible public officials Like President or state Governor Faubus in AK refused to implement Brown.

Implementation For Effective Implementation Consumer Population (those who are directly affected by a decision) must be aware of the rights that a decision grants or denies them.