Judicial Philosophy and Decision-Making

Consider: What is an activist judge?The Last Word: Assignment #23 for Monday; Collaborize by Fri 3pm

Judicial Philosophy and Decision-Making

Judicial PhilosophyThere are generally two ways that judges can look at the Constitution when making a decision:Strict construction (aka, judicial restraint, or originalism)This is the belief that laws should not be struck down by the court unless the text of the Constitution specifically forbids them; Typically, a restraint position would not void a law unless the conflict with the Constitution was explicit, or required little interpretation.Original intent meanings of the Constitution can be clarified by examining Founder intentionsActivism (or judicial activism) Belief that the job of the court is to apply the Constitution to current circumstances, and consider the political, legal, economic or religious circumstances of the day when making decisions.Typically, an activist position would void laws by pointing to the spirit or values embodied in the Constitution as applied to current circumstancesCreating Rights?An important point to remember is that court decisions really dont give people rights (even the Bill of Rights doesnt do that per se), but rather that they define the limits of government infringement.For example, although the result of Roe vs. Wade was effectively to guarantee a womans right to an abortion in certain cases, the actual decision was to strike down a law which restricted women from having an abortion.The language can do both at the same time, and we can talk of creating rights, but all that has changed is our interpretation of the Constitution, not the actual text

So the nullification of government infringement is the creation of a right

How might this right be taken away? 2 ways

9.5Public OpinionCan check the power of the courtsActivist periodsMay consider public opinion when issuing rulings Korematsu v. U.S. (1944)Public confidence in CourtHas ebbed and flowed

8The relationship between the Supreme Court and public opinion can seem like a moving target. At times the Court appears to have heeded the call of public opinion, such as when, in 1936, it reversed many of its earlier decisions that had blocked President Roosevelts New Deal programs.

But at times of war and other emergencies, the Supreme Court has decided cases that seemed to favor public opinion over constitutional principles. In Korematsu v. U.S., the Court seemed to bend to public fears during World War II when it upheld the clearly unconstitutional internment of Japanese Americans. Perhaps as a result of these actions, public confidence in the court has varied throughout its history.http://www.c-span.org/video/?292678-1/original-intent-living-constitution- Judicial Activism and RestraintVideo: Thinking Like a Political Scientisthttp://media.pearsoncmg.com/ph/hss/SSA_SHARED_MEDIA_1/polisci/presidency/Seg4_Judiciary_v2.html

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Why do legal scholars and political scientists disagree over how judges make decisions? In this video, East Central University political scientist Christine Pappas analyzes this and other questions scholars study. She explains how the other branches of government limit the role of the judiciary in public policy-making, and discusses research on how public opinion influences the courts.11Consider: Does the Court create rights?The Last Word: Assignment #23 for Monday; Collaborize post by Fri 3pm, reply by Monday before class.

Designed by the molecular gastronomy outfit Molecule-R, this smelly piece of flatware does exactly what you'd imagine something called "The Aromafork" would do. It stinks. There's a little slot on the back for holding "diffusing papers" that you can drop an aromatic essence onto; then, when you take a bite, you also get a whiff of fragrance. The starter kit comes with 21 different aromas, from chocolate to wasabi to truffle to mint.Consider this:Does the commerce clause enable government to ban online gambling? Does the necessary and proper clause enable government to require people to buy health insurance, or pay a tax?Does the right to determine a uniform rule of naturalization give the federal gov sole control over immigration laws?Does the 4th amendment prevent government from overhearing cell phone transmissions?Does the 4th amendment prevent government from intruding on your right to have an abortion?Does the 8th amendment prohibit government from using the death penalty?Does equal protection mean gays must be allowed to marry like hetero couples?Creating Rights?An important point to remember is that court decisions really dont give people rights (even the Bill of Rights doesnt do that per se), but rather that they define the limits of government infringement.For example, although the result of Roe vs. Wade was effectively to guarantee a womans right to an abortion in certain cases, the actual decision was to strike down a law which restricted women from having an abortion.The language can do both at the same time, and we can talk of creating rights, but all that has changed is our interpretation of the Constitution, not the actual text

So the nullification of government infringement is the creation of a right

How might this right be taken away? 2 ways

Hollingsworth vs. PerryAlthough the Court ruled that the proponents of Prop 8 did not have standing (thus did not rule on the merits of the case), we can discern the nature of the decision on the merits by looking at the district court decision (affirmed by the appeals court), which was effectively upheld by the lack of a Supreme Court intervention.

The district court had ruled that Prop 8 did violate the 14th amendment to the Constitution.

Would you consider this an activist or restraint position?