Judges disagree fundamentally about whether courts may expand constitutional liberty without express textual authority.

Evidence

Whereas Justice White worried about “the judiciary tak[ing] to itself further authority to govern the country without express constitutional authority,” Justice Kennedy celebrated the right of “persons in every generation” to invoke constitutional principles “in their own search for greater freedom.” Thus, a legal explanation for the divergent results in Bowers and Lawrence would highlight the Court’s’ changing understanding of how one identifies the liberties protected by the Constitution and of what role the justices should play in vindicating them. — G. Alan Tarr, Judicial Process and Judicial…, 2430

Categorization

• DEFINE: Captures the interpretive poles — living constitutionalism (Kennedy) versus textualist restraint (White) — that structure doctrine on unenumerated rights.
• XREF: Connects to substantive due process cases (Griswold, Roe, Casey) likely covered earlier in the course. — connects to: Even judges committed to disinterested interpretation disagree sharply about how to interpret legal texts. — G. Alan Tarr, Judicial Process and Judicial…, 2895; Judges must justify rulings through legal reasoning rather than personal preference or popular will. — G. Alan Tarr, Judicial Process and Judicial…, 2437; Judges’ attitudes and institutional context, not law, drive their rulings. — G. Alan Tarr, Judicial Process and Judicial…, 2438 (+14 more)

Broader Connections

• Even judges committed to disinterested interpretation disagree sharply about how to interpret legal texts. #corroborates (1.00) — G. Alan Tarr, Judicial Process and Judicial…, 2895
• Judicial discretion is constrained by written opinions and the craft of judging. #qualifies (0.95) — G. Alan Tarr, Judicial Process and Judicial…, 1281
• Judges’ attitudes and institutional context, not law, drive their rulings. #complicates (0.90) — G. Alan Tarr, Judicial Process and Judicial…, 2438
• Judges expand or narrow precedent by reasoning analogically, not mechanically. #expands (0.90) — G. Alan Tarr, Judicial Process and Judicial…, 1278
• Courts have the essential duty to interpret conflicting laws and constitutions #corroborates (0.90) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 481
• Controversial court rulings reframe public debate without settling the underlying dispute. #expands (0.85) — G. Alan Tarr, Judicial Process and Judicial…, 3363
• Courts cannot supply the constitutional wisdom a people lacks. #corroborates (0.85) — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 3751
• Judicial rulings often fail to secure compliance or resolve conflict #qualifies (0.85) — G. Alan Tarr, Judicial Process and Judicial…, 211
• Judges must justify rulings through legal reasoning rather than personal preference or popular will. #complicates (0.80) — G. Alan Tarr, Judicial Process and Judicial…, 2437
• Precedent lets judges justify rulings without re-deriving first principles each time #qualifies (0.80) — G. Alan Tarr, Judicial Process and Judicial…, 2511
• Genuine constitutional disputes arise over legal meaning, not facts #expands (0.80) — G. Alan Tarr, Judicial Process and Judicial…, 193
• Pragmatic law judges rules by their consequences, not their origins. #complicates (0.80) — Richard A. Posner, What Has Pragmatism to Offer Law?, 38
• Judges may not comment on government policy or law merits. #complicates (0.70) — Lynley Hood, A City Possessed, 3260
• Courts lack legislature’s freedom to set narrow rules without precedent costs #complicates (0.70) — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 1054
• Courts sometimes defer gun disputes to politics rather than constitutional law #complicates (0.70) — Albert Bandura, Moral Disengagement, 1367