Supreme Court decision making 515of the Court recognize that both legal and political factors are important in explaining
judicial decision making, but some stake out a view more strongly on one side or the
other. Some scholars argue, for example, that all Court behavior is political and that
the use of legal factors is just a smoke screen for hiding personal preferences. The fact
that there are differences of opinion as to which factors are most important can often
make empirical arguments—those that describe the way decisions are made—evolve
into normative arguments—those about the way that justices should behave. These
different perspectives about how justices make decisions may also lead to arguments
about the proper role of the Court within our political system, which we will explore in
the next section.Legal Factors
Legal factors embody the image we cited at the beginning of the chapter of Lady Justice
neutrally applying the law while fairly balancing various interests. While this ideal
image is incomplete, legal factors do independently influence judicial decision making
on a broad range of cases.Precedent The most basic legal factor is precedent, discussed earlier. Precedent
does not determine the outcome of any given case, because every case has a range of
precedents that can serve to justify a justice’s decision. The “easy” cases, in which
settled law makes the outcome obvious, are less likely to be heard by the Court because
of the justices’ desire to focus on the more controversial areas of unsettled law or cases
in which there is conflict between lower courts’ decisions. However, in some areas of
the law—such as free speech, the death penalty, and search and seizure—precedent is
an important explanation for how the justices decide a case.The Language of the Constitution The Constitution is the obvious starting
point for any Supreme Court case that involves a Constitutional right.^61 However,
there are various perspectives on exactly how, and to what degree, the language of
the Constitution can and should influence judicial decision making today.
People in one camp argue that the language used in the Constitution is the
most important guiding factor. Their perspectives fall under the heading of
strict construction. The most basic of these is the literalist view of the Constitution.
Sometimes this view is called a textualist position because it sees the text of the
document as determining the outcome of any given case. Literalists argue that justices
need to look no further than the actual words of the Constitution.
Justice Hugo Black was one of the most famous advocates of the literalist position.
When the First Amendment says that “Congress shall make no law... abridging
the freedom of speech,” that literally means no law. Justice Black said, “My view is,
without deviation, without exception, without any ifs, buts, or whereases, that freedom
of speech means that government shall not do anything to people... either for the
views they have or the views they express or the words they speak or write.”^62 While
that may be clear enough with regard to political speech, how about pornography,
Internet speech, or symbolic speech, such as burning an American flag or wearing an
armband to protest the Vietnam War? A literal interpretation of the Constitution does
not necessarily help determine whether these forms of speech should be restricted.
(Indeed, Black was one of the two dissenters in a case that upheld students’ right to
wear armbands as a form of symbolic speech. Black believed that school officials
should be allowed to decide whether a symbolic protest would be too disruptive in the
classroom and argued that only spoken and written speech should be afforded thestrict construction
A way of interpreting the Constitution
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