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Judicial Policymaking

They included complaints that the Court had frozen one political theory of representation into the Constitution; had failed to exercise judicial self-restraint; had decided questions appropriate only for legislative judgment; had violated the separation of powers doctrine; and had excluded numerous important considerations other than population. Supreme Court overruling decisions, in which it rejects its earlier positions for those later thought more fitting, often strikingly exemplify judicial policymaking.

In mapp v. It overruled wolf v.


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Some overruling decisions illustrate "the victory of dissent," when earlier dissenting Justices' views in time became the law. Thus in gideon v. Overruling betts v. According to the Court in barron v. But the Court, by its incorporation doctrine, has read nearly all the specific guarantees of the Bill of Rights into the due process clause of the Fourteenth Amendment which provides simply that no state shall "deprive any person of life, liberty, or property, without due process of law.

Selective incorporation has involved two kinds of Supreme Court policymaking: adopting the fundamental rights standard for guiding incorporation, and making the separate decisions incorporating particular Bill of Rights guarantees. Thus the Court, applying its open-textured rule, has given specific meaning to "the vague contours" of the due process clause. And it has become "a perpetual censor" over state actions, invalidating those that violate fundamental rights and liberties.

Clearly the Supreme Court is more than just a legal body: the Justices are also "rulers," sharing in the quintessentially political function of authoritatively allocating values for the American polity. Representing a coordinate branch of the national government, they address their mandates variously to lawyers, litigants, federal and state legislative, executive, and judicial officials, and to broader concerned "publics.

They do not expound a prolix or rigid legal code, but rather a living Constitution "intended to be adapted to the various crises of human affairs," as Chief Justice Marshall said in the McCulloch case. And the Justices employ essentially common law judicial techniques: they are inheritors indeed, but developers too—"weavers of the fabric of constitutional law"—as Chief Justice Hughes observed. The nature of the judicial process and the growth of the law are intertwined.

The Constitution, itself the product of great policy choices, is both the abiding Great Charter of the American polity and the continual focus of clashing philosophies of law and politics among which the Supreme Court must choose: "We are very quiet there," said Justice Holmes plaintively, "but it is the quiet of a storm center, as we all know. Cardozo, Benjamin N. New Haven , Conn.

Judicial Process

Levi, Edward H. Chicago: University of Chicago Press. Westport, Conn. Murphy, Walter F.

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JUDICIAL POLICYMAKING

Email address. Please enter a valid email address. Walmart Services. The court rescinded its previous decision, on the grounds that had it known the husband had started for home, it would not have granted a divorce. At the same time, it must be noted that the Barotse always had frequent divorce and that both the law and the decisions in this case are along the lines of traditional custom.

The logic of justice, morals, and social welfare combine with different traditions and customs to give varied judicial solutions to similar problems see Gluckman [] , pp. New York: Free Press. Manchester Univ. Rhodes-Livingstone Papers, No. Berkeley and Los Angeles : Univ. Oxford: Blackwell; Chicago: Aldine.

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Boston Univ. Press; London: Routledge. Norman: Univ. Yale University Publications in Anthropology, No. New Haven: Yale Univ. Oxford Univ. Chicago: Rand McNally.

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New York: Tudor. The administration of justice is a vital concern of any civilized community. Upon the proper functioning of the courts depends not only the enforcement of rights and liabilities, such as those between individuals, but also the protection of the individual against arbitrary government and the protection of society itself against the lawless individual. This article concentrates on judicial administration in the United States. This is not because similar problems do not exist elsewhere, but because their complexion varies so much from one nation to another that a comparative study would not be meaningful unless it took into account in each nation the structure of government, the character of the legal profession, and similar matters beyond the scope of any brief treatment.

However, a few references to comparative material are included in the bibliography. Despite its importance, little systematic study was given to judicial administration in the United States until recent years.

Judicial Procedures as Instruments of Political Control: Congress's Strategic Use of Citizen Suits

Lawyers, judges, and law professors were preoccupied with rules of law and with the procedure for translating them into con-crete decisions; they devoted relatively little attention to the over-all functioning of the judicial machinery. Political scientists also tended to avoid the subject, concentrating their concern upon the legislative and executive branches of government on the theory that the judicial branch was the special preserve of the legal profession.

This left the field to politicians, legislators, and a few others confronted with such specific tasks as selecting judges or establishing courts.

Understandably, their tendency was to approach each problem ad hoc, without seeing it in context and without much research into historical or comparative experience or into empirical data. Before long, public-spirited members of the bench and bar began to take notice. The chief vehicle for their early efforts at reform was the American Judicature Society, formed in In the s, the organized bar began to lend its strength to the growing movement, largely as the result of the enthusiasm of Arthur T.

Vanderbilt, who was destined to become not only president of the American Bar Association , the American Judicature Society, and the Institute of Judicial Administration, as well as chief justice of New Jersey , but also the acknowl-edged leader of the entire movement. In Congress passed a statute giving power to the United States Supreme Court to make rules of civil procedure for the federal district courts. This was an important step forward, not only be-cause federal procedure badly needed revising but also because of the precedent of vesting in the courts themselves the power to regulate their own methods of operation.

The new rules went into effect in , and have been amended from time to time. They have become a model for procedural reform in the various states. These standards were promulgated the following year as a guide for states in improving their court systems, and since then the state committees of the American Bar Association have worked for their implementation. The association has continued to enunciate goals for judicial administration and to work toward them, as is evidenced by its promulgation in of a model judicial article for state constitutions.

Many state and local bar associations have similarly contributed their efforts. The major problems in judicial administration center on 1 the personnel of the courts, 2 the institutional framework within which they operate, and 3 the procedures they follow.


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All of these problems are interrelated. Most judges in the United States are popularly elected, but the voters seldom have much interest in the contests or knowledge of the persons for whom they are voting, being content to leave such matters to political leaders.