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The Motives of Judicial Avoidance: The Influence of Role Orientation in the Supreme Court's Creation of Constitutional Doctrine |
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Abstract:
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This paper seeks to illustrate an important manifestation of the Supreme Court's institutional perspective in its decision-making. Specifically, it aims to show how the role orientation of the justices, shaped by their socialization in the legal profession and reinforced by the expectations of various salient audiences, can affect the constitutional doctrine the Court creates. My hypothesis is that the justices will at times defy both their ideological preferences and what precedent seems to require in order to avoid creating constitutional rules that conflict with their conceptions of the proper judicial role. That is, they are motivated to avoid crafting doctrine that forces future courts to make judgments that, in their minds, lack the sort of objective, legal standards characteristic of judicial, rather than legislative, decision-making. |
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court (153), state (98), justic (92), role (85), judici (80), tax (79), decis (71), u.s (51), constitut (49), legal (49), id (48), judg (48), v (46), law (40), moorman (39), incom (36), case (35), make (34), orient (32), polit (31), avoid (31), |
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Association:
Name: WESTERN POLITICAL SCIENCE ASSOCIATION URL: http://www.csus.edu/ORG/WPSA/
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Citation:
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MLA Citation:
| Joondeph, Bradley. "The Motives of Judicial Avoidance: The Influence of Role Orientation in the Supreme Court's Creation of Constitutional Doctrine" Paper presented at the annual meeting of the WESTERN POLITICAL SCIENCE ASSOCIATION, Manchester Hyatt, San Diego, California, Mar 20, 2008 <Not Available>. 2009-05-23 <http://www.allacademic.com/meta/p238023_index.html> |
APA Citation:
| Joondeph, B. W. , 2008-03-20 "The Motives of Judicial Avoidance: The Influence of Role Orientation in the Supreme Court's Creation of Constitutional Doctrine" Paper presented at the annual meeting of the WESTERN POLITICAL SCIENCE ASSOCIATION, Manchester Hyatt, San Diego, California Online <PDF>. 2009-05-23 from http://www.allacademic.com/meta/p238023_index.html |
Publication Type: Conference Paper/Unpublished Manuscript Abstract: This paper seeks to illustrate an important manifestation of the Supreme Court's institutional perspective in its decision-making. Specifically, it aims to show how the role orientation of the justices, shaped by their socialization in the legal profession and reinforced by the expectations of various salient audiences, can affect the constitutional doctrine the Court creates. My hypothesis is that the justices will at times defy both their ideological preferences and what precedent seems to require in order to avoid creating constitutional rules that conflict with their conceptions of the proper judicial role. That is, they are motivated to avoid crafting doctrine that forces future courts to make judgments that, in their minds, lack the sort of objective, legal standards characteristic of judicial, rather than legislative, decision-making. |
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PDF |
| Page count: |
47 |
| Word count: |
1198 |
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| The Motives of Judicial Avoidance: The Influence of Role Orientation in the Supreme Court’s Creation of Constitutional Doctrine Bradley W. Joondeph∗ For the past three decades positive accounts of Supreme Court decision making have generally relied on one of two models to explain the Court’s behavior. The first is the attitudinal model which posits that the Court’s decisions are best understood as an aggregation of the justices’ individual ideologies or policy preferences. As the two leading attitudinalists have famously written “Rehnquist vote[d] the way he [did] because he [was] extremely conservative; [Thurgood] Marshall voted the way he did because he was extremely liberal.”1 The second is the strategic model based on the view that the justices are not completely free to pursue their policy goals but instead are constrained by the preferences of various other power holders such as their fellow justices Congress the president and the general Associate Professor and Associate Dean for Faculty Development Santa Clara University School of Law. Thanks are due to Terri Peretti and David Franklin for insightful comments at the inception of this paper’s development. 1 JEFFREY A. SEGAL & HAROLD J. SPAETH THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED 86 (2002). Bradley W. Joondeph — WPSA Annual Meeting San Diego California (March 20–22 2008) public.2 The justices’ votes are therefore often the product of strategic adjustments intended to produce the results closest to their true preferences. Importantly both the attitudinal and strategic conceptions of the Court’s decisionmaking generally assume that the justices are solely concerned with furthering their own exogenously determined policy objectives. The law and the norms of the legal process are largely afterthoughts except insofar as maintaining the appearance of legal reasoning is strategically advantageous.3 In recent years however a counterinsurgency of sorts has emerged to defend the view that law broadly understood might actually affect the Court’s decisions. Working within the school of new institutionalism and using methods of indepth case studies and historical interpretation a number of scholars have argued that the Court’s institutional environment amounts to more than just a set of political constraints. 2 See e.g. LEE EPSTEIN & JACK KNIGHT THE CHOICES JUSTICES MAKE (1998); WALTER F. MURPHY ELEMENTS OF JUDICIAL STRATEGY (1964); Lee Epstein & Thomas G. Walker The Role of the Supreme Court in American Society: Playing the Reconstruction Game in CONTEMPLATING COURTS (Lee Epstein ed. 1995); William N. Eskridge Jr. Reneging on History? Playing the Court/Congress/President Civil Rights Game 79 CAL. L. REV. 613 (1991); Forrest Maltzman James F. Spriggs II & Paul Wahlbeck Strategy and Judicial Choice: New Institutionalist Approaches to Supreme Court Decision |
| 531 U.S. 98 (2000). 121 46 The Motives of Judicial Avoidance precedent. Their sense of role also impels them to create constitutional rules that encourage judges to act like judges and not like legislators. 47 |
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Role Orientations of Judges in Latin America: A Pilot Project Survey of Judges in the Supreme Court of Justice, Court of Appeal, and Courts of First Instance in Uruguay
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