The Judiciary: Judicial Philosophy, Politics, and Policy

Although judges do not run on a platform, as do elected officials, they nevertheless hold political beliefs that influence their decisions. People strongly debate the role of the courts in politics and the role that personal beliefs and political philosophy should play.

Judicial Philosophy

Judicial philosophy is the way in which a judge understands and interprets the law. Laws are universal, but they must be applied to particular cases with unique circumstances. To do this, judges interpret the law, determining its meaning and sometimes the intent of those who wrote it.

The main types of contrasting judicial philosophies include judicial activism versus judicial restraint, loose constructionism versus strict constructionism, and living document versus original intent.

Some judges develop a philosophy of activism, using the bench to enact social and political change. Other judges practice a philosophy of restraint, believing that judges must interpret the law strictly rather than seek to make new laws. And all judges, regardless of their philosophies, develop their own methods of reading the Constitution. Some judicial philosophies tend to coincide with certain political views. Most strict constructionists, for example, are also advocates of judicial restraint, but not all. Similarly, many advocates of judicial restraint also follow the doctrine of original intent. These views, however, do not always overlap. As a result, judicial philosophies are not the same as political ideologies.

We explore these philosophies in more detail in the following tables.

JUDICIAL ACTIVISM VERSUS JUDICIAL RESTRAINT
	Judicial Activism	Judicial Restraint
Beliefs	Courts should overturn bad laws and create new policies	Courts must interpret the law, not legislate new policies
Example	Warren Court (1953–1969)	Rehnquist Court (1986–2005)
Key Decisions	Advanced civil rights and the rights of the accused	Limits on expansion of federal power
Politics	Tend to be liberal	Tend to be conservative

LOOSE CONSTRUCTIONISM VERSUS STRICT CONSTRUCTIONISM
	Loose Constructionism	Strict Constructionism
Beliefs	Courts should read the Constitution expansively and should not limit themselves to what is explicitly stated	Courts should not reinterpret the Constitution
Example	Warren Court (1953–1969)	Rehnquist Court (1986–2005)
Key Decisions	Exclusionary rule, right to a government-funded attorney for the poor	Restrictions on abortion, eliminating federal rules for state governments
Politics	Tend to be liberal	Tend to be conservative

LIVING DOCUMENT VERSUS ORIGINAL INTENT
	Living Document	Original Intent
Beliefs	The Constitution must grow and adapt to new circumstances.	Courts should interpret the Constitution as the framers intended.
Example	Warren Court (1953–1969)	Rehnquist Court (1986–2005)
Key Decisions	Expansion of use of interstate commerce clause	Restrictions on privacy rights
Politics	Tend to be liberal	Tend to be conservative

Constructionism in Action

Privacy is not explicitly mentioned in the Constitution, so strict constructionists of the Constitution believe that the only privacy rights Americans have are those specifically outlined in the Constitution, such as protection against illegal searches. On the one hand, according to the strict constructionists, there is no general right to privacy. Loose constructionists, on the other hand, assert that a general right to privacy can be inferred from the rights that were explicitly listed by the framers. Privacy rights have taken center stage in many court cases, including Roe v. Wade (1973).

Checks on the Courts

The legislative and executive branches check the power of the judiciary branch in several ways. The main way of limiting the courts’ power lies with judicial implementation, the process by which a court’s decision is enforced. The executive branch must enforce court decisions, but if the president or governor disagrees with a ruling, he or she sometimes ignores it or only partially enforces it. Legislatures can also limit the courts through the power of the purse. If Congress refuses to appropriate funds for implementing a Supreme Court decision, that decision will not be enforced. Congress and state legislatures also have the power to amend the Constitution, which they can do to counter a court ruling.

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