Judicial Review and Policy Making

The Impact of Court Decisions

Court decisions can have a very strong influence on current and future laws, policies, and practices.

Learning Objectives

Identify the impacts of court decisions on current policies and practices.

Key Takeaways

Key Points

  • Court decisions can have an important impact on policy, law, and legislative or executive action; different courts can also have an influence on each other.
  • In the U.S. legal systems, a precedent is a principle or rule established in a previous legal court decision that is either binding on, or persuasive for, a court or other tribunal when deciding subsequent cases with similar issues or facts.
  • Common law precedent is a third kind of law, on equal footing with statutory law (statutes and codes enacted by legislative bodies), and regulatory law (regulations promulgated by executive branch agencies).
  • Stare decisis is a legal principle by which judges are obliged to respect the precedent established by prior court decisions.
  • Vertical precedent is the application of the doctrine of stare decisis from a superior court to an inferior court; horizontal precedent, on the other hand, is the application of the doctrine across courts of similar or coordinate level.

Key Terms

  • privatization: the government outsourcing of services or functions to private firms

Privatization is government outsourcing of services or functions to private firms. These services often include, revenue collection, law enforcement and prison management.

In competitive industries with well-informed consumers, privatization consistently improves efficiency. The more competitive the industry, the greater the improvement in output, profitability and efficiency. Such efficiency gains mean a one-off increase in GDP, but improved incentives to innovate and reduce costs also tend to raise the rate of economic growth. Although typically there are many costs associated with these efficiency gains, many economists argue that these can be dealt with by appropriate government support through redistribution and perhaps retraining.

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Capitol Hill: Capitol Hill, where bills become laws.

Studies show that private market factors can more efficiently deliver many goods or service than governments due to free market competition. Over time this tends to lead to lower prices, improved quality, more choices, less corruption, less red tape and/or quicker delivery. Many proponents do not argue that everything should be privatized. Market failures and natural monopolies could be problematic.

Opponents of certain privatizations believe that certain public goods and services should remain primarily in the hands of government in order to ensure that everyone in society has access to them. There is a positive externality when the government provides society at large with public goods and services such as defense and disease control. Some national constitutions in effect define their governments’ core businesses as being the provision of such things as justice, tranquility, defense and general welfare. These governments’ direct provision of security, stability and safety is intended to be done for the common good with a long-term perspective. As for natural monopolies, opponents of privatization claim that they aren’t subject to fair competition and are better administrated by the state. Likewise, private goods and services should remain in the hands of the private sector.

The Power of Judicial Review

Judicial review is the doctrine where legislative and executive actions are subject to review by the judiciary.

Learning Objectives

Explain the significance of judicial review in the history of the Supreme Court

Key Takeaways

Key Points

  • Judicial review is an example of the separation of powers in a modern governmental system.
  • Common law judges are seen as sources of law, capable of creating new legal rules and rejecting legal rules that are no longer valid. In the civil law tradition, judges are seen as those who apply the law, with no power to create or destroy legal rules.
  • In the United States, judicial review is considered a key check on the powers of the other two branches of government by the judiciary.

Key Terms

  • doctrine: A belief or tenet, especially about philosophical or theological matters.

Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority. Judicial review is an example of the separation of powers in a modern governmental system. This principle is interpreted differently in different jurisdictions, so the procedure and scope of judicial review differs from state to state.

Judicial review can be understood in the context of two distinct—but parallel—legal systems, civil law and common law, and also by two distinct theories on democracy and how a government should be set up, legislative supremacy and separation of powers. Common law judges are seen as sources of law, capable of creating new legal rules and rejecting legal rules that are no longer valid. In the civil law tradition, judges are seen as those who apply the law, with no power to create or destroy legal rules.

The separation of powers is another theory about how a democratic society’s government should be organized. First introduced by French philosopher Charles de Secondat, Baron de Montesquieu, separation of powers was later institutionalized in the United States by the Supreme Court ruling in Marbury v. Madison. It is based on the idea that no branch of government should be more powerful than any other and that each branch of government should have a check on the powers of the other branches of government, thus creating a balance of power among all branches of government. The key to this idea is checks and balances. In the United States, judicial review is considered a key check on the powers of the other two branches of government by the judiciary.

Judicial Activism and Restraint

Judicial activism is based on personal/political considerations and judicial restraint encourages judges to limit their power.

Learning Objectives

Compare and contrast judicial activist and judicial-restrained judges

Key Takeaways

Key Points

  • Judicial activism describes judicial rulings suspected of being based on personal or political considerations rather than on existing law.
  • Judicial restraint 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, though what counts as obviously unconstitutional is itself a matter of some debate.
  • Detractors of judicial activism argue that it usurps the power of elected branches of government or appointed agencies, damaging the rule of law and democracy. Defenders say that in many cases it is a legitimate form of judicial review and that interpretations of the law must change with the times.

Key Terms

  • statutory: Of, relating to, enacted or regulated by a statute.
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Felix Frankfurter: Former Associate Justice Felix Frankfurter, one of the first major advocates to advocate deferring to the legislature.

Judicial activism describes judicial rulings suspected of being based on personal or political considerations rather than on existing law. The definition of judicial activism and which specific decisions are activist, is a controversial political issue. The phrase is generally traced back to a comment by Thomas Jefferson, referring to the despotic behavior of Federalist federal judges, in particular, John Marshall. The question of judicial activism is closely related to constitutional interpretation, statutory construction and separation of powers.

Detractors of judicial activism argue that it usurps the power of elected branches of government or appointed agencies, damaging the rule of law and democracy. Defenders say that in many cases it is a legitimate form of judicial review and that interpretations of the law must change with the times.

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, though what counts as obviously unconstitutional is itself a matter of some debate.

In deciding questions of constitutional law, judicially-restrained jurists go to great lengths to defer to the legislature. Former Associate Justice Oliver Holmes Jr. is considered to be one of the first major advocates of the philosophy. Former Associate Justice Felix Frankfurter, a Democrat appointed by Franklin Roosevelt, is generally seen as the model of judicial restraint.

Judicially-restrained judges respect stare decisis, the principle of upholding established precedent handed down by past judges. When Chief Justice Rehnquist overturned some of the precedents of the Warren Court, Time magazine said he was not following the theory of judicial restraint. However, Rehnquist was also acknowledged as a more conservative advocate of the philosophy.

The Supreme Court as Policy Makers

The Constitution does not grant the Supreme Court the power of judicial review but the power to overturn laws and executive actions.

Learning Objectives

Discuss the constitutional powers and authority of the Supreme Court and its role in developing policies

Key Takeaways

Key Points

  • The Supreme Court first established its power to declare laws unconstitutional in Marbury v. Madison (1803), consummating the system of checks and balances, allowing judges to have the last word on allocation of authority among the three branches of the federal government.
  • The Supreme Court cannot directly enforce its rulings, but it relies on respect for the Constitution and for the law for adherence to its judgments.
  • Through its power of judicial review, the Supreme Court has defined the scope and nature of the powers and separation between the legislative and executive branches of the federal government.

Key Terms

  • impeachment: the act of impeaching a public official, either elected or appointed, before a tribunal charged with determining the facts of the matter.

A policy is described as a principle or rule to guide decisions and achieve rational outcomes. The policy cycle is a tool used for the analyzing of the development of a policy item. A standardizes version includes agenda setting, policy formulation, adoption, implementation and evaluation.

The Constitution does not explicitly grant the Supreme Court the power of judicial review but the power of the Court to overturn laws and executive actions it deems unlawful or unconstitutional is well-established. Many of the Founding Fathers accepted the notion of judicial review. The Supreme Court first established its power to declare laws unconstitutional in Marbury v. Madison (1803), consummating the system of checks and balances. This power allows judges to have the last word on allocation of authority among the three branches of the federal government, which grants them the ability to set bounds to their own authority, as well as to their immunity from outside checks and balances.

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Supreme Court: The Supreme Court holds the power to overturn laws and executive actions they deem unlawful or unconstitutional.

The Supreme Court cannot directly enforce its rulings, but it relies on respect for the Constitution and for the law for adherence to its judgments. One notable instance came in 1832, when the state of Georgia ignored the Supreme Court’s decision in Worcester v. Georgia. Some state governments in the south also resisted the desegregation of public schools after the 1954 judgment Brown v. Board of Education. More recently, many feared that President Nixon would refuse to comply with the Court’s order in United States v. Nixon (1974) to surrender the Watergate tapes. Nixon ultimately complied with the Supreme Court’s ruling.

Some argue that the Supreme Court is the most separated and least checked of all branches of government. Justices are not required to stand for election by virtue of their tenure during good behavior and their pay may not be diminished while they hold their position. Though subject to the process of impeachment, only one Justice has ever been impeached and no Supreme Court Justice has been removed from office. Supreme Court decisions have been purposefully overridden by constitutional amendment in only four instances: the Eleventh Amendment overturned Chisholm v. Georgia (1793), the13th and 14th Amendments in effect overturned Dred Scott v. Standford (1857), the 16th Amendment reversed Pollock v. Farmers’ Loan and Trust Co. (1895) and the 16th Amendment overturned some portions of Oregon v. Mitchell (1970). When the Court rules on matters involving the interpretation of laws rather than of the Constitution, simple legislative action can reverse the decisions. The Supreme Court is not immune from political and institutional restraints: lower federal courts and state courts sometimes resist doctrinal innovations, as do law enforcement officials.

On the other hand, through its power of judicial review, the Supreme Court has defined the scope and nature of the powers and separation between the legislative and executive branches of the federal government. The Court’s decisions can also impose limitations on the scope of Executive authority, as in Humphrey’s Executor v. United States (1935), the Steel Seizure Case (1952) and United States v. Nixon (1974).

Two Judicial Revolutions: The Rehnquist Court and the Roberts Court

The Rehnquist Court favored federalism and social liberalism, while the Roberts Court was considered more conservative.

Learning Objectives

Compare and contrast the Rehnquist Court and the Roberts Court

Key Takeaways

Key Points

  • Rehnquist favored a conception of federalism that emphasized the Tenth Amendment ‘s reservation of powers to the states. Under this view of federalism, the Supreme Court, for the first time since the 1930s, struck down an Act of Congress as exceeding federal power under the Commerce Clause.
  • In 1999, Rehnquist became the second Chief Justice to preside over a presidential impeachment trial, during the proceedings against President Bill Clinton.
  • One of the Court’s major developments involved reinforcing and extending the doctrine of sovereign immunity, which limits the ability of Congress to subject non-consenting states to lawsuits by individual citizens seeking money damages.
  • The Roberts Court refers to the Supreme Court of the United States since 2005, under the leadership of Chief Justice John G. Roberts. It is generally considered more conservative than the preceding Rehnquist Court, as a result of the retirement of moderate Justice Sandra Day O’Connor.
  • In its first five years, the Roberts court has issued major rulings on gun control. affirmative action, campaign finance regulation, abortion, capital punishment and criminal sentencing.

Key Terms

  • certiorari: A grant of the right of an appeal to be heard by an appellate court where that court has discretion to choose which appeals it will hear.
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William Rehnquist: Former Chief Justice William Rehnquist

William Rehnquist served as an Associate Justice on the Supreme Court of the United States, and later as the 16th Chief Justice of the United States. When Chief Justice Warren Burger retired in 1986, President Ronald Reagan nominated Rehnquist to fill the position. The Senate confirmed his appointment by a 65-33 vote and he assumed office on September 26, 1986.

In 1999, Rehnquist became the second Chief Justice to preside over a presidential impeachment trial, during the proceedings against President Bill Clinton. In 2000, Rehnquist wrote a concurring opinion in Bush v. Gore, the case that effectively ended the presidential election controversy in Florida, that the Equal Protection Clause barred a standard-less manual recount of the votes as ordered by the Florida Supreme Court.Considered a conservative, Rehnquist favored a conception of federalism that emphasized the Tenth Amendment’s reservation of powers to the states. Under this view of federalism, the Supreme Court, for the first time since the 1930s, struck down an Act of Congress as exceeding federal power under the Commerce Clause. He won over his fellow justices with his easygoing, humorous and unpretentious personality. Rehnquist also tightened up the justices’ conferences, keeping them from going too long or off track. He also successfully lobbied Congress in 1988 to give the Court control of its own docket, cutting back mandatory appeals an certiorari grants in general.

The Rehnquist Court’s congruence and proportionality standard made it easier to revive older precedents preventing Congress from going too far in enforcing equal protection of the laws. One of the Court’s major developments involved reinforcing and extending the doctrine of sovereign immunity, which limits the ability of Congress to subject non-consenting states to lawsuits by individual citizens seeking money damages.

Rehnquist presided as Chief Justice for nearly 19 years, making him the fourth-longest-serving Chief Justice after John Marshall, Roger Taney and Melville Fuller. He is the eighth longest-serving justice in Supreme Court history.

The Roberts Court refers to the Supreme Court of the United States since 2005, under the leadership of Chief Justice John G. Roberts. It is generally considered more conservative than the preceding Rehnquist Court, as a result of the retirement of moderate Justice Sandra Day O’Connor and the subsequent confirmation of the more conservative Justice Samuel Alito in her place.

After the death of Chief Justice Rehnquist, Roberts was nominated by President George W. Bush, who had previously nominated him to replace Sandra Day O’Connor. The Senate confirmed his nomination by a vote of 78-22. Roberts took the Constitutional oath of office, administered by senior Associate Justice John Paul Stevens at the White House, on September 29, 2005, almost immediately after his confirmation. On October 3, he took the judicial oath provided for by the Judiciary Act of 1789, prior to the first oral arguments of the 2005 term.

In its first five years, the Roberts court issued major rulings on gun control. affirmative action, campaign finance regulation, abortion, capital punishment and criminal sentencing.