Judicial philosophy
Encyclopedia
Judicial philosophy is the set of ideas and beliefs which dictate how Justices and judges
of the United States federal courts
may rule in many cases.
There is a large academic debate over judicial philosophy, with some supporting the theory that justices can be categorized as judicial conservatives, moderates, or liberals based upon their interpretation of the United States Constitution
, while others argue that justices cannot be evaluated using such a rigid division. Still, when nominations to important courts are made, a key issue is judicial philosophy.
judicial philosophy is marked by the belief that judges should not make policy decisions properly left by the text of the U.S. Constitution
to the executive and legislative branches of government. Many judicial conservatives adhere to the idea of originalism
, a method of legal interpretation which states that the original intent
and/or meaning
of the Constitution was fixed by the Founding Fathers of the United States
and cannot be changed except by the amendment process. They believe that, through the process of judicial review
, certain legal rights or restrictions have been taken by modern judges far beyond what was intended by the Founding Fathers. Many judicial conservatives also believe that foreign law
and precedent
should not be a factor in U.S. legal matters.
Politically, a conservative judicial philosophy can in addition be associated with Conservatism
, a defense of established values. As a result, many judicial conservatives believe that "traditional moral values" are important in legal interpretation, and therefore tend to be pro-life
and more lenient with matters concerning the separation of church and state
. Judicial conservatives are almost always nominated by Republicans
.
Prominent Judicial Conservatives on the Supreme Court
include:
Prominent Judicial Conservatives on the Courts of Appeals
include:
which through the process of judicial review
is open to new evaluation and modernization, that foreign law
and precedent
should be a factor in U.S. legal matters, and that certain rights or restrictions should be expanded. Politically, a liberal judicial philosophy can be associated with Progressivism
, a desire for social reform. Due to their general support for strong protection of individual liberties, judicial liberals tend to be pro-choice
and more restrictive in matters concerning the separation of church and state
. Although certain Republican
nominated justices have turned out to be judicial liberals, judicial liberals are generally nominated by Democrats
.
Prominent Judicial Liberals on the Supreme Court
include:
Prominent Judicial Liberals on the Court of Appeals
include:
judicial philosophy is not as easily defined as judicially conservative and liberal philosophies are. It is usually composed of a balance between particular conservative and liberal beliefs. Frequently, judicial moderates are pegged as such because they will vote in a conservative manner on some issues, but vote in a liberal manner on others. This can make a judicial moderate the swing vote
in certain cases depending on which legal issue is being decided. On the other hand, some judicial moderates are pegged as such simply because they will reverse their own prior decisions.
On the appellate level, some jurists are known as judicial moderates because they concentrate on evaluating the law based on wording and past legal precedent (stare decisis
) rather than upon a consideration of outside factors such as religious beliefs or public opinion. Supreme Court justices, however, are less likely to be defined as moderates for the same reason because there is not the same mandate for them to follow stare decisis. As members of the highest court in the land, they can vote to overturn legal precedents and do not have to follow stare decisis if they find such action warranted.
In the case of judicial nominees with no prior judicial experience, some are called moderates because they lack a distinctive past with which to evaluate their future performance as jurists.
Prominent Judicial Moderates include:
United States federal judge
In the United States, the title of federal judge usually means a judge appointed by the President of the United States and confirmed by the United States Senate in accordance with Article II of the United States Constitution....
of the United States federal courts
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
may rule in many cases.
There is a large academic debate over judicial philosophy, with some supporting the theory that justices can be categorized as judicial conservatives, moderates, or liberals based upon their interpretation of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, while others argue that justices cannot be evaluated using such a rigid division. Still, when nominations to important courts are made, a key issue is judicial philosophy.
Judicial Conservative
The conservativeAmerican conservatism
Conservatism in the United States has played an important role in American politics since the 1950s. Historian Gregory Schneider identifies several constants in American conservatism: respect for tradition, support of republicanism, preservation of "the rule of law and the Christian religion", and...
judicial philosophy is marked by the belief that judges should not make policy decisions properly left by the text of the U.S. Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
to the executive and legislative branches of government. Many judicial conservatives adhere to the idea of originalism
Originalism
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
, a method of legal interpretation which states that the original intent
Original intent
Original intent is a theory in law concerning constitutional and statutory interpretation. It is frequently—and usually spuriously—used as a synonym for originalism generally; while original intent is indeed one theory in the originalist family, it has some extremely salient differences which has...
and/or meaning
Original meaning
In the context of United States constitutional interpretation, original meaning is the dominant form of the legal theory of originalism today...
of the Constitution was fixed by the Founding Fathers of the United States
Founding Fathers of the United States
The Founding Fathers of the United States of America were political leaders and statesmen who participated in the American Revolution by signing the United States Declaration of Independence, taking part in the American Revolutionary War, establishing the United States Constitution, or by some...
and cannot be changed except by the amendment process. They believe that, through the process of judicial review
Judicial review in the United States
Judicial review in the United States refers to the power of a court to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself....
, certain legal rights or restrictions have been taken by modern judges far beyond what was intended by the Founding Fathers. Many judicial conservatives also believe that foreign law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
and precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
should not be a factor in U.S. legal matters.
Politically, a conservative judicial philosophy can in addition be associated with Conservatism
Conservatism
Conservatism is a political and social philosophy that promotes the maintenance of traditional institutions and supports, at the most, minimal and gradual change in society. Some conservatives seek to preserve things as they are, emphasizing stability and continuity, while others oppose modernism...
, a defense of established values. As a result, many judicial conservatives believe that "traditional moral values" are important in legal interpretation, and therefore tend to be pro-life
Pro-life
Opposition to the legalization of abortion is centered around the pro-life, or anti-abortion, movement, a social and political movement opposing elective abortion on moral grounds and supporting its legal prohibition or restriction...
and more lenient with matters concerning the separation of church and state
Separation of church and state
The concept of the separation of church and state refers to the distance in the relationship between organized religion and the nation state....
. Judicial conservatives are almost always nominated by Republicans
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
.
Prominent Judicial Conservatives on the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
include:
- Chief JusticeChief JusticeThe Chief Justice in many countries is the name for the presiding member of a Supreme Court in Commonwealth or other countries with an Anglo-Saxon justice system based on English common law, such as the Supreme Court of Canada, the Constitutional Court of South Africa, the Court of Final Appeal of...
John Roberts - Associate JusticeAssociate JusticeAssociate Justice or Associate Judge is the title for a member of a judicial panel who is not the Chief Justice in some jurisdictions. The title "Associate Justice" is used for members of the United States Supreme Court and some state supreme courts, and for some other courts in Commonwealth...
Antonin ScaliaAntonin ScaliaAntonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice... - Associate JusticeAssociate JusticeAssociate Justice or Associate Judge is the title for a member of a judicial panel who is not the Chief Justice in some jurisdictions. The title "Associate Justice" is used for members of the United States Supreme Court and some state supreme courts, and for some other courts in Commonwealth...
Clarence ThomasClarence ThomasClarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court.... - Associate JusticeAssociate JusticeAssociate Justice or Associate Judge is the title for a member of a judicial panel who is not the Chief Justice in some jurisdictions. The title "Associate Justice" is used for members of the United States Supreme Court and some state supreme courts, and for some other courts in Commonwealth...
Samuel AlitoSamuel AlitoSamuel Anthony Alito, Jr. is an Associate Justice of the U.S. Supreme Court. He was nominated by President George W. Bush and has served on the court since January 31, 2006....
Prominent Judicial Conservatives on the Courts of Appeals
United States court of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...
include:
- Judge Edith JonesEdith JonesEdith Hollan Jones is the Chief Judge of the United States Court of Appeals for the Fifth Circuit.Jones graduated from Cornell University in 1971. She received her J.D. from The University of Texas School of Law in 1974...
of the Fifth CircuitUnited States Court of Appeals for the Fifth CircuitThe United States Court of Appeals for the Fifth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Louisiana* Middle District of Louisiana... - Judge Janice Rogers BrownJanice Rogers BrownJanice Rogers Brown is a federal judge on the United States Court of Appeals for the District of Columbia Circuit. She previously was an Associate Justice of the California Supreme Court, holding that post from May 2, 1996 until her appointment to the D.C. Circuit.President George W. Bush...
of the D.C. CircuitUnited States Court of Appeals for the District of Columbia CircuitThe United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a... - Judge William PryorWilliam H. Pryor, Jr.William Holcombe "Bill" Pryor, Jr. is a federal judge on the United States Court of Appeals for the Eleventh Circuit. Previously, he was the Attorney General of the State of Alabama from 1997 to 2004.-Background:...
of the Eleventh CircuitUnited States Court of Appeals for the Eleventh CircuitThe United States Court of Appeals for the Eleventh Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Middle District of Alabama...
Judicial Liberal
The liberal judicial philosophy is marked by the belief that the U.S. Constitution is a living documentLiving Constitution
The Living Constitution is a concept in America, also referred to as loose constructionism, constitutional interpretation which claims that the Constitution has a dynamic meaning or that it has the properties of a human in the sense that it changes...
which through the process of judicial review
Judicial review in the United States
Judicial review in the United States refers to the power of a court to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself....
is open to new evaluation and modernization, that foreign law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
and precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
should be a factor in U.S. legal matters, and that certain rights or restrictions should be expanded. Politically, a liberal judicial philosophy can be associated with Progressivism
Progressivism
Progressivism is an umbrella term for a political ideology advocating or favoring social, political, and economic reform or changes. Progressivism is often viewed by some conservatives, constitutionalists, and libertarians to be in opposition to conservative or reactionary ideologies.The...
, a desire for social reform. Due to their general support for strong protection of individual liberties, judicial liberals tend to be pro-choice
Pro-choice
Support for the legalization of abortion is centered around the pro-choice movement, a sociopolitical movement supporting the ethical view that a woman should have the legal right to elective abortion, meaning the right to terminate her pregnancy....
and more restrictive in matters concerning the separation of church and state
Separation of church and state
The concept of the separation of church and state refers to the distance in the relationship between organized religion and the nation state....
. Although certain Republican
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
nominated justices have turned out to be judicial liberals, judicial liberals are generally nominated by Democrats
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...
.
Prominent Judicial Liberals on the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
include:
- Associate JusticeAssociate JusticeAssociate Justice or Associate Judge is the title for a member of a judicial panel who is not the Chief Justice in some jurisdictions. The title "Associate Justice" is used for members of the United States Supreme Court and some state supreme courts, and for some other courts in Commonwealth...
Ruth Bader GinsburgRuth Bader GinsburgRuth Joan Bader Ginsburg is an Associate Justice of the Supreme Court of the United States. Ginsburg was appointed by President Bill Clinton and took the oath of office on August 10, 1993. She is the second female justice and the first Jewish female justice.She is generally viewed as belonging to... - Associate JusticeAssociate JusticeAssociate Justice or Associate Judge is the title for a member of a judicial panel who is not the Chief Justice in some jurisdictions. The title "Associate Justice" is used for members of the United States Supreme Court and some state supreme courts, and for some other courts in Commonwealth...
Stephen BreyerStephen BreyerStephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court.... - Associate JusticeAssociate JusticeAssociate Justice or Associate Judge is the title for a member of a judicial panel who is not the Chief Justice in some jurisdictions. The title "Associate Justice" is used for members of the United States Supreme Court and some state supreme courts, and for some other courts in Commonwealth...
Sonia SotomayorSonia SotomayorSonia Maria Sotomayor is an Associate Justice of the Supreme Court of the United States, serving since August 2009. Sotomayor is the Court's 111th justice, its first Hispanic justice, and its third female justice....
Prominent Judicial Liberals on the Court of Appeals
United States court of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...
include:
- Judge Boyce F. Martin, Jr.Boyce F. Martin, Jr.Boyce Ficklen Martin Jr. is the most senior active judge on the United States Court of Appeals for the Sixth Circuit. Appointed by President Carter in 1979, Martin has served as Chief Judge of the circuit and has written more than 1100 opinions during his tenure...
of the Sixth CircuitUnited States Court of Appeals for the Sixth CircuitThe United States Court of Appeals for the Sixth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Kentucky* Western District of Kentucky... - Judge Stephen ReinhardtStephen ReinhardtStephen Roy Reinhardt is a circuit judge on the United States Court of Appeals for the Ninth Circuit, with chambers in Los Angeles, California. He was appointed in 1980 by President Jimmy Carter.-Education and practice:...
of the Ninth CircuitUnited States Court of Appeals for the Ninth CircuitThe United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona... - Judge Marsha S. Berzon of the Ninth CircuitUnited States Court of Appeals for the Ninth CircuitThe United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
Judicial Moderate
A moderateModerate
In politics and religion, a moderate is an individual who is not extreme, partisan or radical. In recent years, political moderates has gained traction as a buzzword....
judicial philosophy is not as easily defined as judicially conservative and liberal philosophies are. It is usually composed of a balance between particular conservative and liberal beliefs. Frequently, judicial moderates are pegged as such because they will vote in a conservative manner on some issues, but vote in a liberal manner on others. This can make a judicial moderate the swing vote
Swing vote
Swing vote is a term used to describe a vote that may go to any of a number of candidates in an election, or, in a two-party system, may go to either of the two dominant political parties...
in certain cases depending on which legal issue is being decided. On the other hand, some judicial moderates are pegged as such simply because they will reverse their own prior decisions.
On the appellate level, some jurists are known as judicial moderates because they concentrate on evaluating the law based on wording and past legal precedent (stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
) rather than upon a consideration of outside factors such as religious beliefs or public opinion. Supreme Court justices, however, are less likely to be defined as moderates for the same reason because there is not the same mandate for them to follow stare decisis. As members of the highest court in the land, they can vote to overturn legal precedents and do not have to follow stare decisis if they find such action warranted.
In the case of judicial nominees with no prior judicial experience, some are called moderates because they lack a distinctive past with which to evaluate their future performance as jurists.
Prominent Judicial Moderates include:
- Associate JusticeAssociate JusticeAssociate Justice or Associate Judge is the title for a member of a judicial panel who is not the Chief Justice in some jurisdictions. The title "Associate Justice" is used for members of the United States Supreme Court and some state supreme courts, and for some other courts in Commonwealth...
Anthony KennedyAnthony KennedyAnthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions... - Former Associate JusticeAssociate JusticeAssociate Justice or Associate Judge is the title for a member of a judicial panel who is not the Chief Justice in some jurisdictions. The title "Associate Justice" is used for members of the United States Supreme Court and some state supreme courts, and for some other courts in Commonwealth...
Sandra Day O'ConnorSandra Day O'ConnorSandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
See also
- Active LibertyActive LibertyActive Liberty: Interpreting Our Democratic Constitution is a 2005 book by United States Supreme Court Justice Stephen Breyer. The general theme of the book is that Supreme Court justices should, when dealing with Constitutional issues, keep "active liberty" in mind, which Justice Breyer defines...
- Constitution in exileConstitution in exileConstitution in Exile is a controversial term that refers to the situation resulting from provisions of the United States Constitution allegedly not having been enforced according to their "original intent" or "original meaning"...
- ConstitutionalismConstitutionalismConstitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....
- Constitutional economicsConstitutional economicsConstitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
- Due processDue processDue process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
- Independence of the judiciary
- Judicial activismJudicial activismJudicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
- Judicial interpretationJudicial interpretationJudicial interpretation is a theory or mode of thought that explains how the judiciary should interpret the law, particularly constitutional documents and legislation...
- Judicial minimalismMinimalism (judicial)Judicial minimalism refers to a philosophy in United States constitutional law which promotes itself as a politically moderate viewpoint.-Summary and complaints against "judicial extremism":Largely associated with Cass R...
- Judicial restraintJudicial restraintJudicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional...
- Legal formalismLegal formalismLegal formalism is a legal positivist view in philosophy of law and jurisprudence. While Jeremy Bentham's can be seen as appertaining to the legislature, legal formalism appertains to the Judge; that is, formalism does not suggest that the substantive justice of a law is irrelevant, but rather,...
- Legal realismLegal realismLegal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States...
- Legislative intentLegislative intentIn law, the legislative intent of the legislature in enacting legislation may sometimes be considered by the judiciary when interpreting the law...
- OriginalismOriginalismIn the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
- Plain Meaning RulePlain Meaning RuleThe Plain meaning rule, also known as the literal rule, is one of three rules of statutory construction traditionally applied by English courts...
- Purposive theoryPurposive theoryPurposive theory is a theory of statutory interpretation that holds that common law courts should interpret legislation in light of the purpose behind the legislation. Purposive theory stands in contrast to textualism or statutory derogation, two other prominent common law interpretation...
- Public interest litigationPublic interest litigationIn Indian law, Public Interest Litigation OR जनहित याचिका means litigation for the protection of the public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party...
- Rule according to higher lawRule according to higher lawThe rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...
- Statutory interpretationStatutory interpretationStatutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or...
- Strict constructionismStrict constructionismIn the United States, Strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. The phrase is also commonly used more loosely as a generic term for conservatism among the judiciary.- Strict sense of the term :Strict...
- TextualismTextualismTextualism is a formalist theory of statutory interpretation, holding that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or...