Eleanor Finch
Judicial restraint and judicial activism are opposing schools of thought in the interpretation and application of the law. Judicial restraint is the refusal to strike down government acts, leaving the issue to ordinary politics. It is considered desirable because it allows the people, through their elected representatives, to make policy choices. Judicial activism, on the other hand, is the assertion of the power of judicial review to set aside government acts. Judicial activists are often accused of abandoning their responsibility to interpret the Constitution and instead deciding cases to advance their preferred policies. The debate over judicial activism and restraint is complicated by the lack of agreed-upon definitions and examples, as well as the persistent differences of opinion among scholars and judges regarding the interpretation of the Constitution. This discussion is further nuanced by the dynamic nature of the Constitution and the need to adapt it to a changing world.
| Characteristics | Values |
|---|---|
| Judicial restraint | Judges are hesitant to strike down laws that are not obviously unconstitutional |
| Judicial activism | Judges abandon their responsibility to interpret the Constitution and instead decide cases to advance their preferred policies |
| Judicial restraint | Judges believe it is important to defer to legislative intent, stare decisis, the Plain Meaning Rule, and a generally strict and textualist view of judicial interpretation |
| Judicial activism | Judges enforce their own views of constitutional requirements rather than deferring to the view |
| Judicial restraint | Judicial restraint lets the ordinary political process operate |
| Judicial activism | Judicial activism is necessary to correct injustices and promote needed social change |
| Judicial restraint | Judicial restraint is desirable because it allows the people, through their elected representatives, to make policy choices |
| Judicial restraint | Judicial restraint is considered desirable on the grounds that in a democracy elected officials should play the primary role in making policy |
| Judicial activism | Judicial activism is inherently anti-majoritarian |
| Judicial restraint | Judicial restraint is the refusal to strike down government acts, leaving the issue to ordinary politics |
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What You'll Learn
- Judicial activism is necessary to correct injustices and promote social change
- Judicial restraint is desirable in a democracy as it lets elected officials make policy choices
- Judicial activism is anti-majoritarian and can be a check on legislative overreach
- Judicial restraint is the refusal to strike down acts, leaving the issue to ordinary politics
- Judicial restraint is important to avoid upsetting the balance between the three branches of government
Judicial activism is necessary to correct injustices and promote social change
Judicial activism is a judicial philosophy that asserts that courts should go beyond the applicable law to consider the broader societal implications of their decisions. It is often used as an antonym of judicial restraint. Judicial activism is generally considered to occur when judges make rulings based on their own views and preferred policies rather than on precedent or a faithful interpretation of the law. This can involve overturning laws as unconstitutional, overturning judicial precedent, or ruling against a preferred interpretation of the constitution. Judicial activists are often accused of "legislating from the bench" and abandoning their responsibility to interpret the Constitution.
Despite the negative connotations of the term, judicial activism is necessary to correct injustices and promote needed social change. Activism can serve as a check on legislative overreach and is an acceptable last resort when the executive and legislative branches fail to act. For example, in Brown v. Board of Education, the Supreme Court overturned Plessy v. Ferguson, ruling segregation unconstitutional. This landmark decision for civil rights is now hailed as a positive instance of judicial activism. Similarly, in Baker v. Carr, the Court decided that redistricting presented justiciable questions, allowing federal courts to intervene.
In a changing world, judicial activism is necessary to actively interpret the constitution as new conditions arise. Associate Justice William Brennan, known for his strong belief in the Bill of Rights, held that the Constitution must be adapted to keep up with modern times. Philosopher Dworkin supported this view with his theory of "law as integrity," which posits that judges should interpret the law in terms of consistent and communal moral principles, especially justice and fairness.
Furthermore, some scholars argue that judicial activism is most appropriate when it restrains the tendency of democratic majorities to act out of passion and prejudice rather than reasoned deliberation. A stronger judiciary can provide checks and balances and counterbalance the effects of transient majorities, preventing the majority from dominating or oppressing minorities through its elective powers. Thus, judicial activism can play a crucial role in correcting injustices and promoting social change when other branches of government fall short.
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Judicial restraint is desirable in a democracy as it lets elected officials make policy choices
Judicial restraint is generally considered desirable in a democracy, as it allows elected officials to make policy choices. This view holds that judges should refrain from interfering with the political process and instead leave policy decisions to elected representatives. Judicial restraint is often contrasted with judicial activism, where judges take a more active role in shaping policy and interpreting the Constitution.
Judicial restraint is based on the belief that judges should exercise self-restraint and avoid striking down laws unless they are clearly unconstitutional. Advocates of judicial restraint argue that judges lack the authority to act as policymakers and that their role is limited to interpreting the law. This approach promotes stability and predictability in the legal system by emphasising deference to legislative intent and adherence to established legal doctrines such as stare decisis and the Plain Meaning Rule.
In a democratic context, judicial restraint is seen as essential to preserving the separation of powers and respecting the will of the people. By allowing elected officials to set policy, judicial restraint upholds the principle of democratic self-governance. This approach recognises that judges are unelected and may not always reflect the values and preferences of the electorate. By deferring to elected representatives, judicial restraint helps maintain the legitimacy and accountability of the judicial system.
However, the debate between judicial restraint and activism is complex and subject to ideological shifts. The labels of "judicial activism" and "judicial restraint" are often applied retrospectively to decisions that align or conflict with one's political beliefs. The composition of the Supreme Court and the political landscape can influence how these terms are used and perceived. For example, in the context of abortion and gay rights cases, liberals may favour judicial engagement, while conservatives may advocate for judicial restraint.
While judicial restraint is generally favoured to maintain democratic principles, there are situations where judicial activism is seen as necessary. Advocates of judicial activism argue that it is a crucial check on legislative power and a means to promote social change, especially when other branches of government fail to act. Judicial activism can address injustices and adapt the Constitution to evolving societal needs. In this view, judicial activism ensures that the Constitution remains a living document capable of responding to new challenges and interpretations.
In conclusion, judicial restraint is desirable in a democracy as it empowers elected officials to make policy decisions and preserves the integrity of the judicial system. However, the dynamic nature of society and the complexity of constitutional interpretation mean that there is a delicate balance between restraint and activism. Ultimately, both approaches have their merits, and the ideal judicial philosophy may lie in finding a harmonious middle ground between the two.
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Judicial activism is anti-majoritarian and can be a check on legislative overreach
Judicial activism is a judicial philosophy that asserts that judges should go beyond the applicable law to consider the broader implications of their decisions. It is the idea that judges should actively interpret and shape the law rather than simply applying it as it is written. Judicial activism is often seen as anti-majoritarian and a check on legislative overreach.
Judicial activism is considered anti-majoritarian because it can be used to counterbalance the effects of transient majoritarianism. In other words, judicial activism can grant more power to a branch of the government that is not directly subject to the electorate, preventing the majority from dominating or oppressing any particular minority through its elective powers. For example, in the United States, the Supreme Court has used judicial activism to strike down provisions of federal election law that limited corporate and union spending on political advertisements. This decision was controversial, but it illustrates how judicial activism can be used to check the power of the majority and protect the rights of individuals.
Another example of judicial activism as a check on legislative overreach is the Keshavananda Bharati case in India. In this case, the Supreme Court held that the government's power to amend the constitution was not unlimited and that certain "basic features" of the constitution could not be amended. This ruling ensured that the government did not exceed its constitutional authority and protected the rights of individuals.
While judicial activism can be a necessary check on legislative overreach, it is not without its critics. Some argue that judicial activism usurps the power of the elected branches of government and damages the rule of law and democracy. Judges are unelected officials, and their rulings may not always align with the will of the people or the intentions of the constitution. This can lead to a breakdown of the checks and balances essential to maintaining a healthy democracy.
In conclusion, judicial activism is a complex and controversial issue. While it can be a powerful tool to protect the rights of individuals and ensure that the government does not exceed its constitutional authority, it can also upset the balance of power between the branches of government. Ultimately, the role of judicial activism in a democracy depends on a judge's ability to make sound public policy decisions and the interpretation of the law.
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Judicial restraint is the refusal to strike down acts, leaving the issue to ordinary politics
Judicial restraint is often considered the opposite of judicial activism. Judicial activism is the assertion of the power of judicial review to set aside government acts. Judicial restraint, on the other hand, is the refusal to strike down such acts, leaving the issue to ordinary politics. In other words, it is the belief that judges should not act as policymakers and should instead defer to the legislative intent and a strict interpretation of the law.
Judicial restraint is considered desirable in a democracy because it allows elected officials to play the primary role in making policy. This view holds that judges are ill-equipped to make sound public policy decisions and that judicial activism risks upsetting the balance between the three branches of government. Judicial restraint advocates argue that judges should only strike down laws that are clearly unconstitutional and should otherwise exercise restraint, leaving the political process to operate through elected representatives.
However, critics of judicial restraint argue that it can result in the oppression of minorities or the capture of the legislature by special interest groups. They also argue that activism is necessary to correct injustices and promote needed social change, especially when the other branches of government fail to act. In certain cases, judicial activism is seen as a necessary check on legislative overreach, such as in the landmark civil rights case of Brown v. Board of Education.
The terms "judicial activism" and "judicial restraint" are often used in political rhetoric, and their usage can vary depending on the ideological perspective and the composition of the Supreme Court's docket. Accusations of activism or restraint are often motivated by ideology rather than a fair-minded assessment of court decisions. The debate over judicial activism and restraint is shaped by the political time, with supporters of the dominant party recognising the importance of judicial review to promote and protect their ideological commitments.
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Judicial restraint is important to avoid upsetting the balance between the three branches of government
Judicial restraint is the refusal to strike down government acts, leaving the issue to ordinary politics. It is considered the opposite of judicial activism, which is the assertion of the power of judicial review to set aside government acts. Judicial restraint is important to avoid upsetting the balance between the three branches of government, as it allows the people, through their elected representatives, to make policy choices. This may result in good outcomes or majoritarian oppression of minorities.
In a democracy, elected officials should play the primary role in making policy. Courts that are insufficiently deferential to elected legislators and executives may usurp that role and unduly constrain democratic self-governance. Judicial restraint offers limiting procedural devices, such as the canon of constitutional avoidance, which directs courts to decide constitutional questions only as a last resort. This means that if a case can be decided on multiple grounds, judges should prefer one that does not involve a constitutional issue.
Another doctrine that promotes procedural restraint is the requirement of standing, which restricts access to federal courts to those who can demonstrate a concrete injury caused by the defendant and redressable by a judicial decision. Federal courts will not hear suits pursuing generalized grievances or seeking abstract legal guidance. This aspect of restraint is linked to the view of courts as institutions designed to resolve disputes rather than to promulgate legal norms.
Judicial restraint is also important because it allows for the protection of constitutional rights, particularly those of minorities. A restrained court may decline to interfere with serious infringements on such rights. For example, in the case of Brown v. Board of Education, the Supreme Court overturned Plessy v. Ferguson, ruling that segregation was unconstitutional. This was a landmark decision for civil rights, but it also upset the balance between the three branches of government, as it invalidated a legislative act.
In conclusion, judicial restraint is important to avoid upsetting the balance between the three branches of government by allowing elected representatives to make policy choices, promoting democratic self-governance, and protecting constitutional rights. However, it is important to note that there may be times when judicial activism is necessary to correct injustices and promote needed social change, especially when the other branches of government fail to act.
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Frequently asked questions
Judicial activism is the assertion of the power of judicial review to set aside government acts. Judicial activists are seen to abandon their responsibility to interpret the Constitution and instead decide cases to advance their preferred policies. Judicial activism is considered necessary to correct injustices and promote needed social change.
Judicial restraint is the refusal to strike down government acts, leaving the issue to ordinary politics. Judges are said to exercise judicial restraint if they are hesitant to strike down laws that are not obviously unconstitutional. Judicial restraint is considered desirable because it allows the people, through their elected representatives, to make policy choices.
Judicial activism and judicial restraint are opposing views on the interpretation of the Constitution. Judicial activism asserts the power of judicial review to set aside government acts, while judicial restraint urges judges to refrain from deciding legal issues, especially constitutional ones, unless necessary to resolve a concrete dispute. Judicial restraint is considered to allow elected representatives to make policy choices, while judicial activism enforces the view that the Constitution must be adapted to keep up with a changing world.
