Judicial Philosophies

Judicial Philosophies

Originalism

Description:
Constitution plays a similar role to an anchor, stopping society from being tossed around after every wave of new opinion. They see judicial review as having enough flexibility to deal with changes to society. But, strongly oppose constantly updating the constitution because of changing circumstances. They believe 9 elected officials should only provide explanation and meaning of the constitution, not to overrule what people decided on in the 18^th century. They accomplish this by establishing what the relevant part of the constitution was meant to mean at the time and make a decision based on its understanding, which ensures judicial review is not based on personal opinion (like politicians would have to). Originalists believe that their reading of the Constitution is not up to alternative view and so are more ready than majoritarians to overturn legislation. They do not allow for recognition of any rights not explicitly mentioned in the constitution.


The key court cases and judge:

Antonin Scalia – committed to recovering a ‘lost Constitution’ that has been, according to him, distorted out of all recognition.

District of Columbia v. Heller (2008) – Case was about laws governing the private ownership of guns in Washington D.C. which had some of the strictest laws, making it difficult to get a licenses and people had to have their firearms disassembled at home. The case argued it was unconstitutional under 2^nd Amendment, Scalia examined two phrases “right of people to keep and bear arms shall not be infringed” & “a well regulated militia”. Scalia used dictionaries from the 18^th century and concluded that ‘well regulated militia’ meant ‘everyone’ & that ‘keep and bear arms’ meant the right to have an operating weapons. And thus, Washington D.C (+other states) gun laws violated the 2^nd amendment as they barred individuals from keeping a gun in operative condition.

Criticism:
Because of how originalists treat the Constitution as being a sacred document not to be tampered with, critics often referred to originalism as judicial fundamentalism because of its similarity to the ways in which religious fundamentalists treat sacred texts. In a democracy, judges should play a strict judicial role and so, should be acting as a check on the elected branch’s use of their powers. Thomas Jefferson made it clear that he expected the Constitution to be updated by subsequent generations. Ironically, originalism is not faithful to the thinking of the Founding Fathers. Founding Fathers would have been aware that many phrases would change in meaning over time, e.g. what was considered ‘cruel and unusual punishment’ (8^th amendment). Reason some Founding Fathers disagreed with adding the Bill of Rights was because they believed “some fools” will think only those rights apply to people.

Judicial Restraint (majoritarianism)

Description:
Policy decisions should be made by elected representatives of the people. Courts should not get involved with laws passed by democratically elected legislatures unless its very evident the Constitution has been violated (nor the executives). Harvard law professor James Bradley Theyer (1893) developed this. Judges should only overrule the elected branches in exceptional circumstances – when there is no doubt that the terms of the Constitution have been violated. Judges who follow this view have a tendency to show a preference for ‘stare decisis’ (leaving things as they are, respecting precedent decisions). They rule only the legal aspects of cases, completely disregarding wider political implications if possible. 

The key court cases and judge:
Ayotte v. Planned Parenthood (2006) – court case dealing with an issue concerning whether a state legislature could pass a law requiring parental notification if a girl wanted an abortion. People widely believed the Supreme Court would review its previous rulings on abortion but they instead decided unanimously to ‘limit the solution to the problem’ and not to ‘revisit our abortion precedents.’

Criticism:
If courts only overturn policies that are very clearly in breach of the Constitution, then many laws that can reasonably be interpreted will be left untouched, as was seen by Plessy v. Ferguson (1896). Critics argue that judicial restraint will almost always permit tyranny of the majority, leaving untouched policies that are an expression of prejudice/bigotry but are not deemed ‘exceptional’ enough to step in. The Constitution remains static as society evolves because social change is difficult to achieve as the courts are leaving such changes into the hands of the legislature who may fear a backlash from voters.