Judicial discretion is the authority judges have to interpret and make laws, limited by the US Constitution, statutory law, and stare decisive. Judges can establish common law and interpret existing laws, but cannot overrule statutory law. Higher courts can overturn existing case law.
Judicial discretion refers to the authority judges have to make and interpret certain laws. Within the United States, judicial discretion is one of the fundamental tenants of the law system, and it is guaranteed by the United States Constitution. Both state and federal judges may exercise judicial discretion, although their discretion is not unlimited.
The US Constitution created three branches of government: executive, legislative, and judicial. The doctrine of separation of powers conferred certain rights on each of these branches. The system of checks and balances ensures that each branch of government is able to maintain some degree of independence.
These separation of powers rules give some discretion to the judicial branches, meaning that judges are guaranteed the ability to exercise discretion by the US Constitution. Judges can use this discretion to decide cases and to establish rules of common law (also called jurisprudence) where no existing rule applies. Judges can also use their discretion to interpret existing laws, as long as their interpretation does not conflict with the plain language of the existing law.
Judicial discretion is limited by the rights of the other branches of government and by the doctrine of stare decisive, which means “to maintain what has been decided” in the original Latin. This means that a judge does not have an unlimited right to make and interpret laws. Outside of these existing rules and regulations, however, judges can, and do, exercise discretion.
Other branches of government have the right to make and pass statutes, provided they follow the proper guidelines for doing so, as set forth in federal or state constitutions. If a state or federal government passes a law, it is called statutory law. Judges are required to follow statutory law, although if a law is unclear, they may interpret it.
Judges therefore cannot use their discretion to overrule statutory law. They can only apply it as they see fit. While they cannot simply change laws, however, the Supreme Court has the discretion to declare an existing statutory law unconstitutional.
Staredecis is the other way discretion is limited. Staredecis means that judges cannot change interpretations of existing jurisprudence or existing rules of jurisprudence. This means that if another judge has already made a decision on an issue, all future judges must apply it in most cases.
However, existing case law or case law can be changed by higher courts. This means that even if stare donos prohibits a judge from stepping in and changing what another judge has said, a higher court has judicial discretion to overturn the existing rule or interpretation. Judges tend to be reluctant to do this due to strong interest in maintaining precedent, but sometimes it happens.
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