Consider: What is an “activist” judge?
The Last Word: Assignment #23 for Monday; Collaborize by Fri 3pm
Judicial Philosophy and DecisionMaking
Judicial Philosophy
 There are generally two ways that judges can look at the Constitution
when making a decision:
 Strict construction (aka, judicial restraint, or originalism)
 This is the belief that laws should not be struck down by the court unless the text of the
Constitution specifically forbids them;
 Typically, a restraint position would not void a law unless the conflict with the
Constitution was explicit, or required little interpretation.
 Original intent – meanings of the Constitution can be clarified by examining Founder
intentions
 Activism (or judicial activism)
 Belief that the job of the court is to apply the Constitution to current circumstances, and
consider the political, legal, economic or religious circumstances of the day when
making decisions.
 Typically, an activist position would void laws by pointing to the “spirit” or values
embodied in the Constitution as applied to current circumstances
Creating Rights?
 An important point to remember is that court decisions really don’t give
people “rights” (even the Bill of Rights doesn’t do that per se), but rather
that they define the limits of government infringement.
 For example, although the result of Roe vs.Wade was effectively to guarantee a
woman’s right to an abortion in certain cases, the actual decision was to
strike down a law which restricted women from having an abortion.
 The language can do both at the same time, and we can talk of “creating
rights”, but all that has changed is our interpretation of the Constitution, not
the actual text…
 So the nullification of government infringement is the creation of a
“right”
 How might this “right” be taken away? 2 ways…
Public Opinion
 Can check the power of the courts
 Activist periods
 May consider public opinion when issuing
rulings
 Korematsu v. U.S. (1944)
 Public confidence in Court
 Has ebbed and flowed
9.5
http://www.c-span.org/video/?292678-1/originalintent-living-constitution-
Judicial Activism and Restraint
Video: Thinking Like a Political
Scientist
9.5
http://media.pearsoncmg.com/ph/hss/SSA_SHARED_MED
IA_1/polisci/presidency/Seg4_Judiciary_v2.html
Consider: Does the Court “create” rights?
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what you'd imagine something called "The Aromafork" would do. It stinks.
There's a little slot on the back for holding "diffusing papers" that you can drop an aromatic essence
onto; then, when you take a bite, you also get a whiff of fragrance. The starter kit comes with 21
different aromas, from chocolate to wasabi to truffle to mint.
The Last Word: Assignment #23 for Monday; Collaborize post by Fri 3pm,
reply by Monday before class.
Consider this:
 Does the commerce clause enable government to ban online gambling?
 Does the necessary and proper clause enable government to require
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people to buy health insurance, or pay a tax?
Does the right to determine a “uniform rule of naturalization” give the
federal gov sole control over immigration laws?
Does the 4th amendment prevent government from overhearing cell
phone transmissions?
Does the 4th amendment prevent government from intruding on your
right to have an abortion?
Does the 8th amendment prohibit government from using the death
penalty?
Does equal protection mean gays must be allowed to marry like hetero
couples?
Creating Rights?
 An important point to remember is that court decisions really don’t give
people “rights” (even the Bill of Rights doesn’t do that per se), but rather
that they define the limits of government infringement.
 For example, although the result of Roe vs.Wade was effectively to guarantee a
woman’s right to an abortion in certain cases, the actual decision was to
strike down a law which restricted women from having an abortion.
 The language can do both at the same time, and we can talk of “creating
rights”, but all that has changed is our interpretation of the Constitution, not
the actual text…
 So the nullification of government infringement is the creation of a
“right”
 How might this “right” be taken away? 2 ways…
Hollingsworth vs. Perry
 Although the Court ruled that the proponents of Prop 8 did not
have standing (thus did not rule on the merits of the case), we can
discern the nature of the decision on the merits by looking at the
district court decision (affirmed by the appeals court), which was
effectively upheld by the lack of a Supreme Court intervention.
 The district court had ruled that Prop 8 did violate the 14th
amendment to the Constitution.
 Would you consider this an activist or restraint position?