Aim: What ideologies do federal judges hold?

• Party background has some influence - Democratic judges - more liberal than Republican ones

• But ideology does NOT always determine behavior • Eisenhower nominated Earl Warren who made very

liberal decisions• Reagan nominates ultra-conservative Bork to

Supreme Court: Democratic Senate rejects nomination

Warren Bork

Judicial and Political Philosophy

Liberal

Leans to the left on public policy and would vote Democrat

Conservative

Leans to the right on public policy and would vote Republican

Judicial Activism – loose constructionist

Judges should interpret law loosely, using their power to promote their preferred political and social goals. Judges are said to be activists when they are likely to interject their own values in court decision

Judicial Restraint – strict constructionist (original intent)

Legislators, not judges, should make the laws. Judges are said to exercise judicial restraint when they rule closely to statutes and previous cases when reaching their decisions. They follow the “original intent” of the framers.

Freedom Order

Equality

Freedom

Judicial Philosophy and Decision Making

• Judicial restraint:– A philosophy of judicial decision making that argues

courts should allow the decisions of other branches of government to stand, even when they offend a judge’s own sense of principles.

• Judicial activism:– A philosophy of judicial decision making that argues

judges should use their power broadly to further justice, especially in the areas of equality and personal liberty.

The Courts as Policymakers

• Implementing Court Decisions– Must rely on others to carry out decisions– Interpreting population: understand the

decision– Implementing population: the people who

need to carry out the decision – may be disagreement

– Consumer population: the people who are affected (or could be) by the decision

The Courts and Democracy• Not elected• Difficult to remove

– The courts do reflect popular majorities– Groups are likely to use the courts when other

methods fail – promoting pluralism

Implementation

• “John Marshall has rendered his decision; now let him enforce it!” – Andrew Jackson

• “All deliberate speed” – Chief Earl Warren– 10 years after Brown only 1% of Southern

schools were desegregated

• Court must rely on branches, states, and officials to enforce its ruling

The Courts and the Policy Agenda

• A Historical Review– John Marshall (1801-1835) and the Growth of Judicial

Review• Marbury v. Madison• Judicial review: courts determine constitutionality

of acts of Congress– The “Nine Old Men” – switch in time and the New Deal– The Warren Court – Liberal Activist – 1953-1969– The Burger Court – 1969-1986– The Rehnquist Court – 1986-2005– The Roberts Court??? – 2005-

Judicial Policy Making and Implementation

• Policy making:– More than one hundred federal laws have

been declared unconstitutional.– Ability to overrule itself

• Judicial Implementation:– Refers to how and whether judicial decisions

are translated into actual public policies affecting more than the immediate parties to a lawsuit.

Constraints on the Power of Federal Courts

1. Adversarial system – decision must be made between 2 choices, and court can’t bring up an issue

2. Justiciable dispute – must judge actual situations, not hypothetical situations

3. Political question – absence of law to rule on a case and the court calls on the Congress to create law

Ex. – gay marriage – equal protection

Checks on Supreme Court

• No police force or army• Senate confirmation of judicial appts by 51% vote• Impeachment of judges by Congress• Congress determines # of judges (can increase)• Amendments to the Constitution can overturn

Court decisions (16th Amendment - income tax)• Congress can decide what the entire jurisdiction

of the lower & appellate jurisdiction of the SC shall be

• Public opinion - sensitive to elite opinions

Understanding the Courts

What does this cartoon tell us about Supreme Court decisions?

Conclusion:

1. Based on what we have learned so far, do you think the Supreme Court has too much power in establishing public policy? Explain.

2. Do you agree with most of the decisions that have been made? Why or why not?

3. How does the Supreme Court impact American Government and Society?