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Judicial Restraint vs. Judicial Activism

The role of the judiciary branch has been up for debate for centuries. This is mostly due to no specific mention of the judiciary's exact task in the Constitution, except the checks and balances and separation of powers left behind by the Founding Fathers.

Another factor in the debate is how the Constitution is interpreted. The method of interpretation is highly subjective and leads to further arguments on the role and power of the judicial branch.

One last factor is the personal ideology of the judges. Personal views can affect a judge's judgment significantly to the point of questioning the judge's basis for decision-making.

There are six main methods of interpreting the Constitution. One is textualism, or similarly, strict constructionalism. This means solely the text is referred to.

For example: "Congress shall make no law… abridging freedom of speech" means exactly "no law." However, it has the drawback that not exactly everything is stated in the Constitution.

Another similar method of interpretation is contextualism, which is attempting to derive the meaning from the text. Its main drawback, however, is subjectivity. "Freedom of speech" can be interpreted in over a hundred different ways. Is treason protected? Is flag-burning protected? Public school prayer? These kinds of arguments have all been hot topics of debate.

Two other methods are originalism and structuralism. Originalism attempts to discover the original intent of the framers while structuralism attempts to refer to the structure of government (checks and balances, separation of powers, etc.). However, both methods are highly subjective. It is difficult to determine the framers' original intent when they purposely left the Constitution vague and ambiguous. It is difficult to base decisions on structuralism without hard concrete proof like textualism and contextualism.

Two final methods are doctrinalism and developmentalism. Doctrinalism is the basing of decisions on previous case precedents or stare decisis. This is a standard approach of the judicial system.

For example Plessy v. Ferguson held against many challenges until 1954's Brown v. Board of Education decision. Developmentalism is the add-on to doctrinalism in the sense that historical events and political culture are included for interpretation. However, both methods are negative in the sense that they both detract attention from the Constitution.

There have been literally hundreds of landmark cases, but only a handful that have been brought up in the judicial restraint-activism debate. Judges have been noticeably making use of contextualism until the progressivist era.

For example: Plessy v. Ferguson was passed on the basis that the Constitution did not mention or intend that blacks have the same citizenship rights as whites and that segregation was unconstitutional. The ruling was not overturned until Brown v. Board of Education, which has been touted because critics say that the judges "overstepped their bounds" or became too activist in their ruling.

There are many cases where critics have argued that the judges and jurors were too activist in their decision, and possibly too self-centered on their personal views. Some examples include Roe v. Wade concerning abortion. The Supreme court ruled that abortion must be legal to protect the woman's health and privacy. The court ruled that it was unconstitutional for the government or anyone else to intervene in another person's personal affairs. In the Court's opinion, nobody could tell a woman that she could or could not have a child.

Another debated ruling includes Lawrence v. Texas where the court ruled that consensual homosexual sex was legal and protected by the Constitution on the basis of personal liberty. Lochner v. New York was a debated case before the progressivist era.

The Supreme court once ruled that minimum wage laws were unconstitutional because they infringe on one's right to negotiate business contracts.

Other highly debated cases include Mapp v. Ohio dealing with search warrants and unwarranted evidence, Roper v. Simmons dealing with the death sentence and minors (under 18), and Miranda v. Arizona dealing with the accused knowing their (Miranda) rights and what they are accused of.

Other things to consider are the judges' ideology. Conservative judges are likely to be more conservative in their decisions, such as Justice Felix Frankfurter. They will be more inclined to view the Constitution as a definite document, practice judicial restraint, be pro-life, and against the separation of church and state, viewing morality as an important factor.

Liberals, on the other hand, such as chief justice Earl Warren, view the Constitution as a living document that is dynamic. Liberal judges are generally activist in their decisions, pro-choice, and a proponent of the separation of church and state.

Moderates, obviously, would be a mix of both.

However, that is not to say that judges should be confined to rigid categories. Conservative judges have sometimes practiced judicial activism and liberal judges sometimes practice judicial restraint.

The role and power of the judicial branch has long been debated. Are judges supposed to practice judicial restraint, merely interpreting the Constitution or are judges supposed to practice judicial activism, proposing new laws and precedents, which may or may not be based on the Constitution?

Additionally, how exactly is the Constitution supposed to be interpreted? One thing that is certain is that judges should not lie on the ends of the spectrum. Too much judicial restraint could lead to more decisions such as Plessy v. Ferguson and Dredd Scott v. Sandford, denying African Americans equal rights, whereas too much judicial activism could lead to more decisions such as Roe v. Wade and Lawrence v. Texas, adding rights and lessening restrictions but striking down conservative views.

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14y ago
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Judicial activism and judicial restraint are opposite approaches to legal and constitutional interpretation used as the basis for decision-making in a court case. The terms are usually, but not always, applied to US Supreme Court decisions and to the ideological leaning of certain justices or Courts as a group.

Judicial Activism implies the Court majority applied personal or political ideologies that go beyond the intent of the legislation or the constitutional amendment(s) being used to justify the decision. The underlying belief in accusations of "judicial activism" is that the Court overstepped its authority by "legislating from the bench," thereby violating the constitutional separation of powers.

Judicial Restraint implies the Court majority acceded to the wishes of Congress, upholding legislation and adhering to the doctrine of stare decisis (relying on precedents). Judicial restraint is commonly associated with the concept of "maintaining the status quo."

As criticism, both judicial activism and judicial restraint may be based on the political bias of the person applying the label, and may or may not have a foundation in reality. The term, "judicial activism," is usually used as a pejorative, and is often thought to be associated with liberal/progressive Courts or decisions (the Warren Court is usually cited as activist), but conservative Courts are just as likely to be activist as progressive courts.

One recent example of conservative judicial activism is the US Supreme Court's decision in Citizens United v. Federal Election Commission, 555 US ___ (2010). In finding for the petitioner, Citizens United, the Court amended the Bipartisan Campaign Reform Act of 2002 to loosen restrictions on campaign financing and promote the First Amendment rights of corporations. In issuing its decision, the conservative faction of the Roberts Court advanced the cause of "corporate personhood" by allowing large (even multinational) corporations the ability to drown out the voices of the common electorate through the production and distribution of quasi-media messages promoting or denigrating targeted political candidates. In granting corporations this ability, the Court opened the door to making corporations the most influential purveyors of public opinion, without requiring truthfulness or accountability. Since the Republican Party is typically aligned with big business interests, progressives (and many moderate conservatives) consider this decision a dangerous example of conservative judicial activism.

Justice Stevens wrote a thoughtful and comprehensive dissent to the majority opinion, which was joined by Justices Ginsberg, Breyer and Sotomayor.

For more information, see Related Questions, below.

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13y ago

There is no concrete answer to this question.

First, the composition of the Court changes over time, as does its focus and the majority philosophy.

Second, the concepts of "judicial activism" and "judicial restraint" are subjective, and the perspective varies from one person to the next.

Third, the Court may make decisions during a single Term where some could be subjectively construed as exercising "activism" and others as exercising "restraint."

Fourth, it's impossible to make a generalization about the US Supreme Court's jurisprudence over its entire history.

For more information, see Related Questions, below.

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13y ago

Judicial activism and judicial restraint are opposite approaches to legal and constitutional interpretation used as the basis for decision-making in a court case. The terms are usually, but not always, applied to US Supreme Court decisions and to the ideological leaning of certain justices or Courts as a group.

Judicial Activism implies the Court majority applied personal or political ideologies that go beyond the intent of the legislation or the constitutional amendment(s) being used to justify the decision. The underlying belief in accusations of "judicial activism" is that the Court overstepped its authority by "legislating from the bench," thereby violating the constitutional separation of powers.

Judicial Restraint implies the Court majority acceded to the wishes of Congress, upholding legislation and adhering to the doctrine of stare decisis (relying on precedents). Judicial restraint is commonly associated with the concept of "maintaining the status quo."

As criticism, both judicial activism and judicial restraint may be based on the political bias of the person applying the label, and may or may not have a foundation in reality. The term, "judicial activism," is usually used as a pejorative, and is often thought to be associated with liberal/progressive Courts or decisions (the Warren Court is usually cited as activist), but conservative Courts are just as likely to be activist as progressive courts.

One recent example of conservative judicial activism is the US Supreme Court's decision in Citizens United v. Federal Election Commission, 555 US ___ (2010). In finding for the petitioner, Citizens United, the Court amended the Bipartisan Campaign Reform Act of 2002 to loosen restrictions on campaign financing and promote the First Amendment rights of corporations. In issuing its decision, the conservative faction of the Roberts Court advanced the cause of "corporate personhood" by allowing large (even multinational) corporations the ability to drown out the voices of the common electorate through the production and distribution of quasi-media messages promoting or denigrating targeted political candidates. In granting corporations this ability, the Court opened the door to making corporations the most influential purveyors of public opinion, without requiring truthfulness or accountability. Since the Republican Party is typically aligned with big business interests, progressives (and many moderate conservatives) consider this decision a dangerous example of conservative judicial activism.

Justice Stevens wrote a thoughtful and comprehensive dissent to the majority opinion, which was joined by Justices Ginsberg, Breyer and Sotomayor.

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6y ago

Judicial activism describes Supreme Court decisions that have the effect of formulating policy instead of merely interpreting the Constitution

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Q: What is the debate between judicial restraint and judicial activism?
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What is judicial restraint?

Judicial restraint is the philosophy that judges and justices should defer to written legislation whenever possible, if it is not in conflict with the Constitution. A justice who uses judicial restraint tends to take a narrower view of the Constitution and does not attempt to broaden the definition of Amendments to fit a particular social or political agenda. The opposite of judicial restraint is judicial activism. For more information on the debate between judicial activism and judicial restrain, see Related Links, below.


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Judicial activism is the tendency to interpret the Constitution or law in a way that goes beyond the original authors' intent, in order to influence public policy. Activism can be either conservative or liberal: Conservative activism tends to narrow the scope of interpretation to restrict government or individual rights; liberal activism tends to broaden the scope of interpretation to expand individual rights in keeping with progressive social norms.Martin Garbus, in his book Courting Disaster: The Supreme Court and the Unmaking of American Laws, claims the Marshall Court, New Deal Court, Warren Court and Rehnquist Court all made decisions that had their basis in political agendas, rather than laws.Often, charges of judicial activism mean the Court or justice has made a decision with which the accuser disagrees. Therefore, progressives accuse conservatives of being judicial activists when they interpret the Constitution to support conservative political ideologies; conservatives accuse progressives of being judicial activists when they interpret the Constitution to support progressive political ideologies.Conversely, when a Court upholds an earlier precedent under the doctrine of stare decisis, or refuses to declare a challenged act of Congress unconstitutional, or otherwise upholds the status quo, they are said to be practicing judicial restraint.The debate between judicial activism and judicial restraint tends to reveal as much about the opinions of the person making the accusation as the tendencies of the Court.Commonly Cited Examples of Judicial ActivismMarbury v. Madison, 5 US 137 (1803)Dred Scott v. Sanford, 60 US 393 (1857)Lochner v. New York, 198 US 45 (1905)Brown v. Board of Education, 347 US 483 (1954)Griswold v. Connecticut, 381 US 479 (1965)Loving v. Virginia, 388 US 1 (1967)Roe v. Wade, 410 US 113 (1973)A+LS: A justice allows his or her personal opinions to influence a decision


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