American Politics Today - Essentials (3rd Ed)

SUPREME COURT DECISION MAKING| 379

ences include the justices’ preferences or ideologies, their stances on whether the

Court should take a restrained or activist role with respect to the elected branches,

and external factors such as public opinion and interest group involvement.

Legal Factors

The most basic legal factor is stare decisis, or precedent, which we discussed earlier.
Precedent does not determine the outcome of any given case, because every case has
a range of precedent 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.
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 various perspectives that emphasize the language of the Constitution all
fall under the heading of strict construction. The most basic of these is the lit-
eralist view of the Constitution. Literalists argue that justices need to look no
farther than the actual words of the Constitution. However, critics of strict con-
struction point out that the Constitution is silent on many important points (such
as a right to privacy) and could not have anticipated the changes in technology in
the twentieth and twenty-fi rst centuries that have many legal implications, such
as eavesdropping devices, cloning, and the Internet. Also, though the language of
the First Amendment is relatively clear when it comes to political speech, other
equally important words of the Constitution such as “necessary and proper,” “exec-
utive power,” “equal protection,” and “due process” are open-ended and vague.
Critics of the strict constructionist view are often described as supporting a
living Constitution perspective on the document (see Chapter 2). They argue
that strict construction can “make a nation the prisoner of its past, and reject any
constitutional development save constitutional amendment.”^38 If the justices
are bound to follow the literal words of the Constitution, with the meaning they
had when the document was written, we certainly could be legally frozen in time.
Amending the Constitution is a long and diffi cult process, so that option is not
always a viable way for the Constitution to refl ect changing norms and values.

Political Factors

The living Constitution perspective points to the second set of infl uences on

Supreme Court decision making: political factors. Indeed, many people are

uncomfortable thinking about the Court in political terms and prefer to think of

the image of “blind justice,” in which constitutional principles are fairly applied.

However, political infl uences are clearly evident in the Court—maybe less than in

Congress or the presidency, but they are certainly present. This means that the

courts respond to and shape politics in ways that often involve compromise, both

within the courts themselves and in the broader political system.

POLITICAL IDEOLOGY AND ATTITUDES

The most important political factor is the justice’s ideology or attitudes about

various issues. Liberal judges are strong defenders of individual civil liberties

(including defendants’ rights), tend to be prochoice on abortion, support regulatory

living Constitution A way of

interpreting the Constitution that

takes into account evolving national

attitudes and circumstances rather

than the text alone.

strict construction A way of

interpreting the Constitution based

on its language alone.