Introduction:

To Whom It May Concern:

Judicial Attitude:
Judicial attitude is the most crucial part of a fair, representative bench. Aside from
humanizing the decision making process, making rulings more understandable to
civilians, judicial attitude is the closest that the Supreme Court justices can get to
democracy. Justices are not elected, and so best represent the people by sharing and
displaying political ideologies in common with the president who nominates them and the
Senate that confirms them (a president is unlikely to nominate a justice with radically
different views from his or her own). As justices are serve for life and are appointed only
when there is an opening, chances are, the court at any given time will consist of justices
appointed by several different presidents, allowing for a diversity of opinion that will lead
to a fair and widely acceptable ruling. Critics of judicial attitude will argue that it puts to
much power in the hands of nine unelected people who are accountable to no one; I
disagree. The power is in the hands of the voting population that elects the president who
nominates the justices and the Senate that confirms them. The Supreme Court justices are
no less accountable than a second term president; in fact, the fact that they are not
accountable means that they cannot be swayed by the threat of removal or nonelection.
Other opponents of judicial attitude will claim it politicizes the Supreme Court in exactly
the way that the appointment process is designed to prevent. The Supreme Court will
undoubtedly be swayed by politics; there is no preventing it. However, if every justice is
biased in a slightly different directionnot merely what the executive and legislative
branches of government trend towards at any given timethe individual ideologies will
balance out and result in a bipartisan ruling.

Original Intent:
Original intent is an extremely flawed process by which to interpret the Constitution; it
binds justices to a time long past and laws which may not be at all applicable to modern
society. The framers wrote the Constitution over 200 years ago. Times change, and laws/
policies/ court proceedings need to take that into account. Americas social, economic,
and political situations and needs have changed dramatically since 1787. An outdated
interpretation of the Constitution that is not applicable to the time it is being applied in is
no use at all. The correct response to a case in 1787 might well not be an appropriate way
at all to handle the same case in 2015. Furthermore, with nine people tasked with
determining the rights of 370 million people, those nine justices need the freedom to
make the choices that would affect those rights as they pertain. The claim of original
intent advocates that the method keeps consistency in the rulings of the court begs the
questionwhat is consistency in a changing world? Even if they could be applied,
centuries-old rulings should not be used to anchor modern decisions. They may serve as a
guide where appropriate, but the if the rulings dont fit with the times, the Constitution
loses all its functionality. The other main argument of proponents of the original intent
approach, that it avoids political bias, is also deeply flawed. For one thing, how are we to
know exactly what the founding fathers wanted? Surely people would use the
Constitution to find different intentions that fit their political motivations. For another, I
dont agree that political bias is a bad thing in the decision-making process. The justices
are nominated by presidents and confirmed by the Senateboth democratically elected
positions. Both the president and the Senate are interested in appointing a justice with
whom they agree politically. For a Supreme Court justice who is not democratically
elected, an opinion that agrees with the opinions of popularly elected officials as close to
representing the people as it is possible to come.

Textualism
Both schools of textualism, original meaning and literalism, are similarly outdated means
of understanding the Constitution; original meaning binds justices to the meaning of the
words when they were written, while literalism constrains judges to the modern meaning
of old words. Both methods enforce a rigidity that is unhealthy for the success of the
Constitution through time. Original meaning has very similar drawbacks to original
intent: it binds decisions to a time long past. While literalism is slightly more flexible
than original meaning because it allows for the modernization of meaningsas long as
they belong to the old wordsit is extraordinarily problematic because justices lose sight
of why the framers wrote what they did. If the main argument for original intent is that
the framers were smart, did everything for a reason, and that their words could limit bias,
than placing meaning to their words that they never intended undermines those potential
benefits. Laws, policies, and rulings that affect the nation need to be applicable the
nations current needs and the justices need to interpret the Constitution in a way that
keeps it applicable to whatever and wherever the nation may be at any given point in
time. The fact also remains that there is no one interpretation of the words of the
Constitution any more than there is any one interpretation of the Constitution itself.
Advocates of both methods of textualism present similar arguments as proponents of
original intent. While using the meaning of the words when they were written does help
to eliminate bias, I would simply say that that is not only an unnecessary, but a
counterproductive goal, as personal bias improves the ruling process. Literalism also
loses the goal of consistency by allowing the meaning to change with time, but also
doesnt allow for the flexibility needed for true application because justices are still
bound to the words themselves.

Polls of Other Jurisdictions and Stare Decisis

Hindsight may not be exactly 20/20, but its a lot closer and much easier to analyze than
the present. Polls of other jurisdiction, looking to other sources (laws, policies) to make
decisions and stare decisis, the use of old court cases as precedents, allow justices to keep
the best from past decisions and avoid making the same mistakes twice. Because it is up
to the justices which cases or sources they want to consider, they can ignore those
inapplicable to the current situation, thus keeping their decisions in line with the modern
world. If a policy worked in one situation in another part of the world or another point in
time and the situations are similar in a court case, it is very reasonable to expect that
consistent circumstances will yield close results. Yes, it is possible that governments and
courts can make bad decisions, and that replicating them would only double the
ineffectiveness or unfortunate consequences of the first decision, and some old choices
wont be applicable years after, but that is the beauty of the flexibility afforded the
justices; they can use the successful and applicable decisions and policies and ignore the
others.

Pragmatism
Along with the power entrusted to Supreme Court justices to determine the rights of the
people of a nation comes the responsibility run a cost-benefit analysis and consider how
any given ruling will affect the public for years to come. Decisions made by the court
hundreds of years ago still have great weight, liberties have been clarified, and many
rights not explicitly stated in the Constitution have been won in cases throughout the
years. Every single person in the country has been impacted in some way by at least one
Supreme Court case, because the Supreme Court does not rule on minor issues, but
instead hears broad cases that have a wide impact. Given the power to change the lives of
hundreds of millions of people, the Supreme Court needs to consider the potential
consequences of the decisions it is making. It is a case of the greater good for the greater
many, and it is the job of the court to reach the decision that is consistent with an
applicable (time sensitive) interpretation of the Constitution that helps as many people as
possible. Supreme Court cases may be used as precedence, and so may well be of
consequence for centuries. Rulings are long lasting, and that long-lastingness couldand
might need toinfluence decisions. Rulings, like the Constitution itself, need to be
broadly applicable Furthermore, the Supreme Court is part of a larger institutionthe
federal governmentand may be independent of the executive and legislative branches,
but at the end of the day it is one of three branches. If the branches are operating without
regard to the others, different parts of the government might contradict each other. It is
not wrong for the Supreme Court to contradict the executive and legislative branches of
the government, but it is important that it do so in a way not to cause dysfunction in the
government. A common criticism of pragmatism is that it allows justices to be swayed by
outside pressures and potential political ramifications. I do not think that all outside
pressures are badjustices need to be thinking about the people whose rights they are
protectingand disagree that it would result in potential political ramifications. When
done properly, pragmatism should be used to help the people of the United States, not
one political party. Other opponents could argue that there is a difference between what
justices might want the effect to be and what it realistically would be, and that
consequences are so hard to predict that pragmatism is pointless. Supreme Court justices
are not dumb. They need to have their fingers on the pulse of the nationit is part of
their job morally, even if its not in their contractsand so should have a pretty good
idea of what will happen if they make a certain ruling, especially considering past
consequences. Yes, the future is difficult to predict, but difficult does not mean hopeless.
By putting in the work to evaluate the most likely consequences of their rulings, justices
can greatly increase their chances of helping the nation as a whole.

Judicial Role
The essential problem with judicial role is that every justice will have a different idea of
precisely what his or her role is, and so will allow themselves different amounts of
power. This could result in a power imbalance withdepending on personal ideologies
of the justicesone political mindset wielding too much power, disrupting the balance
born from the diversity of opinions that is the beauty of judicial attitude. Yes, the role of
the justice is very much up for debateeach will feel differently, and each must feel
comfortable with their actionsbut any given set of justices should agree on what their
role is (and revise it each time a new justice is appointed) so they all have an equal voice.
Individual justices might chose to use less power, but every justice should be able to pull
equal weight in the decision making process.

Strategic Approach

While strategic approach does promote unity in the court, it also dilutes the diversity of
ideas that flavor a strong, broad, and fair decision. Upon taking control of the Supreme
Court in 1801, Chief Justice John Marshall did prove that unity of the court equals
authority, and he used that unity in part to elevate the judicial branch to the level of the
legislative and executive branches. Considering other justices in decisions does promote
unity, but the benefits of strategic approach end there and the dangers are many. Basing
your decision in part on the ideas of you eight coworkers makes the number nine
pointless. Why not have five, three, even one, if you are not going to approach the
decision from different angles? Strategic approach also puts more political pressure on
the justices; if one justice is swayed by outside politics, more are likely to be affected.
More importantly, the justices are more likely to pressure each other into certain
decisions. If there is too strong a pressure to produce a unified decision, the justices are
more likely to make the wrong ruling by siding with the majority rather than considering
all angles that might produce a better result.

Partisan Politics
Supreme Court justices should not consider partisan politics and interest groups in their
rulings, because both prioritize one group of people above the country as a whole.
Justices can and should stick to their own beliefs; they should not feel pressure to
conform those beliefs to any one political party. Justices should also not be swayed by
political officials to make rulings to help any one party. Yes the Supreme Court is part of
a bigger government, but it can coexist and work with the other branches without being
pressured into losing its independence.

Interest Groups
Justices should not allow small interest groups to dictate their decisions. If the group is
large enough, and it becomes a majority, than considering the collective opinion is
pragmatic. However, many interest groups are very small and very radical, and basing
rulings off their desires would put the desires of one group above the needs of the nation.

Public Opinion
Justices should consider public opinion but not base their decisions on it. Public opinion
may be a good indicator of the potential reactions to a ruling, but ultimately, justices
should lead towards ideals of the country. Equality for all is a particularly important
value for justices to prioritize while not getting so far ahead of public opinion that the
rulings are radical and totally unacceptable.
All things that are flawed are so if they are the only thing considered, but everything is
important for different justices to consider for diverse opinion.

Justice Brennan summed up the dangers of basing decisions solely on original intent
succinctly and eloquently in a 1985 address at Georgetown University.

The genius of the Constitution rests not in any static meaning it might have had in a
world that is dead and gone, but in the adaptability of its great principles to cope with
current problems and current needs (25).

Methods that allow the justices to reflect upon the past without binding them to
outdated procedures are extremely important in the ruling process. Stare decisis and polls
of other jurisdictions both allow the justices to observe past decisions and policies and
decide whether the results would be applicable to the current situation. Perhaps even
more essential are the methods of interpretation that allow for diversity of opinion and a
flexibility that keeps the Constitution applicable in the changing world, such as judicial
attitude, pragmatism, and consideration of public opinion. The world has changed
immeasurably since 1787, and anachronistic decision-making processes, such as the use
of original intent, original meaning, and literalism, are of very little use in the modern
world. The United States Constitution has survived for centuries because it is fluid and
adaptableand justices must continue using those flexible methods of interpreting the
document if it is going to govern our nation for centuries more.