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

Strict constructionist – (Judicial Restraint) judges should confine themselves to applying those rules that are stated in or clearly implied by the language of the Constitution - Scalia, Thomas Original Intent

Activist Approach - Loose Constructionist - judges should discover the general principles underlying the Constitution & its vague language and amplify those principles on the basis of some moral or economic philosophy & apply them to cases - Brown 1954, Roe yrs ago - judicial activists tended to be conservative & strict constructionist judges were liberal - today the opposite is true - Breyer, Ginsburg, Stevens

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. FreedomOrder 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 ( ) 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 – –The Burger Court – –The Rehnquist Court – –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?