1. Chapter 12: Judicial Activism and American Democracy Author: Doris Marie Provine Presenter: Chris Giuliano

2. Judicial Activism and American Democracy American democracy limits the scope of government and forces cooperation among the branches. Judicial activism: Judicial authority and influence is growing. Are judges going beyond bounds and expounding too much law? Is policy making a legitimate part of the judicial role?

3. Judicial Activism and American Democracy Power of courts has grown as result of growth in government and growth in popular expectations about courts’ capacities: Size of government has grown and government has increased scope of issues it deals with has resulted in increased statutory interpretation and implementation of federal mandates “Rights Revolution”—greater access for ideological concerns and Congress allows challenges to agencies implementing policies

4. Judicial Activism and American Democracy The issues: Judges have become political strategists, using power to shape law in direction of their preferences and in process damaging our democracy and endangering the rule of law Law’s ambiguity gives judges interpretative options, and this tempts them to become policy makers New Right: decisions limit the reach of popular Bible-based moral principles; courts should not interfere with the will of the people, especially in moral issues Libertarians: principled judicial activism should be used to overturn unwanted legislative initiatives in economy and social relations (reduce government intervention) Corporations: excessive litigation and cost of injuries is problem created by courts and greedy litigants (bottom-line thinking) Executive branch: Republican administrations support court restraint in matters of national and domestic security

5. Judicial Activism and American Democracy Extent and pattern of litigation Perception of too much litigation/court intervention vs. American values of punishing wrongs and addressing injuries Has there been growth in judicial influence? Enormous growth in number of judges US Supreme Court—more significant Litigation (no evidence of litigation explosion): 1.More civil, criminal filings, fewer tort filings 2.Since 60s, dramatic decrease in civil, criminal cases going to trial

6. Judicial Activism and American Democracy Real concern is what courts are doing, rather than the amount of judicial activity: Rise in public interest litigation – Government benefits, prisoners, racial balance, mental health Institutional reform: – Unfunded mandates – reform based on constitutional grounds (schools, prisons) 70s marked rise in elite disillusionment with justice system: – More legal rights for consumers, injured workers, African Americans, women, the disabled, and prisoners – Growth of purposive corporate organizations (i.e., local governments, businesses)that dominate legal system

7. Judicial Activism and American Democracy Evaluating the issues: Idea that judges expounding too much law comes from assumption that proper role of judiciary is to passively apply the law as agent of designated lawmakers Provine’s view: Judges engage in policymaking because that’s the way the system is designed, not because of arrogant interventionism. Policy arises from iterative process among all three branches: Common law system accepts judges as policy makers Legislators don’t always create clear rules; courts need to interpret. Lack of adequate funding for social-welfare reform results in litigation Difficulty of determining historical meaning of constitutional mandates Less perceived confrontation between the branches: – Few cases challenge will of popularly elected leaders – High profile cases, court often has public support – Congress uses vagueness in statutes as strategic advantage

8. Judicial Activism and American Democracy Judicial overview/litigation has advantages: Provides opportunity for participation Accommodates American distrust of politicians Adds aura of legitimacy to government through reasoned decisions and consideration of all sides in dispute Courts create new channels for political debate; value may lie in bringing issues to public’s attention, rather than social change

9. Judicial Activism and American Democracy Should limits be imposed on the scope of judicial review? Who decides the issues? Who do you trust to decide the issues? Judicial oversight is scarce public good. Discussions of scope of judicial review should take into account who will be receiving good and why Must be sensitive to fairness and the potential loss of critical oversight function of judges