Morality in the Judicial Process Essay examples

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Justices must by necessity implicitly or explicitly consider questions of wisdom, justice, social harm and morality when deciding if a statute is unconstitutional. They should ensure that all these considerations are rooted in constitutional principles and constitutional questions. Society should not imagine these considerations are not present in judicial reasoning, nor should justices be ruled by them. The questions justices properly ask when deciding if a statute is unconstitutional are shaped by a moral vision of the proper role of the judiciary in representative democracy.
There are times when the correct constitutional reading of a challenged statute is explicit and uncontroversial. In these cases, it would be extremely harmful to
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Depending on the academic school they find convincing, a justice’s understanding of the same clause of the constitution might be starkly different.
Another choice the justice can make is to apply a legal philosophy. For example, a justice might choose to prefer upholding existing precedent rather than overturning it by a new argument – the doctrine known as ‘stare decisis.’ A justice might also show deference to the judgment of the legislature, applying a presumption of constitutionality to a questioned statute – an example of the doctrine of judicial restraint. All of these choices and many more, regularly inform judicial rulings, and are fundamental to the way justices decide constitution questions.
A justice who ascribes to strict constructionism may argue, as did Justice Hugo Black, that absolutely “no law… abridging the freedom of speech” is constitutional. By contrast, a justice who ascribes to original meaning may argue for an understanding of the same text which allows for more legislative leeway. A justice who ascribes to stare decisis may argue, as did Chief Justice John Roberts during his confirmation hearing, that Roe v. Wade was the “settled law of the land” , implying a reluctance to overturn it despite his doubt of the constitutional correctness of the original ruling. Although it is tempting to think of these choices as rooted purely in academic theory, all of them have implications for - and are

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