Decision making in the Supreme Court is a complex and multifaceted process, one that has been both analyzed and scrutinized by various scholars who sought to understand what actually fueled and motivated the choices made by Supreme Court justices. While decision making in the Supreme Court may seem like a basic aspect of Supreme Court processes, understanding why justices make the decisions they do is critical as their interpretation and enforcement of the law affects the hundreds of millions of citizens living in the United States. Among many, two theories are prominent for their evaluations on this process: the strategic theory as described by Lee Epstein and Jack Knight in "The Choices Justices Make," and the attitudinal theory by Jeffrey …show more content…
However, it is clear that the strategic theory prevails as a more convincing analysis of the behavior of Supreme Court justices, as it offers a more comprehensive understanding of decision-making by accounting for negotiation processes, institutional constraints, and strategic interactions than the attitudinal model. To understand why the strategic model is superior, it is essential to fully understand both theories and what they posit. Through the strategic theory, Epstein and Knight primarily argue that justices take into account not only their policy preferences but also interactions with other Justices and their own personal motivations. Epstein and Knight establish a deeper argument for their case by analyzing other potential motivations …show more content…
They state, “Justices, we argue, do not make their choices in isolation; they must and do pay some heed to the preferences of others and the actions they expect others to take” (Epstein & Knight 1998, p. 79). They make this case using four distinct elements: bargaining over policy, forward thinking, manipulating the agenda, and strategic opinion writing. Each of these aspects in the strategic theory is essential to how it is perceived: bargaining happens when judges are deciding whether or not to grant certiorari; forward thinking by expecting what decisions will be made by other judges; manipulating agenda occurs when the Chief Justice attempts to change the direction of the vote in their first speech (based on what they predict the vote to be); and finally that judges are sometimes swayed by the ideas presented by opinion writing of cases (Epstein & Knight 1998, pp. 65-99). A key strength in using these four building blocks for their theory is the acknowledgment that judges work in a complex system outside of their own thinking. They are not perfect entities who are free from influence, and will almost certainly act strategically. Epstein and Knight also highlight the importance of negotiations and compromises which occur in
In order to uphold the constitution, the Supreme Court must always aim to balance power among the branches of government and not overstep boundaries in exercising its own power. For this reason, the debate over handling political questions in the courtroom
The most contentious debate, however, concerns the legal principle of stare decisis. A Latin phrase, stare decisis means that judges should respect legal precedents by letting them stand instead of overturning them. It is important to note, however, that stare decisis is not found in the Constitution or the Bill or Rights; it is not the law of the land, but a “rule of thumb.” As Constitutional lawyer Robert McFarland points out, a number of Democratic congressmen have taken a sudden interest in this legal principle.
Thesis: “that judges, if they act rationally, must weigh all the alternatives” [see page 641]. Discussion- analysis of strategies and tactics. Assumptions made by the author; (1) historical role of a free society, has been deeply embedded in the American judiciary, (2) the
Oliphant analyzes the delicate balance of choosing political sides as compared to strictly upholding the law. Moreover, intertwined throughout the article, Oliphant records predications for the future of the court. For example, he outlines the potential implications if Romney were to have been elected in the 2012 November presidential race. Oliphant appeals to the reputation of Chief Justice Roberts ' historical appointment, voting history, forecasted impact on the bench, and implied influences by political parties and media, in order to establish Roberts ' credibility, despite a reputation inconsistent with his judiciary colleagues. Oliphants sinuous article, "Tipping the Scales" institutes that readers will arrive at one of two conclusions: Chief Justice Roberts 's decisions are unreliable or his actions are justified based on his
The articles written by Antonin Scalia and Stephen Breyer both contribute valid insight on how the Constitution should be interpreted. They, however, end up taking conflicting views on whether to adopt what is known as a living constitution or to bind the judiciary by the original meaning of the document. Throughout their works, the authors mention the importance of objectivity, judicial restraint and the historical context in which the Constitution was written under and whether or not it should apply to the United States today. Scalia argues in favor of the originalist approach, stating that he supports neither a strict nor a loose interpretation of the Constitution, but rather, a reasonable interpretation. Breyer sides with the cosequentialist ideals, claiming that active participation in collective power is paramount when it comes to evaluating the Constitution's place in American law.
Kastellec mainly focuses on three elements that are necessary in order to create this connection between the American public and The Supreme Court. The elements are listed as : knowledge, salience and attention. According to his finding, (1) citizens tend to know about court decisions that affect them or the issues they care about, (2) Americans know more about the court and pay ore attention to senators and how they vote according to their views, and (3) the senators do monitor and care about what public think because of their desire for reelection. Therefore, history proves that in order for senators to establish credibility in the
When one holds a prestigious position on the United States Supreme Court, they possess the opportunity to alternate the future of the country. However, that impulse should not be entertained in the majority of instances, as with the Dred Scott Case of 1857. Although that conflict should have dissolved after the subject dissolved, Chief Justice Roger Taney allegedly overextended his reach to determine the legality of another issue that had troubled the United States. In addition, the decision decided on the case itself negates the framework of the U.S. Constitution by infringing on an individual’s rights, regardless of who they might be. At the time of the Dred Scott Decision, the United States had become deadlocked over the controversy
Clarence also comes with opinion towards criminal defendants, in Van Orden V. Perry (2005), Thomas He called for a “return to the views of the Framers,” and argued for the adoption of physical coercion “as the touchstone for our Establishment Clause inquiry.” (FindLaw) However, with all of his opinion is sticks around the facts of his original approach, but it also shares the opinions of his other conservative bench members.
The United States Supreme Court is not transparent to the citizens in this country and they fail to publicly reveal reasoning’s to their decisions that they have made. The courts non-transparency make people wonder and uncomfortable for congress has to openly show how they voted one bills Jeffrey L. Fisher razes this type of questions in his article “The Supreme Court’s Secret Power” in The New York Times he raises concern for the Supreme Court and the justice; claiming that they have become too powerful and the people of this country deserve to see how each justice vote due we entrusted them I the position and we deserve to know if they are in good favor.
As time has progressed, the United States has continuously changed to meet the needs of its people. With each passing day, the country has slowly shifted away from what it had been initially as created by our forefathers. One reason for this transformation has been the nation’s judicial branch which has influenced the course of social and reform movements, as well as our ideologies and beliefs. The court rulings under Earl Warren are evidence that the judicial branch is a powerful force that can be a catalyst for change.
Alex Frost Values: Law & Society 9/23/2014 The Hollow Hope Introduction and Chapter 1 Gerald Rosenberg begins his book by posing the questions he will attempt to answer for the reader throughout the rest of the text: Under what conditions do courts produce political and social change? And how effective have the courts been in producing social change under such past decisions as Roe v. Wade and Brown v. Board of Education? He then works to define some of the principles and view points 'currently' held about the US Supreme court system.
The article Broken Bench explains the controversy over having “tiny courts” in New York State. The author, William Glaberson argues that the idea of justice within the jurisdiction of these tiny courts is unfairly decided among the justices in charge. Due to the lack of experience of these justices, it is difficult for fair justice to be dealt out. One of the major causes explained by the author for unfair justice is that the justices of the court are very inexperienced. For example, William Glaberson states, “Nearly three-quarters of the judges are not lawyers, and many — truck drivers, sewer workers or laborers — have scant grasp of the most basic legal principles.
Courts prove unsuccessful in achieving social change due to the constraints on the court’s power. Rosenburg’s assessment that courts are “an institution that is structurally challenged” demonstrates the Constrained Court view. In this view, the Court’s lack of judicial independence, inability to implement policies, and the limited nature of constitutional rights inhibit courts from producing real social reform. For activists to bring a claim to court, they must frame their goal as a right guaranteed by the constitution, leading to the courts hearing less cases (Rosenburg 11). The nature of the three branches also creates a system of checks and balances in which Congress or the executive branch can reverse a controversial decision, rendering the Court’s impact void.
When people think of a good judge they typically think of somebody who is fair, not bias and has some sort of experience. However, in today’s society, particularly in the United States, our judicial selection methods are not made to select judges on their ability to reason well and rule impartially (Carter and Burke, 6). On top of that, judges have no actual training before they become part of the judiciary. The only training they receive is in school when they are studying the law. Sometimes when they pursue an apprenticeship with a judge they also get a little bit more experience or insight into a judge’s job.
Judicial selection is an intriguing topic as there are multiple ways that judges take their seat on the bench. The United States Constitution spells out how federal judges are selected and leaves it up to the individual states to establish their means for selecting judges. In federal courts, judges are appointed and it varies between appointment and election for state courts. The purpose of this paper is to examine the differences between appointments and elections (as well as the multiple types of elections) and to give an opinion as to which is the better alternative. Federal judges are appointed by the President of the United States and are confirmed on the advice and consent of the United States Senate.