Judicial Philosophy, Federalism, and U.S. Constitutional Law

Judicial Philosophy: Activism and Restraint

A judicial philosophy is broadly defined as a set of perspectives regarding how judges must or should construe the principles contained in the U.S. Constitution. However, a particular judicial philosophy also depends significantly on a justice's individual ideologies — including that judge's beliefs concerning the correct role of the courts within the U.S. political system. An "activist" judge develops a particular philosophy as a result of his or her activist ideology, for instance, while judicial "restraint" tends to reflect a strict constitutionalist interpretation of the judge's role.

These two different perspectives — activism and restraint — usually lead to entirely different philosophies on the bench. The activist judge might hold to the philosophy that it is not only his or her role to interpret the law but to help "make" the law. A restrained judge, by contrast, would be more likely to embrace the ideal of checks and balances among the branches of government and to interpret existing law in light of the Constitution, rather than assisting the legislative branch in altering it.

Formalism vs. Legal Realism on the Supreme Court

Chief Justice of the U.S. Supreme Court John Roberts holds a "formalist" philosophy. The basis for his philosophy is that his job is to use existing law — such as precedent, statutes, and constitutional requirements — to interpret the law. Political views or personal perspectives have no place in his decisions. Despite his personal ideologies, he believes his role is simply to articulate the law as written.

Justice Sonia Sotomayor, by contrast, holds a "legal realist" philosophy. Legal realists believe that the law must be adaptive. Empathy, for example, does play a part in considering and making legal decisions, and a judge's own values are considered pertinent and relevant to the decisions they make.

Dual Federalism: The Layered-Cake Model

The particular philosophies assigned to judges by outside observers do not necessarily account for all the reasons behind their decisions, nor can those decisions always be predicted. Over the long term, however, the realist may make meaningfully different decisions than the formalist. Empathy — developed through a person's background and experiences — utilized as a tool to interpret the law will look different than viewing the law strictly through the lens of constitutional text. One need only look at past court decisions to see that judges can make surprising and unpredictable choices.

Layered-cake federalism — a form of dual federalism — envisions two separate "families" of government. The state level holds certain authority and responsibility for governing the people within that state, while the national government holds different authority and responsibility for decisions at a federal level. "Never the twain shall meet" is an apt descriptor. The prime historical example of this form of federalism is the U.S. government from the late 1700s through the early 1900s. Under dual federalism, both separate and shared powers are present.

Under the original dual federalism of the country's early years, each state that entered the Union was offered a kind of "partnership" with the federal government, and every state understood what that arrangement entailed. The federal government could declare war, coin money, control immigration, sign treaties, appoint ambassadors, interpret laws, and regulate interstate commerce. These powers were granted to the federal government by the Constitution, Articles I–IV and Article VI. Powers reserved to the states included passing laws within their territories and controlling health, policing, education, marriage, voting requirements, and even trash collection — granted by Article IV and the Tenth Amendment. Shared powers, such as levying taxes, creating courts, and making laws for the general welfare, were grounded in the Tenth Amendment.