Judicial philosophy is the set of ideas and beliefs which dictate how
Justices and
judgesIn the United States, the title of federal judge is usually given to a judge appointed by the President of the United States and confirmed by the United States Senate in accordance with Article III of the United States Constitution....
of the
United States federal courtsThe United States federal courts comprises the Judiciary Branch of government organized under the Constitution and laws of the federal government of the United States...
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 ConstitutionThe Constitution of the United States of America is the supreme law of the United States. It is the foundation and source of the legal authority underlying the existence of the United States of America and the federal government of the United States...
, while others argue that justices cannot be evaluated using such a rigid division.
Judicial philosophy is the set of ideas and beliefs which dictate how
Justices and
judgesIn the United States, the title of federal judge is usually given to a judge appointed by the President of the United States and confirmed by the United States Senate in accordance with Article III of the United States Constitution....
of the
United States federal courtsThe United States federal courts comprises the Judiciary Branch of government organized under the Constitution and laws of the federal government of the United States...
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 ConstitutionThe Constitution of the United States of America is the supreme law of the United States. It is the foundation and source of the legal authority underlying the existence of the United States of America and the federal government of the United States...
, 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. Beyond judicial and constitutional theory, many justices or judges may at times vote in line with either the popular "conservative" or "liberal" positions of the day. This can earn them a conservative or liberal label based on how often they align themselves with particular political positions, independent of their philosophical or theoretical views on the
ConstitutionThe Constitution of the United States of America is the supreme law of the United States. It is the foundation and source of the legal authority underlying the existence of the United States of America and the federal government of the United States...
and/or the role of judges in general. As an example of how labels can be somewhat confusing when applied in reference to a judge, Erik Jaffe, a former clerk to Justice
Clarence ThomasClarence Thomas is an Associate Justice of the Supreme Court of the United States, having served since 1991. Justice Thomas is the second African American to serve on the nation's highest court, after Justice Thurgood Marshall, whom he succeeded.Thomas grew up in Georgia, and graduated from...
has pointed out that the term "conservative" is frequently misunderstood in public debate:
Judicial Conservative
The
conservativeConservatism in the United States is a major American political philosophy. In contemporary American politics, it is often associated with the Republican Party...
judicial philosophy is marked by the belief that judges should not make policy decisions properly left by the text of the
U.S. ConstitutionThe Constitution of the United States of America is the supreme law of the United States. It is the foundation and source of the legal authority underlying the existence of the United States of America and the federal government of the United States...
to the executive and legislative branches of government. Many judicial conservatives adhere to the idea of
originalismIn the context of United States constitutional interpretation, originalism is a family of theories central to all of which is the proposition that the Constitution has a fixed and knowable meaning, which was established at the time of its drafting. A neologism, "originalism" is a formalist theory...
, a method of legal interpretation which states that the
original intentOriginal 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
meaningOriginal meaning is the dominant form of the legal theory of originalism today. It was made popular by Supreme Court Justice Antonin Scalia. It contends that the terms of the United States Constitution should be interpreted as meaning what they meant when they were ratified, which is to say, it...
of the Constitution was fixed by the
Founding Fathers of the United StatesThe Founding Fathers of the United States were the political leaders who signed the Declaration of Independence in 1776 or otherwise took part in the American Revolution in winning American independence from Great Britain, or who participated in framing and adopting the United States Constitution...
and cannot be changed except by the amendment process. They believe that, through the process of
judicial reviewJudicial 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
lawLaw is a system of rules, usually enforced through a set of institutions. It shapes politics, economics and society in numerous ways and serves as a primary social mediator of relations between people. Contract law regulates everything from buying a bus ticket to trading on derivatives markets...
and
precedentIn common law legal systems, a precedent or authority is a legal case establishing a principle or rule that a court or other judicial body utilizes when deciding subsequent cases with similar issues or facts.-Binding precedent:...
should not be a factor in U.S. legal matters.
Politically, a conservative judicial philosophy can in addition be associated with
ConservatismConservatism is the diverse political and social philosophy that supports tradition and the status quo, or that calls for a return to the values and society of an earlier age, the status quo ante. However, the term has been used by politicians and political commentators with a variety of meanings...
, 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-lifeThe pro-life movement is a political and social movement focused chiefly around opposition to abortion, and especially support for the criminalization of abortion. Those involved in the movement generally maintain that human fetuses and embryos are persons, and that therefore they have a right to...
and more lenient with matters concerning the
separation of church and stateSeparation of church and state is a political and legal doctrine that government and religious institutions are to be kept separate and independent from each other...
. Judicial conservatives are almost always nominated by
RepublicansThe 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 Grand Old Party or the GOP, despite being the younger of the two major parties. In the U.S...
.
Prominent Judicial Conservatives on the
Supreme CourtThe Supreme Court of the United States is the highest judicial body in the United States, and leads the federal judiciary. It consists of the Chief Justice of the United States and eight Associate Justices, who are nominated by the President and confirmed with the "advice and consent" of the Senate...
include:
- Chief Justice
The 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 Supreme Court of India, the Supreme Court of Pakistan, the Supreme...
John Roberts
- Associate Justice
Associate 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 Scaliais an Associate Justice of the Supreme Court of the United States. He was appointed in 1986 by President Ronald Reagan having previously served on the D.C. Circuit and in the Nixon and Ford administrations, and teaching law at the Universities of Virginia and Chicago...
- Associate Justice
Associate 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 Thomas is an Associate Justice of the Supreme Court of the United States, having served since 1991. Justice Thomas is the second African American to serve on the nation's highest court, after Justice Thurgood Marshall, whom he succeeded.Thomas grew up in Georgia, and graduated from...
- Associate Justice
Associate 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 Anthony Alito, Jr. is an Associate Justice of the Supreme Court of the United States. He was appointed by President George W. Bush and has served on the court since January 31, 2006....
Prominent Judicial Conservatives on the
Courts of AppealsThe United States courts of appeals are the intermediate appellate courts of the United States federal court system...
include:
- Judge Edith Jones
Edith Hollan Jones is the Chief Judge of the United States Court of Appeals for the Fifth Circuit....
of 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 Brown
Janice 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. 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 Pryor
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 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* Northern District of Alabama...
Judicial Liberal
The liberal judicial philosophy is marked by the belief that the U.S. Constitution is a
living documentThe Living Constitution is a concept in American constitutional interpretation which claims that the Constitution has a dynamic meaning. The idea is associated with views that contemporaneous society should be taken into account when interpreting key constitutional phrases.While the arguments for...
which through the process of
judicial reviewJudicial 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
lawLaw is a system of rules, usually enforced through a set of institutions. It shapes politics, economics and society in numerous ways and serves as a primary social mediator of relations between people. Contract law regulates everything from buying a bus ticket to trading on derivatives markets...
and
precedentIn common law legal systems, a precedent or authority is a legal case establishing a principle or rule that a court or other judicial body utilizes when deciding subsequent cases with similar issues or facts.-Binding 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
ProgressivismProgressivism is a political and social term for ideologies and movements favoring or advocating changes or reform, usually in a statist or egalitarian direction for economic policies and liberal direction for social policies...
, a desire for social reform. Due to their general support for strong protection of individual liberties, judicial liberals tend to be
pro-choicePro-choice describes the political and ethical view that a woman should have complete control over her fertility and the choice to continue or terminate a pregnancy. This entails the guarantee of reproductive rights, which includes access to sexual education; access to safe and legal abortion,...
and more restrictive in matters concerning the
separation of church and stateSeparation of church and state is a political and legal doctrine that government and religious institutions are to be kept separate and independent from each other...
. Although certain
RepublicanThe 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 Grand Old Party or the GOP, despite being the younger of the two major parties. In the U.S...
nominated justices have turned out to be judicial liberals, judicial liberals are generally nominated by
DemocratsThe Democratic Party is one of the two major contemporary political parties in the United States, along with the Republican Party. It is the oldest political party in continuous operation in the United States and it is one of the oldest parties in the world. In the U.S...
.
Prominent Judicial Liberals on the
Supreme CourtThe Supreme Court of the United States is the highest judicial body in the United States, and leads the federal judiciary. It consists of the Chief Justice of the United States and eight Associate Justices, who are nominated by the President and confirmed with the "advice and consent" of the Senate...
include:
- Associate Justice
Associate 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...
John Paul StevensJohn Paul Stevens is the senior Associate Justice of the Supreme Court of the United States. He joined the Supreme Court in 1975 and is the oldest member of the Court. He was appointed to the Court by Republican President Gerald Ford. Stevens is widely considered to be on the liberal side of the...
- Associate Justice
Associate 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 Joan Bader Ginsburg is an Associate Justice on the Supreme Court of the United States. Ginsburg was appointed by Democratic President Bill Clinton with the support of Republican Judiciary Chairman Senator Orrin Hatch in 1993 and generally votes with the liberal wing of the court...
- Associate Justice
Associate 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 Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by Democratic 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.Following a clerkship with Supreme...
Prominent Judicial Liberals on the
Court of AppealsThe United States courts of appeals are the intermediate appellate courts of the United States federal court system...
include:
- Judge Stephen Reinhardt
Stephen 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....
of the Ninth CircuitThe U.S. 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 Guido Calabresi
Guido Calabresi is an Italian-American legal scholar and senior judge on the U.S. Court of Appeals for the Second Circuit. He is a former Dean of Yale Law School, where he has been a professor since 1959...
of the Second CircuitThe United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
- Judge Marsha S. Berzon of the Ninth Circuit
The U.S. 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
moderateIn politics and religion, a moderate is an individual who is not extreme, partisan or radical.Aristotle favoured conciliatory politics dominated by the centre rather than the extremes of great wealth and poverty or the special interests of oligarchs and tyrants.-See also:*Centrism*Disadvantages for...
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 voteSwing 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 decisisStare decisis is the legal principle by which judges are obliged to obey the precedents established by prior decisions.In the United States, which uses a common law system in its federal courts and most of its state courts, the Ninth...
) 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 Justice
Associate 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 McLeod Kennedy is an Associate Justice of the U.S. Supreme Court, having been appointed by Republican President Ronald Reagan in 1988...
- Former Associate Justice
Associate 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'Connor is an American jurist and 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...
See also
- Active Liberty
Active 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 exile
The Constitution 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"...
- Due process
Due process alternatively due process of law or the process that is due, is the principle that the government must respect all of the legal rights that are owed to a person according to the law...
- Judicial activism
Judicial activism is a critical term used to describe judicial rulings that impose a personal biased interpretation by a given court of what a law means as opposed to what a neutral, unbiased observer would naturally interpret a law to mean....
- Judicial interpretation
Judicial interpretation is a theory or mode of thought that explains how the judiciary should interpret the law, particularly constitutional documents and legislation...
- Judicial minimalism
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 restraint
Judicial 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...
- Judicial review
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....
- Legal formalism
Legal 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 realism
Legal realism is a family of theories about the nature of law developed in the first half of the 20th century in the United States and Scandinavia...
- Legislative intent
In law, the legislative intent of the legislature in enacting legislation may sometimes be considered by the judiciary when interpreting the law...
- Living Constitution
The Living Constitution is a concept in American constitutional interpretation which claims that the Constitution has a dynamic meaning. The idea is associated with views that contemporaneous society should be taken into account when interpreting key constitutional phrases.While the arguments for...
- Originalism
In the context of United States constitutional interpretation, originalism is a family of theories central to all of which is the proposition that the Constitution has a fixed and knowable meaning, which was established at the time of its drafting. A neologism, "originalism" is a formalist theory...
- Plain Meaning Rule
The Plain meaning rule, also known as the literal rule, is a type of statutory construction, which dictates that statutes are to be interpreted using the ordinary meaning of the language of the statute unless a statute explicitly defines some of its terms otherwise. In other words, the law is to...
- Purposive theory
Purposive 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...
- Stare decisis
Stare decisis is the legal principle by which judges are obliged to obey the precedents established by prior decisions.In the United States, which uses a common law system in its federal courts and most of its state courts, the Ninth...
- Statutory interpretation
Statutory interpretation is the process of interpreting and applying legislation. Some amount of interpretation is always necessary when case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in most cases, there is some ambiguity or vagueness in the...
- Strict constructionism
Strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. In the United States the phrase is also commonly used more loosely as a generic term for conservatism among the judiciary.- Strict sense of the term :Strict...
- Textualism
Textualism 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...