Judicial philosophy is the set of ideas and beliefs which dictate how Justices and judges of the United States federal courts may rule in many cases. There is a large academic debate over judicial philosophy, with some supporting the theory that justices can be categorized as judicial conservatives, moderates, or liberals based upon their interpretation of the United States Constitution, while others argue that justices cannot be evaluated using such a rigid division. Still, when nominations to important courts are made, a key issue is judicial philosophy. Beyond judicial and constitutional theory, many justices or judges may at times vote in line with either the popular "conservative" or "liberal" positions of the day. This can earn them a conservative or liberal label based on how often they align themselves with particular political positions, independent of their philosophical or theoretical views on the Constitution and/or the role of judges in general. As an example of how labels can be somewhat confusing when applied in reference to a judge, Erik Jaffe, a former clerk to Justice Clarence Thomas has pointed out that the term "conservative" is frequently misunderstood in public debate:
|“||You know, what people frequently misunderstand is, when someone says a judge is conservative, that means they're judicially conservative. It doesn't necessarily mean that they're politically conservative. And outcomes of a judicial conservative's approach to law often depend upon what statutes and what laws are being passed. If you have a [politically] liberal Congress passing liberal laws, a [judicially] conservative court could easily uphold those.||”|
The conservative judicial philosophy is marked by the belief that judges should not make policy decisions properly left by the text of the U.S. Constitution to the executive and legislative branches of government. Many judicial conservatives adhere to the idea of originalism, a method of legal interpretation which states that the original intent and/or meaning of the Constitution was fixed by the Founding Fathers of the United States and cannot be changed except by the amendment process. They believe that, through the process of judicial review, certain legal rights or restrictions have been taken by modern judges far beyond what was intended by the Founding Fathers. Many judicial conservatives also believe that foreign law and precedent should not be a factor in U.S. legal matters.
Politically, a conservative judicial philosophy can in addition be associated with Conservatism, a defense of established values. As a result, many judicial conservatives believe that traditional moral values are important in legal interpretation, and therefore tend to be pro-life and more lenient with matters concerning the separation of church and state. Judicial conservatives are almost always nominated by Republicans.
Prominent Judicial Conservatives on the Supreme Court include:
Prominent Judicial Conservatives on the Courts of Appeals include:
The liberal judicial philosophy is marked by the belief that the U.S. Constitution is a living document which through the process of judicial review is open to new evaluation and modernization, that foreign law and precedent should be a factor in U.S. legal matters, and that certain rights or restrictions should be expanded. Politically, a liberal judicial philosophy can be associated with Progressivism, a desire for social reform. Due to their general support for strong protection of individual liberties, judicial liberals tend to be pro-choice and more restrictive in matters concerning the separation of church and state. Although certain Republican nominated justices have turned out to be judicial liberals, judicial liberals are generally nominated by Democrats.
Prominent Judicial Liberals on the Supreme Court include:
Prominent Judicial Liberals on the Court of Appeals include:
A moderate judicial philosophy is not as easily defined as judicially conservative and liberal philosophies are. It is usually composed of a balance between particular conservative and liberal beliefs. Frequently, judicial moderates are pegged as such because they will vote in a conservative manner on some issues, but vote in a liberal manner on others. This can make a judicial moderate the swing vote in certain cases depending on which legal issue is being decided. On the other hand, some judicial moderates are pegged as such simply because they will reverse their own prior decisions.
On the appellate level, some jurists are known as judicial moderates because they concentrate on evaluating the law based on wording and past legal precedent (stare decisis) rather than upon a consideration of outside factors such as religious beliefs or public opinion. Supreme Court justices, however, are less likely to be defined as moderates for the same reason because there is not the same mandate for them to follow stare decisis. As members of the highest court in the land, they can vote to overturn legal precedents and do not have to follow stare decisis if they find such action warranted.
In the case of judicial nominees with no prior judicial experience, some are called moderates because they lack a distinctive past with which to evaluate their future performance as jurists.
Prominent Judicial Moderates include: