Limitations on
Judicial Power
1. Judicial restraint
A. Webster v. Reproductive Health Services (1989)
1. O’Connor (conc.)
a. If there is no need to decide a constitutional issue to resolve the issue then the Court will not do so.
b. The Court will not formulate a constitutional rule that is broader than necessary to address the issue.
c. Because all the provisions of the MO law properly before the court have been upheld judicial restraint dictates that Roe should not be reconsidered.
2. Scalia (conc.)
a. O’Connor is full of it.
b. Court upholds law on constitutional grounds not statutory or procedural grounds.
c. Using the broader than necessary rule in this case is perverse
i. Good cause exception
ii. Roe clearly broader than necessary
iii. Instead of avoiding confusion, current holding encourages it.
d. Under this logic a state would have to pass a law that it couldn’t in good conscious argue was consistent with Roe.
2. Institutional checks
A. Opinions
B. Juries
C. Other judges on appellate panels.
1. Craig v. Boren - See table page 332.
D. Hierarchical structure
1. Reversing lower court judges
2. Especially potent constraint on trial judges
a. Interlocutory review
3. Threat of review may constrain judges
4. Lower courts can try to get around appellate opinions
a. Distinguish on the facts
b. Remand
D. Hierarchical structure
1. Reversing lower court judges
2. Especially potent constraint on trial judges
a. Interlocutory review
3. Threat of review may constrain judges
4. Lower courts can try to get around appellate opinions
a. Distinguish on the facts
b. Remand
E. Segal, Songer and Cameron article
1. Three models of decision-making
a. Legal
b. Attitudinal
c. Hierarchical
2. Appeals court judges likely to be more constrained
a. Ambition
b. Decisions may be appealed
c. Lack of docket control
d. Bound by precedent
3. Principal-agent theory
a. Defines relationship between superior and subordinates that may be applied to courts.
b. Principals don’t always want to control subs
c. Determined by preferences of superiors and subs
4. Predictions of three models (Table 1, p. 337)
a. Legal: facts matter, doctrine matters, preferences do not
b. Attitudinal: facts matter, doctrine does not, preferences matter
c. Hierarchical: facts matter, doctrine matters, preferences matter
5. Results: test votes on circuit courts in search and seizure cases from 1961 – 1990.
a. Hierarchical model best statistical results.
3. Checks imposed by separation of powers
A. All policy flows from the workings of all branches not one acting alone
1. Especially true for judges because they do not have enforcement powers.
2. Courts depend on:
a. Legislative & executive
b. Public support
3. However, cannot give in too easily to other branches otherwise its function is meaningless.
B. Checks by the executive
1. Clashes between Marshall and Jefferson
a. Marbury v.
b. Trial off Aaron Burr for treason
2. Taney
a. Issued habeas corpus writ for Merryman
3. Andrew Jackson refused to enforce a
court ruling protecting native American treaty rights
from violation by
4. Eisenhower and Warren
5. Counsel for Nixon could not assure the justices that he would turn over the tapes if they so ordered.
6. President can use his office to overturn or marginalize judicial decisions by swaying and mobilizing public support against those opinions.
7. FDR – reorganizing the federal judiciary
8.
9. Yeltsin – closes the constitutional court
C. Checks by the legislature
1. When the executive and legislature work together their check on the judiciary can be potent.
a.
b. New Deal congress improved retirement benefits to try to lure conservative judges into retirement.
c. 1980 congress tried to remove funding for DOJ efforts to enforce busing decisions – Carter vetoed the bill.
2. Congress can, and frequently does, modify statutes to correct the Court’s misinterpretation of them.
3. Boerne v. City of Flores (1997)
4. Dickerson v. US (2000) – Miranda rights case
6. Do to courts curb their opinions to avoid enraging congress?
4. Checks from the states
A. Nullification
1. The KY resolutions written by
2.
3. Civil War ended nullification
4. However, states resisted desegregation
5. Fob James and school prayer
B. State judges can disguise their rulings in state law
1. 30000 a year – too many to review
2. State courts can impose stricter civil liberties requirements than those required by the SCT using their own constitutions.
a. San Antonio v. Rodriguez v. CA SCT case Serrano v. Priest on school financing.
5. Checks from the people
A. Elections
B. Public opinion
1. Kuklinsky article on support for marijuana legalization ballot initiatives and superior court judicial behavior.
a. As support grew sentencing fell.
C. Support for the institution even while disapproving of the decisions.
1. Legitimacy
2. Gibson, Caldeira and Baird
a. Awareness of courts varies from country to country (Table 1, 357).
b. Courts generally have high levels of support (46% - 69%)
c. Awareness not always connected to support.