The Activist Advocate: Policy Making in State Supreme Courts

The Activist Advocate: Policy Making in State Supreme Courts

The Activist Advocate: Policy Making in State Supreme Courts

The Activist Advocate: Policy Making in State Supreme Courts

Synopsis

Lopeman examines the impact that advocacy of intentional judicial activism by a justice of a state supreme court can have on establishing the court as a policy maker. He examines the "attitudinal" model and the "judicial role" model of decision making and concludes that, while the attitudinal model might describe the decision-making process in the U.S. Supreme Court, the judicial role model better describes decision making in state supreme courts. This judicial role model allows the activist to transform a court into a policy maker.

Excerpt

For much of this century most state supreme courts have taken a back seat in establishing and changing policy for their states. They regularly agreed with the policy embedded in the laws adopted by their states' legislatures. They affirmed the policy that earlier courts had developed and that had become the doctrine of their states' common law. When an unusual case presented a unique problem that existing policy did not answer or answered unsatisfactorily, the state supreme courts looked to their legislatures to come up with a solution.

Although the state supreme courts occupied a secondary policy-making role to their legislatures, after the mid-1930s these legislatures occupied a significantly reduced role in public policy making as the Congress expanded the scope and reach of its powers beyond the restrictions of the dual federalism accommodation. At about the same time the U.S. Supreme Court became active in the enforcement of the rights and liberties guaranteed by the U.S. Constitution and the state supreme courts fell in line and accepted these interpretations by the U.S. Supreme Court as policy for their states. This inferior policy-making role of the states was changed during the 1980s. Calls by forces of various political allegiance for the devolution of power and responsibility from the Congress resulted in congressional invitation to the states to become active in designing the rules that govern their citizens. This devolution continued and increased in scope during the 1990s. The U.S. Supreme Court invited the state supreme courts to become independent policy makers by the use of their state constitutions. The courts in some states began, after World War II, to critically examine their common-law doctrine in the area of tort law. When they realized that their state's common law provided protections that were out of step with the times, these courts began to change the common-law doctrine. These and some other state supreme courts accepted the suggestion of the U.S. Supreme Court to become independent and began to use their state constitutions, protections. Not all state supreme courts have reexamined the policy of their states' common law nor have all chosen to give independent interpretation to their states' constitutions. The state supreme courts that have, have became important policy makers in their states. There has been no explanation why some state supreme . . .

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