POLS 3302 Judicial Process and Behavior Final

The Systems Model

define compliance

the degree to which individuals, groups, or institutions conform behavior to the dictates of a court ruling

• the extent to which individuals or entities adhere to laws, regulations, or court decisions

inter partes

between parties

• binding only on the parties to the case

erga omnes

towards all

• binding on everyone

Mandatory vs. Anticipatory compliance

Mandatory: compliance that is enforced by law or court order

Anticipatory: proactive adherence to expected rulings or legal standards before they are formally mandated

T/F: Legal decisions are technically binding ONLY on the parties to the lawsuit

T

Non-compliance is the _____

Exception

What accounts for Compliance?

• Belief in Rule of Law

• Concern for Legal Liability

• Respect of Court’s Legitimacy

Belief in Rule of Law

in the long run, people have more to gain than lose by following court decisions

• even decisions that happen to be against them today

Concern for legal Liability

fear that you will be sued and have to engage in a costly legal defense

Respect for the Court’s Legitimacy

courts in the US enjoy high levels of “diffuse” or general support

• high respect for court’s authority to rule

T/F: Degree of Compliance (Low or High) does not correspond to Level of Diffuse Support (Low or High)

F

T/F: Erosion of confidence will lead to increased defiance to US Supreme Court’s decisions

T

Canon-Johnson Model of Judicial Impact

framework that explores how court rulings influence legislative and executive actions, as well as public perceptions of law and justice

Canon-Johnson Model helps understand _____ court decisions affect different “populations”

how

Interpreting population

composed of lower-court judges authoritatively able to tell others what judicial decisions mean

Implementing population

composed primarily of bureaucrats who execute judicial policies

Consumer population

composed of those directly affected by a judicial decision

• accrues advantages and disadvantages of judicial policies

Secondary population

composed of those indirectly affected by judicial decisions

• provides feedback to judicial decision makers

Decision maker

appellate court

Canon-Johnson flow chart

Did Roe v. Wade (1973) ease access to abortions?

SCOTUS decision may have slowed rate of change occurring in American society toward widespread access to safe and legal abortions

• unintended effect of actually increasing number of restrictions on abortion access

What are the two competing views of the role of courts in social change?

Dynamic and Constrained

Dynamic view

US Supreme Court is indeed capable of affecting widespread change (standard view)

Constrained view

US Supreme Court is unable to accomplish significant change alone due to existing constraints imposed upon the Court by the Constitution and other key actors (Rosenberg’s view)

Courts are political actors whose decision matter more (greater compliance and greater impact) when their support and legitimacy is ______.

highest

Effect of dual system of federal and state courts on law and policy

• double source of rights protection

  • litigants may use to expand on scope and level of protection for federal rights (e.g. right against unreasonable search & seizure)

  • progressive realization of many rights not protected by US Constitution and Bill of Rights (e.g. right to education)

Define New Judicial Federalism

state high courts look to their state’s constitution…

1. to protect new rights and liberties that federal courts have not recognized

2. to supplement the scope and level of rights recognized by federal courts

Causes of New Judicial Federalism

1. State Court Reforms

2. Federal retrenchment on Rights

3. Federal avoidance of some issues

4. Arrival of new cadre of state court judges (trained during Warren Court years)

Justice Brennan called the new judicial federalism…

the most important development in our constitutional jurisprudence

Doctrine foundations of the New Judicial Federalism

1. Doctrine of “independent and adequate state grounds”

2. Federal Floor, State Ceilings

Independent and adequate state grounds

SCOTUS would leave state court decisions alone so long as state high courts rest their decisions on “independent” and “adequate” state law grounds

Federal floor, state ceilings

federal minimums set by SCOTUS are the floor below which the states may not fall when interpreting analogous rights based on their state constitutions

• ceilings are how far or expensive the analogous state-based rights may be, determined by state high courts

Analogous rights

legal rights extended by analogy to over situations similar to, but not explicitly listed in, existing laws

Conceptual models of state high court decision making

• Lockstep

• Supplementary

• Primacy

Lockstep model

state courts turn first to federal law, then follow it without regard to the analogous right in the state constitution

Supplementary model

state courts turn first to federal law, and then look to the state constitution or bill of rights to see if there is an independent and adequate state grounds to provide supplementary protection for the right

Primacy model

state courts turn first to their own state constitutions and try to find the basis for rights protection over the federal minimum

Which models were adopted as a result of the New Judicial Federalism movement?

Primacy and Supplemental

examples of New Judicial Federalism

• right to education

• right to same-sex marriage

• Abbott v. Burke (1985 NJ)

• Claremont School District v. Gov. of NH (1997 NH)

Second-generation rights recognized by state courts

• right to shelter/housing

• right to counsel in civil cases (Civil Gideon)

Alexis de Tocqueville’s observations on Democracy in America

1. Courts are “political institutions” that function in a larger political environment

2. Judges are “political actors” motivated by extra-legal policy preferences

3. Both popular and elite groups attempt to advance their interests in courts

Empirical vs. Normative Question

What is the role of courts in America’s constitutional democracy? vs. What should the role of courts be?

Which institution is at the “eye of the storm”?

Supreme Court

What constitutional boundaries are maintained by courts?

• core principle of ‘separation of powers’ by ruling unconstitutional the actions of one branch that encroach upon the powers/functions of other branches

• core principle of ‘federalism’ by ruling unconstitutional the actions of national level government that violate state prerogatives and the actions of states that encroach upon national priorities

How do courts protect individual rights and liberty?

• strike the balance between ‘liberty and order’ and give meaning to the fundamental rights in the US Bill of Rights

• protect members of ‘insular and discreet’ minorities against majoritarian overreach

How do courts control the administrative state?

• review for legality the actions and decisions of the agencies that comprise the vast administrative state

• protect citizens’ ‘new property rights’ to the benefits they are entitled to as a result of the nation’s social welfare policies

Concrete meaning to the idea of rule of law

• courts interpret laws and regulations for legality (whether they are lawful)

• courts assure that rulers and ruled, powerful and weak, are treated the same

When do courts overcome the counter-majoritarian difficulty?

when they fulfill the maintaining/protection functions in a constitutional democracy

Counter-majoritarian difficulty

tension in democratic systems where unelected judges possess the power to invalidate laws enacted by elected representatives

Tipping function of courts

the idea that courts, at critical times in American history, cast their support in favor of the new political regime and help institute changes in American political, social, and economic life

What theory is the ‘tipping function’ based on?

Dahl’s regime-maintenance theory

Regime-maintenance theory

• SCOTUS cannot hold out for very long against the dominant governing coalitions of the day

• may exercise the power of judicial review and nullify an act or policy instituted by the dominant governing coalition, but eventually decides to uphold the new regime’s policy ideas

T/F: The Court’s weakness has always been its sensitivity to the changing political scene and its reluctance to stray too far from the main currents of public opinion.

F

Historical Supreme Court ‘Tips’

• Reconstruction & Industrialization

• New Deal and Great Society

• Present Judicial Minimalism

Pendulum Theory

various eras of the modern, post-WWII Supreme Court move gradually from left (Liberal) to center (moderate) to right (Conservative) gradually over time

Warren Court (1953-1969)

Liberal

Burger Court (1969-1986)

Moderate

Rehnquist Court (1986-2005)

Conservative

Roberts Court (2005-present)

Ultra Conservative

Obergefell v. Hodges (2015)

• landmark civil rights case

• SCOTUS ruled (504) that right of same-sex couples to marry is guaranteed by US Constitution

  • substantive due process in the personal sphere —- private autonomous choice

Dobbs v. Jackson Women’s Health Organization (2022)

• SCOTUS overturns constitutional basis for a woman’s right to abortion

  • substantive due process

Substantive due process

protects certain fundamental rights from government interference

• ensures that laws and governmental actions do not infringe on individual liberties without sufficient justification

Weak abusive judicial review

occurs when courts uphold legislation or executive action that significantly undermines the democratic minimum core

Strong abusive judicial review

occurs when courts themselves act to remove or undermine democratic protections

Paradox of Judicial Power

democratic and undemocratic at the same time

Dynamic view of the role of courts is often linked with ____ judicial activism

liberal

Common law

US, UK, Australia, and others

Civil law

Germany, France, Denmark, and others

Mixed legal system

Scotland, South Africa, Israel

What aspects of the US legal system technically make it a "mixed system”?

Maritime law and Louisiana are under civil law

Objectives of examining courts from a comparative perspective

1. Better understanding of the phenomenon

2. Advancing the field of comparative politics

3. Quest for Universal Theories

Pioneers of Comparative Judicial Studies

• Alexis de Tocqueville

• Sybille Bedford

• Martin Shapiro

Strong Form Judicial Review

US: courts have power to declare acts null and void

Weak Form Judicial Review

UK: courts can merely issue “declarations of incompatibility” and ask Parliament to change the law

Concrete Judicial Review

US: judicial power can only be exercised in real, live cases and controversies

Abstract Judicial Review

Germany: the Constitutional Court may review the constitutionality of acts before they go into effect

Diffuse Judicial Review

US: decentralized, all courts of record may exercise judicial review

Concentrated Judicial Review

South Africa: only the Constitutional Court may exercise judicial review

How did the idea of Judicial Review spread globally?

• First wave (pre 1945)

• Second wave (post 1945/WWII)

• Third wave (1960s/70s)

• Fourth wave (post 1989)

Political insurance theory

in times of political uncertainty, when no party can expect to hold onto power, all parties will prefer to limit the majority and therefore value minoritarian institutions such as judicial review

• judicial review is everyone’s ‘hedge’ against the prospect of future electoral loss

Hegemonic preservation theory

political elites, fearing the loss of power, will seek to preserve their hegemony by placing like-minded judges on the bench and empowering them to rule in their interest when they are out of power

Judicial Empowerment

explains how courts struggle to establish their legitimacy in newly established democracies

T/F: The use of judicial elections in almost every American state is a unique feature of American courts.

T

Unlike the US system, most judicial systems around the world use ____ _____ _____ to generate a list of nominees from which a President, Prime Minister, or some other politically accountable official chooses.

Judicial Appointments Commissions

In the US, judges are ____ who are recruited after distinguishing themselves in the practice of law.

generalists

The advantage of career judiciary systems is that the judges are the ______ of their generation.

the best and brightest

Problem with Career Judiciaries

judges are always auditioning for their next job or for a promotion to a higher court

• these judges may be reluctant to disappoint those who will decide their future with an adverse ruling

Judicialization of Politics

• the observed trend of the growth and expansion of judicial power in most democratic countries

• when controversial political issues are brought into the courts, all eyes focus on them

• more and more disputes in society which would normally have been redressed in Parliaments with ordinary legislation are now being brought to courts

Causes of the judicialization of politics

1. Explicit provisions for judicial review in the constitutions written after 1945

• the provisions are treated as “green lights” and encouraged courts to perform more prominent roles

2. Prevalence of “rights discourse” in the post-WWII era

• the drafting of new international treaties dealing with fundamental human rights elevated the concern for rights protection in nation states

3. Appointment of less deferential judges who were willing to perform these new more prominent and assertive roles

4. Desire to depoliticize some sensitive issues that legislators/elected officials are reluctant to take positions on

5. Instrumental or strategic use of courts by interest groups

6. Transnational borrowing and influence of international and supranational courts on national courts

T/F: Judicialization of politics is the result of judges playing more prominent roles in national politics

T