Appellate Courts - Policy and Impact

1. Appellate CourtsAppellate Courts
Making Policy and ImpactMaking Policy and Impact

2. Reviewing Lower CourtsReviewing Lower Courts
 Impact Through ReversalsImpact Through Reversals
 2/3 of lower court decisions affirmed2/3 of lower court decisions affirmed
 Why?Why?
 Presumption of validityPresumption of validity
 ““Clearly Erroneous” standardClearly Erroneous” standard
 Most cases are easyMost cases are easy
 Frequent reversals = tensionFrequent reversals = tension
 Supreme Court – 98% of decisions affirmedSupreme Court – 98% of decisions affirmed

3. Appellate Court Agendas, Patterns,Appellate Court Agendas, Patterns,
and Ideologyand Ideology
 What is it that appellate courts want toWhat is it that appellate courts want to
accomplish? (i.e., agenda)accomplish? (i.e., agenda)
 Focus on particular area of lawFocus on particular area of law
 IdeologyIdeology
 Supreme CourtSupreme Court
 State CourtsState Courts

4. Judicial ActivismJudicial Activism
 What is judicial activism?What is judicial activism?
 Definition – the willingness of a judge to inject into a case his orDefinition – the willingness of a judge to inject into a case his or
her own personal values about what is good and bad publicher own personal values about what is good and bad public
policypolicy
 Definition – the doctrine that courts should develop new legalDefinition – the doctrine that courts should develop new legal
principles when judges see a compelling need, even if this actionprinciples when judges see a compelling need, even if this action
places them in conflict with the policy decisions of electedplaces them in conflict with the policy decisions of elected
officialsofficials
 What is judicial restraint?What is judicial restraint?
 Judicial restraint – the doctrine that the judiciary should be highlyJudicial restraint – the doctrine that the judiciary should be highly
respectful of precedent and should defer to the judgment ofrespectful of precedent and should defer to the judgment of
legislatures. The doctrine claims that the job of judges is to worklegislatures. The doctrine claims that the job of judges is to work
within the confines of law set down by tradition and lawmakingwithin the confines of law set down by tradition and lawmaking

5. Judicial Activism (cont’d)Judicial Activism (cont’d)
 How is judicial activism related to judicial review?How is judicial activism related to judicial review?
 Marbury v. MadisonMarbury v. Madison and judicial reviewand judicial review
 The power to review and strike down any legislation or otherThe power to review and strike down any legislation or other
government action that is inconsistent with federal or stategovernment action that is inconsistent with federal or state
constitutions.constitutions.
 Important QuestionsImportant Questions
 Is this counter-majoritarian?Is this counter-majoritarian?
 Should courts defer to the will of the democratic majority?Should courts defer to the will of the democratic majority?
 Are courts anti-democratic in general?Are courts anti-democratic in general?
 Activism is not limited to liberalsActivism is not limited to liberals
 Bush v. GoreBush v. Gore
 Lochner v. New YorkLochner v. New York
 Griswold v. ConnecticutGriswold v. Connecticut
 How do we know a restraintist judge when we see one?How do we know a restraintist judge when we see one?

6. Judicial Activism (cont’d)Judicial Activism (cont’d)
 What factors have led to increased activism in the modern period?What factors have led to increased activism in the modern period?
 Reflection of the policy goals of the justicesReflection of the policy goals of the justices
 Growth in government action in generalGrowth in government action in general
 Growth in interest group litigationGrowth in interest group litigation
 Are courts activist now?Are courts activist now?
 Courts only strike down a small percentage of all laws passedCourts only strike down a small percentage of all laws passed
 Individual levelIndividual level
 Powell and WhitePowell and White
 Deferral to legislature is based on ideologyDeferral to legislature is based on ideology
 Is there a positive to judicial activism?Is there a positive to judicial activism?
 Is there a counter problem to this?Is there a counter problem to this?
 Madisonian DilemmaMadisonian Dilemma
 The truth aboutThe truth about Marbury v. MadisonMarbury v. Madison
 So should we have judicial review and judicial activism?So should we have judicial review and judicial activism?

7. The Impact of Appellate CourtThe Impact of Appellate Court
PoliciesPolicies
 Important questionsImportant questions
 Do courts matter for social and public policy?Do courts matter for social and public policy?
 If courts do have an impact is this a problem forIf courts do have an impact is this a problem for
democracy?democracy?
 Is the court an affective forum for minorities toIs the court an affective forum for minorities to
actually pursue their policy goals?actually pursue their policy goals?
 Difficulties of Assessing Court Impact (so manyDifficulties of Assessing Court Impact (so many
actors)actors)
 Interpreting PopulationInterpreting Population
 Implementing PopulationImplementing Population
 Consumer PopulationConsumer Population
 Secondary PopulationSecondary Population

8. Impact on and Compliance of OtherImpact on and Compliance of Other
Government ActorsGovernment Actors
 Lower Courts andLower Courts and
AdministratorsAdministrators
 Factors AffectingFactors Affecting
ComplianceCompliance
 Attitudes toward policyAttitudes toward policy
 Judicial authorityJudicial authority
 SanctionsSanctions
 ReversalsReversals
 Denial of EnforcementDenial of Enforcement
 Public rebukingPublic rebuking
 Contempt and MonetaryContempt and Monetary
penaltiespenalties
 Clarity of Decisions?Clarity of Decisions?

9. Impact on and Compliance ofImpact on and Compliance of
Government Actors (cont’d)Government Actors (cont’d)
 Legislative and ExecutiveLegislative and Executive
BranchesBranches
 LegislatureLegislature
 Responding to StatutoryResponding to Statutory
InterpretationInterpretation
 Responding to ConstitutionalResponding to Constitutional
InterpretationInterpretation
 Affecting ImplementationAffecting Implementation
 Potential NegativePotential Negative
ResponsesResponses
 Budgetary threatsBudgetary threats
 Changes to jurisdictionChanges to jurisdiction
 Threat of impeachmentThreat of impeachment
 Why aren’t these used moreWhy aren’t these used more
often?often?
 ExecutiveExecutive
 Enforcement through DOJEnforcement through DOJ
 AppointmentsAppointments

10. Impact on and Compliance ofImpact on and Compliance of
Government Actors (cont’d)Government Actors (cont’d)
 Legislative and ExecutiveLegislative and Executive
BranchesBranches
 LegislatureLegislature
 Responding to StatutoryResponding to Statutory
InterpretationInterpretation
 Responding to ConstitutionalResponding to Constitutional
InterpretationInterpretation
 Affecting ImplementationAffecting Implementation
 Potential NegativePotential Negative
ResponsesResponses
 Budgetary threatsBudgetary threats
 Changes to jurisdictionChanges to jurisdiction
 Threat of impeachmentThreat of impeachment
 Why aren’t these used moreWhy aren’t these used more
often?often?
 ExecutiveExecutive
 Enforcement through DOJEnforcement through DOJ
 AppointmentsAppointments