Judicial Philosophy

-- this lesson is about simplicity vs nuance – will show you three models of understanding the court and its decisions

-- the sup. court needs to explain its decisions so lower courts can follow its logic

(egs. O’connor rejects ban on partial-birth because it doesn’t make exception for rape or incest victims – everyone now works of assumption that if it does its OK)

-- so we apply interpretive frameworks to explain what the court and the justices are doing and why – there are three we are going to examine today


Conservative-liberal dichotomy (SLIDE 1)

-- Those appointed by liberal presidents tend to hand down “liberal” decisions and vice versa

-- Justices tend to vote in blocks with Thomas, Scalia, and Rehnquist as conservatives. Not yet known if Alito and Roberts will vote consistently conservative

Stevens, Souter, Breyer, Ginsberg as liberals – 

 Kennedy considered a swing vote but tends to vote conservative



- limits rights of the accused

            (Arizona v. Fulminate – some coerced confessions OK)

- expands property rights

(Lucas v S. Carolina Coastal Council – state restrictions on land development constitute a seizure of property under the 5th amendment)

- limits federal power when it conflicts with state power

            (US v. Lopez – use of commerce clause overly broad in Gun Free Schools Act)

- limits on abortion rights




- expand rights of the accused

            (1966 – warren court - Miranda v. Arizona – defendants must be told their rights)

- expand abortion rights and privacy rights

            (1973 – Burger court – Roe v. Wade – abortion rights established)

- expand federal protection for minorities

            (1954 – Warren court - Brown v. Board)



But does this pattern always hold up ?

NO – in Kyollo v. United States (2001) – Scalia (one of the most “conservative” justices actually expanded criminal rights

National Treasury Employees Union v Von Raab (1989) – Scalia joins Stevens (one of the most “liberal” justices ) write a dissent objecting to expanded drug screening of federal employees

Reno v. ACLU (1997) – entire court strikes down the Communications Decency Act

Variety of decisions involving flag burning




So . . . . the next step of sophistication is (SLIDE 2)

Judicial restraint            and                   Judicial activism

Strict interpretation of the text loose interpretation of the text

Guided by intentions of founders            Constitution changes with time

“Conservative”                         “Liberal”


This helps explain the conflict in Roe v. Wade or the courts consistent rulings protecting flag burning



- Still doesn’t explain why the court struck down the Communications Decency Act

- Or why Scalia jumps ship from time to time


So we move to judicial philosophy

-3) Distribute the “Judicial Philosophy” handout and summarize its contents.

4) Break students into groups and hand out the “Judicial excerpts” sheet. Have students identify verbally which philosophy is present in which excerpt. Have the groups share their answers in front of the class.

5) (if time is available) Have students review Virginia v. Black and Lockyer v. Andrade and then discuss (SLIDE 3)

-- what philosophies might be appropriate for those cases?

 What information might the students need in order to use those philosophies?

Have the groups share their opinions in front of the class.

6) End with a discussion of the strengths and weaknesses of each approach and which philosophies would be considered “judicial review” and which would be considered “judicial restraint.”




-- The conservative/liberal, -- quick, general, acknowledges that presidents select people whose decisions they most likely agree with– Too simplistic, doesn’t answer why and doesn’t help explain some decisions

-- The Judicial restraint/judicial activism – more sophisticated, helps answer why, helps explain some decisions – still doesn’t explain all decisions, still tied to conservative/liberal in our discourse

-- Judicial philosophy – most sophisticated, answers why, explains why some justices jump ship – Too complicated to use to characterize whole court, few judges consistently use only one philosophy, not easy to summarize and boil down

-- times when all of them may be used

            - letter to editor – liberal/conservative

            - column – restraint/activism

            - law journal, lecture, dinner party - philosophy