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  • Craig: Hello, I'm Craig, and this is Crash Course Government and Politics, and today

  • we're gonna look at the Supreme Court from a different angle. We're gonna try to get

  • inside the justices' heads. Bwahahahahah!

  • Not literally, obviously, but we're gonna look at the factors that influence the way

  • they decide cases, other than the structure of the court system. So we're pretty far away

  • from the Constitution here and straddling the nebulous world of government, politics, and dare I say it, history.

  • [Theme Music]

  • Justices, especially on the Supreme Court, are supposed to be independent, but that doesn't

  • mean they make their decisions in a vacuum. They make them in an office, just like most people who work.

  • More importantly, they're influenced by a number of factors other than the case that's in front of them.

  • In terms of their role in government, justices might be influenced by Congress, because they

  • know that, unless the case involves the Constitution directly, congress can respond to a decision

  • overturning a law by passing a new law.

  • Once justices have been selected and confirmed, the President has minimal effect on judicial

  • decisions although he's somewhat influential on lower court justices who might one day

  • want to be on the Supreme Court. So you lower court justices, you be nice to that prezzy, OK?

  • Knowing that the President get to make the call on who gets to be a justice with the

  • help of the Senate of course, federal judges are more likely to make rulings that are more

  • likely to get them considered for the court.

  • Since the president only serves eight years maximum, though, it's hard for judges to know

  • who will be President when a vacancy in the court opens up, so the President isn't much

  • of a factor. Much more influential on justices is history, which works in two ways. First,

  • the principles of precedent and stare decisis constrain the possible decisions that justices

  • can make. Second, and more historical in the sense we think of history, justices know that

  • their decisions will be studied by generations of historians, and lawyers, and YouTube viewers,

  • and they are very well aware that some decisions, like Dred Scott, Brown V. Board, and Roe V.

  • Wade, can have an enormous impact on American history. And now the historical stakes are

  • even higher, because they know that their decisions will be talked about by a bearded

  • balding man on YouTube forever.

  • Judges may behave strategically and consider the way that their decisions will be implemented

  • by the executive branch or how a part of one decision will lay the foundation for a change

  • in the law in a decision later. Although it isn't supposed to matter, judges are influenced

  • by their political ideology, whether they're liberal or conservative or possibly by their

  • party affiliation, whether they're Democrats or Republicans or the Tea Party or the Green

  • Party or they're party animals, like Ruth Bader Ginsberg. Party affiliation and political

  • ideology are certainly important in the selection process -- it's pretty rare that a Democratic

  • president selects a Republican judge to be on the Supreme Court, especially these days,

  • although sometimes it happens that a justice turns out to be more or less conservative

  • or liberal than the president thought. Former Justice David Souter is a good example of

  • a judge appointed by a Republican who turned out to be much more to the liking of Democrats.

  • Finally, and perhaps most important, judges are influenced by their philosophical orientation,

  • by this I mean their judicial philosophy, not whether they're existentialists or logical

  • positivists. While I'm sure that there are many judicial philosophies out there, the

  • two which matter most, at least in terms of the way commentators talk about the Court,

  • are judicial activism and judicial restraint. Let's not show any restraint in actively going

  • to the Thought Bubble right now.

  • Judicial activism is the idea that the Court should act as an instrument of policy, making

  • it much more like the other two branches of government. Judicial activists tend to look

  • beyond the text of the Constitution and statutes, instead choose to consider the broader social

  • implications of the decisions they render. Activist judges are supposedly eager to overturn

  • Congressional legislation to further their policy goals, and they're often accused by

  • opponents of making law from the bench. Judicial activism is often associated with liberal

  • or Democratic justices, but it's not that simple.

  • Judicial restraint, as the name implies, is the idea that judges should pay close attention

  • to the precedent when they make their decisions, and that any changes that they make to the

  • law should be incremental. They are the judicial tortoises to the activist hares. Judicial

  • restraint is sometimes confused with originalism, the idea that any new law should be interpreted

  • in the light of the Constitution as it was written in 1787. Basically a 'What Would James

  • Madison Do?' orientation. Although advocates of judicial restraint often rely on the Constitution's

  • text, it's later precedent that restrains them more than the Constitution does. Judicial

  • restraint is often equated with conservatism, which makes sense, as conservatives generally

  • are against change, but as with judicial activism, the equivalence isn't perfect.

  • The two different philosophies are each associated with different historical moments. The high

  • tide of judicial activism occurred between the 50s and the mid-70s, when Earl Warren

  • and Warren Burger were the Chief Justices. During this time, the Court made important

  • decisions: expanding civil rights, voting rights, the right to privacy, and the rights

  • of people accused of crimes. From the 1980s through the early 2000s, the Court led by

  • William Rehnquist was known for its judicial restraint, dialing back civil rights, affirmative

  • action, and desegregation programs and attempting to rein in the power of the national government

  • and devolve some power back to the states. Thanks, Thought Bubble.

  • So a minute ago, I said that activism wasn't the same as political liberalism and restraint

  • wasn't the same as conservatism. Let me try to explain what I meant. Mainly, the issue

  • here is the claim that conservative justices practice judicial restraint. If you've been

  • paying attention to the Court recently, you'll see that this isn't always the case. The current

  • Supreme Court led by Chief Justice John Roberts has five generally conservative justices and

  • four that are usually considered liberal. The conservatives were all appointed by Republican

  • presidents and the liberals by Democratic presidents. These conservative justices have

  • been pretty activist in some of their decisions, however. For example, the Citizens United

  • case broke with previous precedent and allowed much more campaign fundraising than prior

  • court decisions had, which is something that political conservatives wanted. Recently,

  • the Roberts court invalidated parts of the Voting Rights Act, which had been passed originally

  • in 1965 and renewed by Congress in 2010. Here's why this is problematic: one of the core tenets

  • of judicial restraint is that courts are not supposed to overturn the decisions of a democratically-elected

  • Congress in order to make policy, unless Congress has passed laws that are clearly unconstitutional.

  • It can work the other way, too. While the Warren court was generally pretty activist

  • and stocked with politically liberal justices, Justice Breyer, who's usually considered politically

  • liberal and was appointed by a Democrat, believes that judicial change should be incremental

  • and doesn't want to make decisions that will cause sweeping changes. So he's exercising judicial restraint.

  • So, I'm going to stop here, otherwise we're going to fall into the trap of talking politics,

  • and I don't want to do that with him around, 'cause he's always trying to sue American

  • Eagle Apparel for violating his right of publicity, and I think it's fine, they've had that trademark

  • for quite some time! I'm sorry, but you don't really have those rights, you're not human

  • or even a real eagle. So let me just remind you of a few things in attempt to be as clear as possible.

  • First, judicial philosophy is not the same thing as political ideology, even though the

  • media, especially the television media, likes to say they are. Judicial philosophy refers

  • to activism and restraint, while political ideology refers to liberalism or conservatism.

  • It's possible to be both politically conservative and judicially activist, and vice versa.

  • Second, there's lots of factors that influence the way judges make decisions, and the judges

  • rarely let you know which one is at work. Whenever you look at a Court decision, which

  • we're gonna do soon, think about which factors went into that decision, especially in the

  • way that Congress and the Executive will react to it. Remember, despite what you may hear,

  • all decisions are highly political, except the decision to end this video. Thanks for watching; see you next week.

  • Crash Course Government and Politics is produced in association with PBS Digital Studios. Support

  • for Crash Course US Government comes from Voqal. Voqal supports non-profits that use

  • technology and media to advance social equity. Learn more about their mission and initiatives

  • at voqal.org. Crash Course was made with the help of all of these judicial activists. Thanks for watching.

Craig: Hello, I'm Craig, and this is Crash Course Government and Politics, and today

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Judicial Decisions: Crash Course Government and Politics #22

  • 29 3
    Jill に公開 2021 年 06 月 19 日
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