Download Judicial Implementation

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 14th
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.