Judicial Philosophy, Decision Making, and Implementation
Lecture 6E Oyez, Oyez, Oyez!
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Topics 1.What are examples of different judicial philosophies?
2.What factors do jurists consider when making a decision? 3.How
are decisions implemented?
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Judicial Philosophy Determining what the Framers meant in the
Constitution, if possible, is based on an individuals
philosophy.
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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 judges own
sense of principles.
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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
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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.
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Judicial Philosophy Judicial Activism Courts role to correct
injustices committed by the other branches Courts need to protect
oppressed minorities More liberal approach
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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
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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 Amendments equal protection clause, some states would
still have segregated schools
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Judicial Philosophy Some scholars point to recent conservative
activism on the Court. Citizens United v. FEC as an example?
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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
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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?
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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
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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.
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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 FDRs New
Deal programs
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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
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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
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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.
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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
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Implementation For Effective Implementation Implementation
Population (those responsible for carrying out the decision) must
act to show that they understand the original decision.
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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.
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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.
