Judicial Philosophy And Decision-Making Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

Judicial philosophy is the set of ideas that inform how justices and judges rule in cases. Judicial philosophies can be based on many different elements. They may be based on theories of constitutional inter pretation, views about the place of courts in a democratic republic, or notions about the role of precedent and what the words of the Constitution meant at its founding. Some justices advocate a more active role for the court to address social evils or protect “discrete and insular minorities.” Others encourage judicial restraint to avoid usurping the democratic process of lawmaking.

Political science scholarship, however, has called into question whether such philosophies are explanatory of judicial decision making. Justices also may alternatively base their decisions on their opinions or attitudes about public policy. For this reason, justices usually are labeled as conservative, liberal, or moderate, the same labels that are applied to other political actors. While all judges and justices espouse judicial philosophies, this entry centers on the place of judicial philosophies in the decisions made by justices of the Supreme Court of the United States.

Classical Judicial Philosophy: Interpretivism And Originalism

The most basic distinction in judicial philosophies for Supreme Court justices is between interpretivism, which sees the task of judicial review as a matter of interpreting and applying the Constitutional text, and noninterpretivism, which is willing to reject aspects of the text for the sake of contemporary notions of justice. As few if any justices explicitly defend noninterpretativism, judicial philosophies tend to rather be contrasted between “strict” and “loose” constitutional interpretation.

A variation on the classic strict-loose differentiation in judicial philosophy, one that is widely discussed politically in the early twenty-first century, is a difference in viewpoint among justices as to the importance of what the words meant at the time of the framing of the Constitution and its amendments. Justices who subscribe to the judicial philosophy that restricts the scope of the Constitution to its original meaning are commonly known as originality. They argue that the court preserves its proper democratic function by restricting itself to upholding the decisions of the past, and that new applications of those principles should come from the legislature or a constitutional amendment.

Nonoriginalist justices, by contrast, believe that what the words meant when the Constitution was written is only one factor among many to consider when interpreting the Constitution. They argue that in some cases, the words of the text themselves carry a greater meaning than the Founders may have intended. For instance, the Fourteenth Amendment was originally intended to give equal rights to African Americans (especially former slaves), but its prohibition of discrimination is not restricted and should be applied more generally. They also generally place more importance on court decisions since the founding period in light of changing social, economic, and political factors through history. Contemporary originalist justices, such as Justices Antonin Scalia and Clarence Thomas, are usually considered conservatives. In contrast, nonoriginalist justices may be liberal, moderate, or conservative, depending on the many additional grounds upon which justices make constitutional choices.

A Political Science Model Of Judicial Decision-Making: Attitudinalism

Political scientists have responded to these varied judicial philosophies by empirically investigating how judges actually make decisions. Political scientists widely hold the notion that at the core of judicial decision-making is not an official judicial philosophy, but rather a judge’s view of what the policy outcome should be in a particular case. This view asserts that judges base their decisions on the facts of a case juxtaposed against their personal policy choices. Scholars with this view are called attitudinalists. Attitudinalists believe that when conservatives on the Supreme Court are replaced by liberals, as was done in the late 1930s and early 1940s, and again in the 1950s and early to mid-1960s, liberal decisions in policy terms are the result. They would similarly expect that when conservatives are appointed to the court, conservative policy decisions are the result. Attitudinalists claim that preferences alone, usually policy preferences, account for a justice’s vote in a particular case.

Thus, attitudinalists say that Supreme Court justices are like elected and appointed government officials who are free to make decisions based on their political preferences or “attitudes” to public policy. In fact, attitudinalists claim that justices are freer to make decisions in terms of their attitudes on policy because they have life tenure, unlike elected officials. Jeffrey Segal, perhaps the foremost attitudinalist of the past two decades, argues that judges vote their ideological preferences. In addition, attitudinalists argue that legal discretion in cases that reach the Supreme Court combines with institutional incentives, like life tenure, to favor court independence so justices are capable of acting like single-mined seekers of legal policy. In other words, “Justices decide cases on the merits in light of the facts in the case vis-à-vis their sincere ideological attitudes and values” (1999, 238). The most pure form of the attitudinal model, one in which jurists have unconstrained choice to make decisions on the basis of judicial philosophy, viewed as policy desires, is the Supreme Court, especially when justices make decisions on the merits of a case. The reasons for this are that “[n]o court can overrule the Supreme Court, the Justices have life tenure with no diminution of pay, and docket weeds out legally unambiguous cases” (1999, 238).

Attitudinalists consider institutional and legal norms (such as the rule of following precedent, the need to be consistent in the development of doctrine, interchanges among justices in the decision-making process itself, and changing political, social, economic, and historical contexts outside courts over time, including those after a given judge joins a court) to play little role in shaping or constraining the Supreme Court, or any courts, in what Howard Gillman has called “the presumptive desire of judges to promote policy preferences” (1999, 66). Among the factors that attitudinalists reject as key to court decision making include legal rules, the certiorari process, opinion assignment, accommodations among justices in the decision-making process, precedent, and theories about the role of the courts as compared to legislative and executive institutions.

An Alternative Political Science Viewpoint: Historical Institutionalism

One group of nonattitudinalist scholars, called historical institutionalists, considers historical accounts of institutional development or interpretive characterizations of the actions of judges and other political actors. They look at preference formation itself and view the process as constitutive.

—–Judicial behavior is not merely structured by institutions but is also constituted by them in the sense that the goals and values associated with particular political arrangements give energy and direction to political actors. The work is historical because it is assumed that, over time, as institutions interact with the features of the political system and attempt to cope with a changing society they might transform themselves and develop new norms, traditions, and functions. (Gillman and Clayton, 1999, 6–7).

Historical institutionalists also argue “that individual conduct is not just the consequence of particular institutional settings, but the product of much larger social frameworks” (7). Social institutionalists argue that:

individuals find themselves embedded in cultural and organizational fields or sectors which determine the very concept of self-interest and utility. Thus the conduct of individuals within particular institutions must be understood to be within the contextual web of attachments, obligations, and affective bonds that constitute the essential grounds of conduct. These would include such broad social and cultural structures as class, race, gender, and religion (7).

Thus, social institutionalists explore the larger ideological or cultural contexts within which institutions develop identities.

Scholars of what has been called the historical institutionalist model of court decision making argue that judges are less affected by personal judicial philosophy and attitudes than they are by the institutions in which they are embedded and, most importantly, the social, economic, and political world outside institutions. Thus, it is institutional, legal, and historical factors which explain doctrinal change, not the attitudes of judges toward public policy. Moreover, these factors cause judges to make decisions in support of a public policy or case outcome that they would oppose were they not a justice, but rather an elected official.

Finally, part of the Supreme Court decision-making process may also involve strategic concerns among judges as to the effect of a decision on the Supreme Court as an institution. For example, a justice might consider whether reversing a landmark decision would undermine the legitimacy of the court, when the principles upon which that decision was based not only continue to exist, but have been expanded by subsequent cases, and where citizens have relied on the decision in their everyday lives. This is exactly what the Supreme Court asked and answered when it refused to overturn the 1973 abortion rights case, Roe v.Wade, when it decided Planned Parenthood v. Casey in 1992. The court did this even though several justices in the majority opposed the policy that gave women the right to abortion choice.

Bibliography:

Gillman, Howard. “The Court as an Idea: Not a Building (or a Game): Interpretive Institutionalism and the Analysis of Supreme Court Decision-making.” In Supreme Court Decision-making: New Institutionalist Approaches, edited by Cornell W. Clayton and Howard Gillman, 65–87. Chicago: University of Chicago Press, 1999.
Gillman, Howard, and Cornell W. Clayton. “Beyond Judicial Attitudes: Institutional Approaches to Supreme Court Decision-making.” In Supreme Court Decision-making: New Institutionalist Approaches, edited by Cornell W. Clayton and Howard Gillman, 1–12. Chicago: University of Chicago Press, 1999.
Kahn, Ronald. “Institutional Norms and the Historical Development of Supreme Court Politics: Changing ‘Social Facts’ and Doctrinal Development.” In The Supreme Court in American Politics: New Institutionalist Interpretations, edited by Howard Gillman and Cornell W. Clayton, 43–59. Lawrence: University Press of Kansas, 1999.
“Social Constructions, Supreme Court Reversals, and American Political Development: Lochner, Plessy, Bowers, but Not Roe.” In The Supreme Court and American Political Development, edited by Ronald Kahn and Ken I. Kersch, 67–113. Lawrence: University Press of Kansas, 2006.
Segal, Jeffrey A. “Supreme Court Deference to Congress: An Examination of the Marksist Model.” In Supreme Court Decision-making: New Institutionalist Approaches, edited by Cornell W. Clayton and Howard Gillman, 237–253. Chicago: University of Chicago Press, 1999.
Segal, Jeffrey A., and Harold J. Spaeth. The Supreme Court and the Attitudinal Model Revisited. Cambridge: Cambridge University Press, 2002.

This example Judicial Philosophy And Decision-Making Essay is published for educational and informational purposes only. If you need a custom essay or research paper on this topic please use our writing services. EssayEmpire.com offers reliable custom essay writing services that can help you to receive high grades and impress your professors with the quality of each essay or research paper you hand in.