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Identifying Judicial Activism

Stefanie A. Lindquist and Frank B. Cross

in Measuring Judicial Activism

To assess judicial activism empirically, this chapter looks more explicitly at the potential for dimensions of judicial activism to be identified and measured. Because the exercise of judicial review ... More

To assess judicial activism empirically, this chapter looks more explicitly at the potential for dimensions of judicial activism to be identified and measured. Because the exercise of judicial review is so important to the debate over activist judging, the chapter begins its analysis by identifying the justices' willingness to strike state and federal legislation as a critical element to the concept of judicial activism. It also suggests that invalidating the choices made by executive agencies also constitutes a dimension to judicial activism given the electoral connection to the President. In addition, institutional aggrandizement by the judiciary—by expanding access to the judiciary via doctrines of justiciability (standing, mootness and the like) and invalidating existing precedent—are also identified as dimensions to activist decision making. Finally, the chapter concludes, to distinguish activist from “principled” decision making, that these dimensions must be evaluated in light of the justices' willingness to vote in furtherance of their own ideologies. Thus, the chapter identifies two basic dimensions to judicial activism: institutional activism (reflecting the justices' willingness to vote to strike legislation, etc.) and ideological activism (reflecting their willingness to do so in accordance with their personal policy preferences). The chapter also identifies the data sources (the United States Supreme Court Judicial Database) for the project, and the empirical/statistical approach the book will employ.Less

Perspectives on Causes and Consequences

in Specializing the Courts

This chapter introduces the issues of the causes and consequences of judicial specialization. It first describes the potential effects of high levels of specialization along its two dimensions on the ... More

This chapter introduces the issues of the causes and consequences of judicial specialization. It first describes the potential effects of high levels of specialization along its two dimensions on the neutral virtues of quality, efficiency, and uniformity and on the substance of judicial policy. The chapter also discusses the motivations and processes that might bring about judicial specialization. The significance of judicial specialization rests primarily on the difference it makes for a court's outputs if that court has high levels of judge concentration or case concentration. The neutral virtues and the substance of judicial policy are not fully independent of each other. The impact of specialization on the effect of interested groups begins with the selection of judges. The potential for a court to pursue a policy-oriented mission underlines the importance of judicial specialization. Specialization might increase budgetary resources for the courts.Less

“Approving Legislation for the People, Preserving Liberties—Almost Rewriting Laws”: The Politics of Creating the Roosevelt Court

in Reconsidering Roosevelt on Race: How the Presidency Paved the Road to Brown

This chapter discusses the construction of a reformulated federal judiciary by examining the creation of the Roosevelt Supreme Court, the second of the administration's three-pillared judicial ... More

This chapter discusses the construction of a reformulated federal judiciary by examining the creation of the Roosevelt Supreme Court, the second of the administration's three-pillared judicial policy. It is shown that Roosevelt's nominees were generally committed to rights-centered liberalism and legal realism. The politics surrounding each of Roosevelt's nine appointments to the Court is also examined. The connection between Roosevelt's attempt to purge (mostly southern) conservatives in the 1938 Democratic Party primaries and his choices for the Court are explored. The manner in which southern filibusters against civil rights legislation, especially the NAACP-supported antilynching bill, contributed to Roosevelt administration efforts to advance the federal protection of rights in the courts is also considered.Less

: Habeas for the Twenty-First Century

in Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ

This chapter discusses the habeas policy for the twenty-first century and beyond. Habeas must always remain a flexible judicial remedy, adaptable to enforce the rule of law and protect individual ... More

This chapter discusses the habeas policy for the twenty-first century and beyond. Habeas must always remain a flexible judicial remedy, adaptable to enforce the rule of law and protect individual liberty whenever either detention practices or detention law shifts significantly. Moreover, its scope must never become a one-way ratchet that expands but never contracts. The Supreme Court's habeas decisions have provided guideposts for fair detention and judicial review policies. The latest empirical research showed that the lower federal courts currently serve exactly the core functions in their habeas review of capital cases. Popular perceptions of habeas corpus have for too long been distorted by the immense volume of meritless petitions filed by state and federal prisoners serving noncapital sentences. Both historically and functionally, the bigger picture of habeas goes well beyond these cases.Less

Judicial Policy in a Transforming Constitution

Hugh Corder

in Judges, Transition, and Human Rights

This chapter examines the role of judicial policy in constitutional transformation. It analyses two recent cases in the Constitutional Court, the Bato Star Fishing Ltd. v Minister of Environmental ... More

This chapter examines the role of judicial policy in constitutional transformation. It analyses two recent cases in the Constitutional Court, the Bato Star Fishing Ltd. v Minister of Environmental Affairs and Tourism and Others and President of the Republic of South Africa and Another v Modderklip Boerdery (Pty.) Ltd. (Agri SA and Others, Amici Curiae). Both cases raise highly significant questions about the role of the law in in shifting the socioeconomic balance, yet from very distinct perspectives.Less

Economic Issues: Private Litigation

in Specializing the Courts

This chapter describes a different category of courts that deals with economic issues that primarily occur between private parties. This disparate set of courts includes the Federal Circuit in its ... More

This chapter describes a different category of courts that deals with economic issues that primarily occur between private parties. This disparate set of courts includes the Federal Circuit in its patent jurisdiction, the Delaware courts in the field of corporate governance, federal bankruptcy courts, and state business courts. Specialized courts play major roles in three fields of private economic litigation: Patents, corporate governance, and bankruptcy. The Federal Circuit has a high level of case concentration in patent law and a moderate level of judge concentration. Delaware's standing as the leading home for large corporations gives automatic importance to its courts as interpreters of corporation law. The role of Delaware's courts in corporation law should be put in the context of state policy as a whole. These courts underline the potential for specialization to shape the content of judicial policy.Less

Chinese Courts

Congyan Cai

in The Rise of China and International Law: Taking Chinese Exceptionalism Seriously

This chapter explores the context, dynamics, methods, structure of the application of international law in Chinese courts and new roles that Chinese courts seek to play in the context of the rise of ... More

This chapter explores the context, dynamics, methods, structure of the application of international law in Chinese courts and new roles that Chinese courts seek to play in the context of the rise of China. This chapter first discusses the implications of national courts on international rule of law and national rule of law by applying international law. It then examines the factors that are relevant to the application of international law by Chinese courts. More importantly, this chapter finds how Chinese courts, in order to enhance the rise of China, structurally apply international law, thereby showing the long-term judicial policy of China toward the application of international law. This chapter inform how national courts are organized and organize themselves to coordinate with other governmental organs to pursue public policies.Less

Criminal Cases

in Specializing the Courts

This chapter explores the specialization in criminal law in the states, highlighting the courts that hear specific subsets of criminal cases. Separating criminal and civil cases allows judges who ... More

This chapter explores the specialization in criminal law in the states, highlighting the courts that hear specific subsets of criminal cases. Separating criminal and civil cases allows judges who have more seniority or influence with a presiding judge to avoid criminal cases. Old-style drug courts and the assignment of death penalty cases to certain Philadelphia judges make it clear that judicial specialization can have important influences on the substance of judicial policy, even when it is undertaken for policy-neutral reasons. The general idea of problem-solving courts has diffused from one type of criminal case to others. Like drug courts, mental health courts are inherently limited in their effect. State courts have a good deal of judicial specialization in criminal cases as a whole. Juvenile courts, women's courts, and domestic relations courts reflected the thinking of Progressives about how to address social problems.Less

International Law in Chinese Courts during the Rise of China

Congyan Cai

in Comparative International Law

This chapter highlights a different set of elements that become manifest in assessing the rapid overall rise in references to, and application of, international law by courts in China in recent ... More

This chapter highlights a different set of elements that become manifest in assessing the rapid overall rise in references to, and application of, international law by courts in China in recent years. This chapter seeks to theorize Chinese judicial policy toward international law, without discussing this policy’s legitimacy. The core argument is that China’s 30-year pursuit of great power status has been a significant causal and explanatory factor in the particularities of approach, methodology, and structure in judicial application of international law by Chinese courts. Section II presents and discusses the Chinese legal system’s pathways for giving effect to international law. Section III reviews Chinese courts’ sensitivity to differences among the various categories of relationships governed by specific international rules, and explores their connection with, and implications for, the economic and geopolitical rise of China.Less

The Commitment Continues: Truman, Eisenhower, and the Civil Rights Decisions

in Reconsidering Roosevelt on Race: How the Presidency Paved the Road to Brown

This chapter analyzes the activities of the Truman and Eisenhower administrations with regard to the expansion of African American rights. The importance of both domestic and international influences ... More

This chapter analyzes the activities of the Truman and Eisenhower administrations with regard to the expansion of African American rights. The importance of both domestic and international influences on the civil rights positions of these two administrations, with a special focus on their judicial policies, is evaluated. Due to the importance of the ideological confrontation of the cold war in pressuring these administrations to advocate an end to Plessy, a scholarly debate was organized. Also, the precedent set by the Roosevelt administration affected the participation of the Truman and Eisenhower Justice Departments in NAACP-sponsored school segregation cases before the Supreme Court was considered.Less

Judges, Transition, and Human Rights: Essays in Memory of Stephen Livingstone

John Morison, Kieran McEvoys, and Gordon Anthony

in Judges, Transition, and Human Rights

This chapter explains the coverage of this book, which is about judges and human rights in societies in transition. This book presents chapters on the separation of powers in a global context, ... More

This chapter explains the coverage of this book, which is about judges and human rights in societies in transition. This book presents chapters on the separation of powers in a global context, defence owed under the separation of powers, the scope of right to a fair trial guarantee in non-criminal cases, and the role of the European Court of Human Rights as a constitutional court. It also explores the judicial policy in a transforming constitution, the battle of transitional justice in Iraq and the impact of the Human Rights Act in Northern Ireland.Less

Juvenile Criminal Record Confidentiality

James B. Jacobs

in Choosing the Future for American Juvenile Justice

This chapter focuses on juvenile criminal records—an often neglected topic in the history of American juvenile justice. The history of juvenile justice has always been court-centric, paying much less ... More

This chapter focuses on juvenile criminal records—an often neglected topic in the history of American juvenile justice. The history of juvenile justice has always been court-centric, paying much less attention to police and corrections. This is especially short sighted when it comes to juvenile records policy, because police juvenile record policies and practices significantly affect the effectiveness of judicial policies. If the police freely disclose information about juveniles' criminal history, the court's confidentiality policy is substantially undermined. In most states, the police keep a complete file of juvenile police contacts, and have complete discretion to disclose this information. Police departments often comply with requests for information about juveniles from the FBI and other law enforcement agencies, the Armed Forces, and social service agencies.Less