380 CHAPTER 12|THE COURTS
policy to protect the environment and workers, support
national intervention in the states, and favor race-
conscious policies such as affi rmative action. Conser-
vative judges favor state regulation of private conduct
(especially on moral issues), support prosecutors over
defendants, tend to be pro-life on abortion, and support
the free market and property rights over the environment
and workers, states’ rights over national intervention,
and a color-blind policy on race. These are, of course, just
general tendencies. However, they do provide a strong
basis for explaining patterns of decisions, especially on
some types of cases.THE STRATEGIC MODEL
A strategic approach to understanding Supreme Court
decision making focuses on justices’ calculations about
the preferences of the other justices, the president, and Congress, the choices that
other justices are likely to make, and the institutional context within which they
operate. After all, justices do not operate alone: at a minimum they need the votes
of four of their colleagues if they want their position to prevail. Therefore, it makes
sense to focus on the strategic interactions that take place to build coalitions.
The median voter on the Court—the one in the middle when the justices are
arrayed from the most liberal to the most conservative—has an especially infl u-
ential role in the strategic model. For many years the median justice was Sandra
Day O’Connor; when Samuel Alito replaced her, Anthony Kennedy became the new
median (see Figure 12.4). The four conservatives to his right and the four liberals
to his left all wanted to attract his vote. When Justice Sotomayor replaced Justice
Souter and when Justice Kagan replaced Justice Stevens, Kennedy remained the
median voter on the Court. Research shows that at least one justice switches his or
her vote at some stage in the process (from the initial conference to oral arguments
to the fi nal vote) on at least half of the cases, so strategic bargaining appears to be
fairly common.^39 Our earlier discussion of opinion assignment and writing opinions
to attract the support of a specifi c justice is more evidence in support of the strategic
model.SEPARATION OF POWERS
Another political infl uence on justices’ decision making is their view of the place
of the Court with respect to the democratically elected institutions (Congress
and the president). Specifi cally, do they favor an activist or a restrained role for
the Court? Advocates of judicial restraint argue that judges should defer to
the elected branches and not strike down their laws or other actions. In contrast,
advocates of judicial activism argue that the Court must play an active role in
interpreting the Constitution to protect minority rights even if it means over-
turning the actions of the elected branches. Yet another approach says that these
normative arguments about how restraint or activism ought to work don’t really
matter because the Court usually follows public opinion and rarely plays a lead
role in promoting policy change.
Often, assessments of the Court’s role vary with the views of a specifi c line of
cases. A political conservative may favor “activist” decisions striking down envi-
ronmental laws or workplace regulations but oppose activist decisions that defendCHAPTER 5 CITED A SURVEY in which
most respondents were unable to
name any Supreme Court justices.
Just so you are not in danger of
falling into that category, as of fall
2012 the justices are (front row,
left to right) Clarence Thomas,
Antonin Scalia, John G. Roberts
Jr. (chief justice), Anthony M.
Kennedy, Ruth Bader Ginsburg,
(standing, left to right) Sonia
Sotomayor, Stephen Breyer,
Samuel Alito Jr., and Elena Kagan.
judicial restraint The idea that
the Supreme Court should defer to
the democratically elected execu-
tive and legislative branches of
government rather than contradict-
ing existing laws.
judicial activism The idea that
the Supreme Court should assert
its interpretation of the law even if it
overrules the elected executive and
legislative branches of government.