we're gonna look at the Supreme Court from a different angle. We're gonna try to get

inside the justices' heads. Bwahahahahah!

Not literally, obviously, but we're gonna look at the factors that influence the way

they decide cases, other than the structure of the court system. So we're pretty far away

from the Constitution here and straddling the nebulous world of government, politics, and dare I say it, history.

[Theme Music]

Justices, especially on the Supreme Court, are supposed to be independent, but that doesn't

mean they make their decisions in a vacuum. They make them in an office, just like most people who work.

More importantly, they're influenced by a number of factors other than the case that's in front of them.

In terms of their role in government, justices might be influenced by Congress, because they

know that, unless the case involves the Constitution directly, congress can respond to a decision

overturning a law by passing a new law.

Once justices have been selected and confirmed, the President has minimal effect on judicial

decisions although he's somewhat influential on lower court justices who might one day

want to be on the Supreme Court. So you lower court justices, you be nice to that prezzy, OK?

Knowing that the President get to make the call on who gets to be a justice with the

help of the Senate of course, federal judges are more likely to make rulings that are more

likely to get them considered for the court.

Since the president only serves eight years maximum, though, it's hard for judges to know

who will be President when a vacancy in the court opens up, so the President isn't much

of a factor. Much more influential on justices is history, which works in two ways. First,

the principles of precedent and stare decisis constrain the possible decisions that justices

can make. Second, and more historical in the sense we think of history, justices know that

their decisions will be studied by generations of historians, and lawyers, and YouTube viewers,

and they are very well aware that some decisions, like Dred Scott, Brown V. Board, and Roe V.

Wade, can have an enormous impact on American history. And now the historical stakes are

even higher, because they know that their decisions will be talked about by a bearded

balding man on YouTube forever.

Judges may behave strategically and consider the way that their decisions will be implemented

by the executive branch or how a part of one decision will lay the foundation for a change

in the law in a decision later. Although it isn't supposed to matter, judges are influenced

by their political ideology, whether they're liberal or conservative or possibly by their

party affiliation, whether they're Democrats or Republicans or the Tea Party or the Green

Party or they're party animals, like Ruth Bader Ginsberg. Party affiliation and political

ideology are certainly important in the selection process -- it's pretty rare that a Democratic

president selects a Republican judge to be on the Supreme Court, especially these days,

although sometimes it happens that a justice turns out to be more or less conservative

or liberal than the president thought. Former Justice David Souter is a good example of

a judge appointed by a Republican who turned out to be much more to the liking of Democrats.

Finally, and perhaps most important, judges are influenced by their philosophical orientation,

by this I mean their judicial philosophy, not whether they're existentialists or logical

positivists. While I'm sure that there are many judicial philosophies out there, the

two which matter most, at least in terms of the way commentators talk about the Court,

are judicial activism and judicial restraint. Let's not show any restraint in actively going

to the Thought Bubble right now.

Judicial activism is the idea that the Court should act as an instrument of policy, making

it much more like the other two branches of government. Judicial activists tend to look

beyond the text of the Constitution and statutes, instead choose to consider the broader social

implications of the decisions they render. Activist judges are supposedly eager to overturn

Congressional legislation to further their policy goals, and they're often accused by

opponents of making law from the bench. Judicial activism is often associated with liberal

or Democratic justices, but it's not that simple.

Judicial restraint, as the name implies, is the idea that judges should pay close attention

to the precedent when they make their decisions, and that any changes that they make to the

law should be incremental. They are the judicial tortoises to the activist hares. Judicial

restraint is sometimes confused with originalism, the idea that any new law should be interpreted

in the light of the Constitution as it was written in 1787. Basically a 'What Would James

Madison Do?' orientation. Although advocates of judicial restraint often rely on the Constitution's

text, it's later precedent that restrains them more than the Constitution does. Judicial

restraint is often equated with conservatism, which makes sense, as conservatives generally

are against change, but as with judicial activism, the equivalence isn't perfect.

The two different philosophies are each associated with different historical moments. The high

tide of judicial activism occurred between the 50s and the mid-70s, when Earl Warren

and Warren Burger were the Chief Justices. During this time, the Court made important

decisions: expanding civil rights, voting rights, the right to privacy, and the rights

of people accused of crimes. From the 1980s through the early 2000s, the Court led by

William Rehnquist was known for its judicial restraint, dialing back civil rights, affirmative

action, and desegregation programs and attempting to rein in the power of the national government

and devolve some power back to the states. Thanks, Thought Bubble.

So a minute ago, I said that activism wasn't the same as political liberalism and restraint

wasn't the same as conservatism. Let me try to explain what I meant. Mainly, the issue

here is the claim that conservative justices practice judicial restraint. If you've been

paying attention to the Court recently, you'll see that this isn't always the case. The current

Supreme Court led by Chief Justice John Roberts has five generally conservative justices and

four that are usually considered liberal. The conservatives were all appointed by Republican

presidents and the liberals by Democratic presidents. These conservative justices have

been pretty activist in some of their decisions, however. For example, the Citizens United

case broke with previous precedent and allowed much more campaign fundraising than prior

court decisions had, which is something that political conservatives wanted. Recently,

the Roberts court invalidated parts of the Voting Rights Act, which had been passed originally

in 1965 and renewed by Congress in 2010. Here's why this is problematic: one of the core tenets

of judicial restraint is that courts are not supposed to overturn the decisions of a democratically-elected

Congress in order to make policy, unless Congress has passed laws that are clearly unconstitutional.

It can work the other way, too. While the Warren court was generally pretty activist

and stocked with politically liberal justices, Justice Breyer, who's usually considered politically

liberal and was appointed by a Democrat, believes that judicial change should be incremental

and doesn't want to make decisions that will cause sweeping changes. So he's exercising judicial restraint.

So, I'm going to stop here, otherwise we're going to fall into the trap of talking politics,

and I don't want to do that with him around, 'cause he's always trying to sue American

Eagle Apparel for violating his right of publicity, and I think it's fine, they've had that trademark

for quite some time! I'm sorry, but you don't really have those rights, you're not human

or even a real eagle. So let me just remind you of a few things in attempt to be as clear as possible.

First, judicial philosophy is not the same thing as political ideology, even though the

media, especially the television media, likes to say they are. Judicial philosophy refers

to activism and restraint, while political ideology refers to liberalism or conservatism.

It's possible to be both politically conservative and judicially activist, and vice versa.

Second, there's lots of factors that influence the way judges make decisions, and the judges

rarely let you know which one is at work. Whenever you look at a Court decision, which

we're gonna do soon, think about which factors went into that decision, especially in the

way that Congress and the Executive will react to it. Remember, despite what you may hear,

all decisions are highly political, except the decision to end this video. Thanks for watching; see you next week.

Crash Course Government and Politics is produced in association with PBS Digital Studios. Support

for Crash Course US Government comes from Voqal. Voqal supports non-profits that use

technology and media to advance social equity. Learn more about their mission and initiatives

at voqal.org. Crash Course was made with the help of all of these judicial activists. Thanks for watching.