Glossary of Judicial Philosophies
We frequently label politicians as a shorthand for describing their political philosophy: “liberal,” “conservative,” “libertarian,” “moderate,” and so on. More often than not, these labels oversimplify or even misrepresent a politician’s position—a “conservative” politician may be fiscally conservative but socially liberal, for example; or one person’s conception of “moderate” may be different than another’s, especially in different parts of the country. Sometimes an ideological label takes on a derogatory connotation—the word “liberal,” for example, has been used by many people to deride politicians over the past two decades, even though it means vastly different things to different people. Nevertheless, we continue to use these labels, both in communicating with each other and in classifying politicians in our own minds.
In the judicial world, people also use labels to describe a particular judicial philosophy: “activist,” “textualist,” “strict constuctionist,” for example. Just like with politicians, we use these labels as shorthand in order to classify the judges in our own minds and in order to communicate information about the judges to others. But labeling judicial philosophies is even more hazardous than labeling political philosophies, for two reasons. First, the general population might not have a complete understanding of the job that judges do—the intricacies of statutory interpretation and common law jurisprudence are complicated. Thus, any attempt to categorize and label different methods for deciding cases is likely to be overbroad and inaccurate. The second reason is that—possibly because it is so hard to define a “judicial philosophy” in simple terms—there is a tendency for the general population to correlate certain judicial philosophies to certain political philosophies: an “activist” judge, for example, is thought to be politically “liberal.” This implied correlation leads to an assumption that a judge who follows a certain judicial philosophy will usually conform to the “analogous” political ideology—and when a judge deviates from that ideology, he or she is criticized as being hypocritical.
In order to foster a greater understanding of what these various labels mean, we present the following glossary of judicial philosophies:
Activism: This term is perhaps the most controversial of all descriptors, probably because it is used to mean two related but very different things:
A. A philosophy which motivates a judge to disregard the law and issue a decision based on his or her own political or personal beliefs.
B. A philosophy in which a judge motivates a judge to overturn a precedent or strike down a statute or a regulation.
A judge who is an “activist” in the first sense is likely to be activist in the second sense—that is, in order to advance his or her own political or personal beliefs, a judge will probably have to ignore or overturn precedent and strike down statutes and regulations more often than a judge who is not “activist.” But a judge who overturns precedent or strikes down a statute or regulation is not necessarily an “activist” in the first sense. If a prior decision was clearly incorrect, or if a statute clearly violates the Constitution, then issuing a ruling to that effect is not the act of an “activist” judge.
Another misconception about activism is that it is correlated to a liberal political philosophy. Historically, this is untrue, regardless of which definition of the term is used. In the early 1900’s, a politically conservative Supreme Court struck down many socially progressive laws (for example, laws which protected union members and laws which prescribed minimum wages) by claiming that the laws violated a controversial “liberty to contract” that was allegedly protected in the Constitution. Yet when confronted with more politically palatable legislation that infringed on the “liberty to contract” to the same degree, the court upheld the law—thus demonstrating that its earlier decisions were based on the judge’s own views about what constituted wise economic policy, rather than a neutral legal analysis of what was permitted by the Constitution.
A few decades later, the Court engaged in a second wave of “activism” by finding “new” substantive rights in the Constitution that struck down many state laws. Many of these cases involved criminal procedure, such as the famous Miranda case that required police to warn criminal suspects of their rights before interrogation, but others included Brown v. Board of Education, which ended segregation in the public schools, and New York Times v. Sullivan, which gave media broad protection from libel when reporting on public figures. This wave of “judicial activism,” of course, favored the liberal political agenda. Unlike the first wave of judicial activism, many of these decisions still stand, and some—like Brown are revered as truly landmark decisions.
Some would argue that we are now in a “third wave” of judicial activism, as a more conservative Court strikes down federal laws that allegedly infringe on state’s rights and seeks to roll back the “liberal activism” of the 1960s and 1970s Court. There is little doubt that the current court is “activist” in the second sense of the word—it is certainly overruling (or limiting) prior precedent and is not reticent about striking down federal laws. But whether it is “activist” in the first sense of the word—whether a majority of the Court is ignoring or downplaying the law in order to pursue a political agenda—depends on one’s own interpretation of these decisions.
On the state level, the most contentious issue involving “judicial activism” is probably the issue of gay marriage—a number of states have held that restricting marriage to a man and a woman violates their own state Constitution (a ruling which cannot be appealed to the United States Supreme Court). Whether they are “correctly” interpreting their own Constitutions or whether they are “creating” rights in their Constitutions in order to impose their own political point of view is, again, open to debate.
Judicial Restraint: This term is used to mean the opposed of activism. Since Judicial Activism has two separate definitions, judicial restraint could also mean one of two different things:
A. A judicial philosophy in which a judge decides cases based only on the dictates of the law, without allowing his or her personal or political preferences influence the decision.
B. A judicial philosophy which encourages a judge to adhere to precedent—that is, not to overturn prior precedents by his or her court—and encourages a judge to defer to the legislative or executive branch and show reluctance to strike down statutes or regulations.
As with judicial activism, these two definitions are related but not exactly identical. It is possible to exercise judicial restraint in the first sense—that is, to decide cases based only on what the law requires regardless of the judge’s political preferences—but not exercise restraint in the second sense, and overrule precedent or strike down statutes or regulation in order to conform to a superseding law, such as a Constitutional provision.
Living Constitution: This judicial philosophy is actually merely a doctrine of Constitutional interpretation—that is, it only applies to interpretations of a Constitution, not a precedent, regulation, or statute. The philosophy holds that the Constitution was intentionally written using broad language and concepts which should evolve as society evolves. Thus, terms such as “cruel and unusual punishment,” “due process,” or “reasonable search and seizure” should not be interpreted based on how the individuals who wrote them or first applied them believed (as originalism states) but instead as how modern society would interpret them.
The theory of a living Constitution is appealing to some judges because it allows the fundamental values of the Constitution to keep pace with modern sensibilities. The world of the late 18th or early 19th centuries, when the federal and many state constitutions were drafted, is very different from today’s world, in terms of everyday life, technology, politics, economics, and morality—so applying the meaning of terms and concepts from two centuries ago is problematic. Opponents of the living Constitution argue that it allows judges to substitute their own political or personal preferences into the Constitution under the guise of applying the morals of “contemporary society,” and thus leads to the worst kind of judicial activism.
Originalism: A philosophy which encourages a judge to interpret a regulation, statute, or constitutional provision by referring to the original intent or original meaning of the rule at the time it was created. An originalist, like any judge, will always begin a legal interpretation by considering the words of the text, but in order to interpret ambiguous words or in order to apply the law to a novel fact pattern, the originalist will consider why the rule was passed or how the rule was originally applied. Some originalists will look to the intent of the legislature or drafter of the rule (known as using the “original intent”). Others will look to the meaning of the original rule—that is, they will try to determine what the ordinary, reasonable interpretation of the text would have been at the time the rule was first promulgated.
Originalism is frequently contrasted with the theory of a living constitution, which is its opposite.
Strict Constructionism: A philosophy in which a judge will interpret a regulation, statute, or constitutional provision relying only upon the words in the text and use no other evidence (such as legislative intent or policy considerations). There are very few judges who are truly strict constructionists, since it would be nearly impossible to interpret most laws based only on the words in the laws themselves—there are too many ambiguous words and too many different ways that a law can be applied to a given fact pattern. Most judges who are thought of as “strict constructionists” are actually textualists or originalists.
The term is almost always mis-used by politicians and the media in general. Conservative politicians often say they will appoint “strict constructionists,” but they really mean they will appoint judges who will exercise judicial restraint (a term that in itself has two possible meanings) or they will appoint judges or follow a doctrine of textualism or originalism.
Textualism: A philosophy in which a judge will interpret a regulation, statute, or constitutional provision relying only upon a reasonable interpretation of the text and use no other evidence (such as legislative intent or policy considerations). The term differs from strict constructionism in that a textualist will interpret a rule to give it its common sense meaning, and will examine the statutory structure and apply a reasonableness analysis to interpret ambiguous words or provisions.