Models of Judicial Decision-Making

There are two major theories of judicial decision-making-the legal model and the attitudinal model. The legal model portrays judges as "value free" technicians who examine the facts of a case and then rely on the Constitution (the intent of the framers), statutory documents, and common law (judicial precedents) in making decisions. According to the legal model, judges interpret the law, rather than create the law.

Judicial politics scholars, on the other hand, have utilized the so-called "attitudinal model" to explain judicial decision-making. The attitudinal model posits that "ideology and value preferences" are critically important in judicial decision-making. A major assumption underlying this model is that justices' votes on issues before the high Court can be explained by their ideological attitudes and their policy preferences.

Scholars and politicians have continued their long standing debate over the "counter majoritarian" problem associated with the exercise of judicial power. The central issue centers around whether unelected judges should use should use the power of judicial review to nullify the actions of Congress or the president. Should a majority of "non-elected" justices be able to act contrary to the "majority will" as expressed by our representative institutions of government? If yes, under what circumstances. If no, how can courts preserve fundamental freedoms such as freedom of speech and freedom of religion? Should First Amendment freedoms be subject to majority will? How do we ensure minority rights in a system where all issues are decided by majority will?

Finally, does the attitudinal model of judicial decision-making help in explaining the Senate's refusal to hold confirmation hearing on whether President Obama's nominee, Merrick Garland, should be confirmed for the vacant position presently on the U.S. Supreme Court?