Limitations on Judicial Power

Heather Jones

Professor Crawford

Lit Review

April 28, 2015

Limitations On Judicial Power

        Some people are under the impression that judges are able to do whatever they like and decide cases however they choose. Judges actually have three models by which they go by when deciding cases. There is more than one model that is useful to judges when it comes to making decisions on cases that are brought into court. The three models that are helpful to judges are the attitudinal model, the legal model, and the strategic model. According to the attitudinal model, a judge’s decision of a case is based on their own preference. The legal model states that a judge decides a case depending on precedent. Lastly, the strategic model states that a judge’s decision is constructed on strategy.  All three of these models are important in the process of decision making, but there is not one model that is superior to the others. Although judges may be primarily motivated by their policy preferences, their pursuit of those preferences is often constrained by institutional roles and norms both internal and external to the federal judicial system that require judges to act strategically to translate those preferences into decision outcomes. In addition to the three models there are internal checks, institutional checks, political checks by executives, legislative restrictions, checks from the states, and checks from the people.

        The attitudinal model of judicial decision making states that a judge’s behavior can be predicted largely by a judge’s policy attitudes. It perceives judges of the court as motivated by policy goals and unconstrained by the law. Judges decide cases according to ideological preference rather than by the meaning or intention of legal texts or by precedent.

        Looking at the three models, the strategic model best defines how a judge’s perspective influences their decision of a case. This model acknowledges that judges seek to achieve policy goals and that judges are subject to certain constraints I doing so. Since they cannot act simply according to preference, they must act strategically to achieve their goals given the constraints. Before the Craig v. Boren case there were two standards of review. One was rational basis which is a rational way to discuss a legitimate case in question. The other was strict scrutiny which is very difficult test to meet. It is basically a dead statute, but litigants have profound interest in statutes that are applied because it helps determine which one is use in order to win. Boren had a preferred outcome of strict scrutiny being applied so he drafted an Opinion that said justices are standing and they would meet in the middle when deciding the case. The strategic model does not argue that the personal policy preferences are irrelevant, but it does constrain preferences.  It also says that everyone has a vote and preference but it is not up to only one person.

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