We are independent & ad-supported. We may earn a commission for purchases made through our links.

Advertiser Disclosure

Our website is an independent, advertising-supported platform. We provide our content free of charge to our readers, and to keep it that way, we rely on revenue generated through advertisements and affiliate partnerships. This means that when you click on certain links on our site and make a purchase, we may earn a commission. Learn more.

How We Make Money

We sustain our operations through affiliate commissions and advertising. If you click on an affiliate link and make a purchase, we may receive a commission from the merchant at no additional cost to you. We also display advertisements on our website, which help generate revenue to support our work and keep our content free for readers. Our editorial team operates independently from our advertising and affiliate partnerships to ensure that our content remains unbiased and focused on providing you with the best information and recommendations based on thorough research and honest evaluations. To remain transparent, we’ve provided a list of our current affiliate partners here.

What is Judicial Discretion?

By Alexis W.
Updated May 16, 2024
Our promise to you
MyLawQuestions is dedicated to creating trustworthy, high-quality content that always prioritizes transparency, integrity, and inclusivity above all else. Our ensure that our content creation and review process includes rigorous fact-checking, evidence-based, and continual updates to ensure accuracy and reliability.

Our Promise to you

Founded in 2002, our company has been a trusted resource for readers seeking informative and engaging content. Our dedication to quality remains unwavering—and will never change. We follow a strict editorial policy, ensuring that our content is authored by highly qualified professionals and edited by subject matter experts. This guarantees that everything we publish is objective, accurate, and trustworthy.

Over the years, we've refined our approach to cover a wide range of topics, providing readers with reliable and practical advice to enhance their knowledge and skills. That's why millions of readers turn to us each year. Join us in celebrating the joy of learning, guided by standards you can trust.

Editorial Standards

At MyLawQuestions, we are committed to creating content that you can trust. Our editorial process is designed to ensure that every piece of content we publish is accurate, reliable, and informative.

Our team of experienced writers and editors follows a strict set of guidelines to ensure the highest quality content. We conduct thorough research, fact-check all information, and rely on credible sources to back up our claims. Our content is reviewed by subject matter experts to ensure accuracy and clarity.

We believe in transparency and maintain editorial independence from our advertisers. Our team does not receive direct compensation from advertisers, allowing us to create unbiased content that prioritizes your interests.

Judicial discretion refers to the authority that judges have for making and interpreting certain laws. Within the United States, judicial discretion is one of the fundamental tenants of the system of law, and is guaranteed in the United States Constitution. Both state and federal judges can exercise judicial discretion, although their discretion is not unlimited.

The US Constitution created three branches of government: executive, legislation and judicial. The doctrine of separation of powers vested certain rights in each of these branches. The system of checks and balances ensures that each branch of the government is able to maintain some degree of independence.

These separation of power rules vest some discretion in the judicial branches, which means that judges are guaranteed to be able to exercise discretion by the US Constitution. Judges can use this discretion to decide cases, and to make common law (also called case law) rules 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 vested in the other branches of the government, and by the doctrine of stare decisis, which means "maintain what has been decided" in the original Latin. This means that a judge does not have the unlimited right to make and interpret laws. Outside of these existing rules and regulations, however, judges can, and do, exercise the power of discretion.

The other branches of the government have the right to make and pass statutes, provided they follow the appropriate guidelines for doing so as set forth in either federal or state constitutions. If a state or the federal government passes a law, it is called statutory law. Judges are bound to follow statutory law, although if a law is not clear, they can interpret it.

Judges therefore cannot use their discretion to overrule statutory law. They can only apply it as they see fit. Although they can't simply change laws, however, the Supreme court does have the discretion to declare that an existing statutory law is unconstitutional.

Stare decisis is the other way in which discretion is limited. Stare decisis means that judges cannot change existing case law interpretations or existing case law rules. This means if another judge has already made a decision on an issue, all future judges must apply it in most cases.

Existing case-made law, or judge-made law can be changed by higher courts, however. This means that even though stare decisis prohibits one judge from coming along and changing what another judge said, a higher court does have the judicial discretion to overturn the existing rule or interpretation. Judges tend to be hesitant to do this because of the strong interest in maintaining precedent, but it does happen on occasion.

MyLawQuestions is dedicated to providing accurate and trustworthy information. We carefully select reputable sources and employ a rigorous fact-checking process to maintain the highest standards. To learn more about our commitment to accuracy, read our editorial process.

Discussion Comments

MyLawQuestions, in your inbox

Our latest articles, guides, and more, delivered daily.

MyLawQuestions, in your inbox

Our latest articles, guides, and more, delivered daily.