in a recent lecture at Yale University, Supreme Court Justice Stephen Breyer cautioned that while most citizens assume that judicial review is an enduring part of American government, judges should not take it for granted. He advises that if judges wish to preserve this undemocratic power they should follow a judicial philosophy that will “build confidence in the courts” (Breyer, 2011). Justice Breyer goes on to describe the kind of judicial philosophy he has in mind. However, some of his colleagues on the Supreme Court would reject his ideas about what philosophy should guide judges.
The role of judicial philosophy (or ideology) in Supreme Court decision-making, especially in its exercise of judicial review to invalidate laws enacted by a democratically elected Congress or state legislature, has become a highly contentious issue both within the Court’s deliberations and in the larger political environment. As the nation becomes more divided over programs and policies that inevitably seem to come before the Supreme Court, politicians and ordinary citizens are caught up in rhetoric about judicial activism or judicial restraint, often with little understanding of what these terms really mean.
Moreover, as public perceptions of the Supreme Court become more politicized, the legitimacy of its power becomes clouded. If the Court is perceived as just another political institution making political decisions, but a completely undemocratic institution because its judges are appointed and serve for life, questions arise about whether the Court’s power of judicial review should be strictly limited or eliminated altogether. Justice Breyer’s warning comes to mind as the percent of Americans approving of how the Supreme Court does its job slid from 61% in 2009 to 46% in 2011 (Gallup, 2012).
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