The respective roles of the judicial, legislative and executive branches of the government are set out in the Constitution. State constitutions establish similar regimens on the state level. Under the Constitutional principle of separation of powers the judiciary interprets the meanings of the law and of the Constitution. None of the three branches of the Government is allowed to violate the Constitution but the judiciary has the final say on when it has happened and what remedy is necessary. Should Congress pass a law violative of the Constitution the Supreme Court is duty bound to overturn it through judicial review
The courts have been known to usurp the prerogatives of the other two branches. This tends to happen in situations where the legislature and executive are paralyzed or otherwise pass the buck (ie. fail to act and accept responsibility) to the Courts. This tends to call attention to the profoundly undemocratic nature of our system insofar as judges are not subject to recall and are appointed for life rather than being elected.
Every judge interprets the law through a set of ideals and beliefs known as a judicial philosophy or theory of construction or constitutional interpretation. This becomes an issue, when judicial appointments are made.
Important theories of construction or constitutional interpretation include:
1. Legislative Intent: - When a law is ambiguous the Courts try to figure out what Congress intended when it enacted the statute. The problem is that Congress' intent is not always obvious even when they hold hearings or otherwise make serious efforts to be clear. A court will examine such things as the record of hearings on the bill, speeches and debate proceedings, the vote on the bill, legislative records or journals, committee minutes, fact findings and reports etc. Justice Antonin Scalia objects to the use of such evidence on a theory that evidence of "legislative intent" often consists of interpretations that its proponents couldn't slip into a statute.
2. Originalism: A deeply reactionary set of theories which include original intent and original meaning. "Original intent" looks to be consistent with what was meant by the law makers when they drafted or ratified a statute or Constitution, "Original meaning" proposes that the law be interpreted in conformity with what the texts would have been understood to mean at the time they were drafted. Proponents of originalism include Justices Antonin Scalia and Clarence Thomas as well as Judge Robert Bork. Opponents point out that the original intent of the framers of the Constitution was to perpetuate practices that are anathema to us; slavery for example or the denial of women's suffrage.
3. Textualism. A theory that looks to the meaning of the words of a text in the context of the problem it was supposed to remedy. It avoids non textual sources such as legislative intent. As Justice Scalia once said, "It is the law that counts, not the intent of the law givers."
Textualist judges distrust legislative intent as an interpretive practice on a theory that a 535 member legislature has no genuine collective intent and that even if it did there would be no reliable basis for equating the views of a sponsor with the "intent" of Congress as a whole. Giving weight to legislative history, they believe, oftends the constitutionally mandated processes of bicameralism and presentment
4. Strict constructionism limits judicial interpretation to the meaning of the actual words or phrases of the law and avoids weighing legislative intent. Chief Justice William Rehnquist was an advocate of strict constructionism
5 Judicial activism usually refers to the striking down of acts of the legislature or executive as unconstitutional. The seminal case is Marbury v. Madison (1803); All Supreme Court justices are judicial activists. If judicial activism, however, is seen to trespass on the executive or legislature ("Social Engineering" and whatnot), controversy ensues.
6 Judicial Restraint involves deferral to the Constitution and legislature and close adherence to judicial precedent (stare decisis). All judges are restrained. Some more so than others. Judges value stability and predictability and go to great lengths to defer to the framers of the Constitution. Judicial restraint as practiced by Justices Scalia, and Thomas is a brand of extreme conservatism in that the framers held views far more conservative than most modern Americans. They have turned their backs on the future and look to an imagined past golden age when "family values" (theirs, not ours) and "freedom" prevailed.
7 Judicial minimalism is a slow moving "Living Constitution" theory. Judicial minimalists argue that a stable constitutional law is important and that interpretation away from precedent should be narrowly applied but based on the general direction of society, judicial minimalists believe that originalism promotes antiquated ideas about racism, and gender equality that modern society would find offensive. Justice Sandra Day O'Conner was a judicial minimalist. Her decisions were usually case specific, tended toward the incremental and avoided broad, sweeping rulings. Justice Roberts appears to be a minimalist.
8 Proponents of "Living Constitution" theories believe that the Constitution is organic and must be read in a broad and liberal manner so as to adapt to changing times. It mandates that Constitutional language for the most part be read contemporaneously rather than historically. Justice Scalia argues that the Living Constitution is a license for lawlessness due to the absence (alleged) of fixed Constitutional meanings. Living Constitution in fact, does not suggest that constitutional restrictions be ignored but that they be read with regard to contemporary society. Living Constitution theory was endorsed by Al Gore during his presidential campaign in 2000. He stated, "I would look for justices for the Supreme Court who understand that our Constitution is a living and breathing document that was intended by our founders be interpreted in the light of the constantly evolving experience of the American people.
9 Judicial Pragmatism is a libertarian theory of interpretation that sees the Constitution as a dynamic document, which must evolve with societal norms. Under this view, for example, the Constitutional requirement of "equal rights" should be read in the light of current standards of equality and not those of decades or centuries ago when the words meant something different. Pragmatists believe that the original intent or meaning of the founders is subordinate to currently prevailing views of justice. Judge Richard Posner, a libertarian pragmatist, finds it "reassuring to think that the courts stand between us and legislative tyranny even if a particular form of tyranny was not foreseen and expressly forbidden by the framers of the Constitution".
These theories sound very academic but are in fact relevant to our daily lives. They are the tools that the Courts use to determine the meaning of the law. During the last six years President George W. Bush has appointed, with the "advice and consent" of the Senate, multiple right wing extremists to the lower courts and at least one right wingnut with an ideological agenda, Justice Samuel Alito, to the Supreme Court. (To my mind Chief Justice John Roberts is very conservative but less ideological than Alito). Most of Bush's judicial appointments have been vigorous, middle aged men and women who will force the law and the Constitution into an originalist strait jacket for decades to come. In the next two years Bush will have the opportunity to appoint many more federal judges and, considering the advanced age and health problems of several of the incumbents, one or two Supreme Court justices. A Democratic Congress could stop him in his tracks. Think about that when you go to vote this Tuesday.