Supreme Court and Merrick Garland

¶ … counter-majoritarian difficulty is what some refer to as the most well-known issue in constitutional theory. A phrase created by Alexander Bickel, the Yale Professor introduced it in his book titled The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Although it is not certain what Bickel meant by making that phrase, it grew to have a life of its own. Essentially now it means when unelected judges nullify the actions of legislators/electedexcutives through utilization of the power of judicial review, acting contrary to the will of the majority as conveyed by representative institutions.

Those that consider democratic majoritarianism of great political value may see this aspect of judicial review as challenging. However, in the days when civil rights were nonexistent and people were having their personal rights violated, this aspect of judicial review provided the push to change laws, and inevitably, change society. Therefore, a majority of 'non-elected' justices should be able to go against the 'majority will'. This is so that the minority have a chance to be heard and to dissolve the power the majority have over society.

One of the reasons the Senate refuses to hold a confirmation hearing on a potential appointment of Merrick Garland as Justice under the recommendation of President Obama is to avoid any challenges to the interests of the majority in the Senate. With the majority of the Senate being Republican, and Merrick Garland perhaps seen as in favor of views opposite of this majority, he and the Justices he may influence, could overturn decisions and policy that favor the majority. This essay is meant to highlight under what circumstances the attitudinal model of judicial decision-making has helped the United States in keeping the delicate system of checks and balances preserved and how it may be the cause for standstills in the Senate.

The attitudinal model of judicial decision-making means judges are policymakers, deciding cases at times exclusively on the foundation of their personal policy preferences. That means even though facts and laws presented in a case beg to decide in one way, the judge will decide the other based on their own attitudes towards policy and the facts of the case. This is seen often in the Supreme Court where Supreme Court Justices dole out verdicts that seemingly go against certain policies or laws or 'majority will'. A good example of this is the level of intrusiveness in police searches or warrantless inspections. The first kinds of judges to reject these kinds of searches are liberal judges, followed by moderate judges, and then conservative judges. "The Supreme Court held that they did, and that the requirement of a warrant applies to routine inspections. The Court indicated, however, that a lesser degree of probable cause would be required for an administrative search warrant than for the typical criminal search warrant" (Rosenbloom, O'Leary, & Chanin, 2010, p. 160). This attempt at interpreting the law is why the Supreme Court is part of the system of checks and balances in the United States.

The power of the majority sometimes needs to be challenged. This was the case during the Civil Rights Movement where blacks sought to have equal rights in America. Civil liberties often raise more intense attitudes than other issues. In the 1967 case of Loving v. Virginia, the Court struck down state laws which banned inter-racial marriage. The decision held that marriage was a fundamental right. While the state laws and the majority viewed inter-racial marriage as a crime and something that must be prohibited, the morality of the Justices in the Supreme Court pointed towards such thinking as unconstitutional and thus provided a legal basis from which denial of inter-racial marriage should be outlawed.

Because of these rulings, future rulings are thus affected. "Courts interpret the Constitution, statutory language, administrative rules, regulations, executive orders, treaties, and prior court decisions regarded as precedent, using prior court decisions to help make a current decision" (Kraft & Furlong, 2012, p. 59). When justices decide on cases based on their own beliefs, they affect how future court cases are decided. That is why it has caused so much turmoil among the Senate with the potential appoint of Merrick Garland.

President Barack Obama's SCOTUS appointment of Merrick is not in the interest of a conservative and Republican majority Senate. It has been shown time and time again, that conservative Justices are more likely to side with liberal decisions than liberal Justices with conservative ones (Rosenbloom & O'Leary, 2010). If a liberal Justice gained a position, it might overturn or ruin any progress conservatives made in regards to laws and policy. It is a strategic decision and while it seems detrimental to the Supreme Court and its ongoing rulings, the attitudinal model of judicial decision-making is a big reason for the avoidance of appointing Merrick as a Supreme Court Justice.