Judicial activism and judicial restraint

Question 1

Give the context for the debate around judicial activism

Answer 1

In a democracy, the people rule themselves through officials who make decisions on their behalf (deliberative democracy)

Within a deliberative democracy, the judiciary plays an important role in deciding how the laws and constitution apply in specific cases

Controversy arises if the judiciary, which is unelected and unaccountable, overturns the actions of directly elected officials from the executive or legislature

This is the context for the debate around judicial activism

Question 2

What type of judiciary did the FF want to create?

Answer 2

The FF wanted an independent judiciary free from political pressure, so that judges could decide on cases based purely on legal merit, with no regard to political favour

This is why federal judges are given life tenure and congress cannot alter judicial salaries

Question 3

When is the court accused of activism?

Answer 3

Whenever the SC has made controversial and what many see as political decisions, accusations regarding judicial activism have appeared. A famous example of this was Marbury v Madison (1803), when the SC first stated a federal law unconstitutional

Question 4

What are activist judgements associated with?

Answer 4

Activist judgements are associated with a loose and liberal view of the constitution

An activist court is said to be one that leads the way of reform in society

Question 5

What has been the main era of judicial activism?

Answer 5

The Court under Chief Justice Earl Warren was said to be activist in the 1950s and 1960s, in trying to move along the rights of black people and citizens

Question 6

How does an activist judiciary see itself in relation to the other branches?

Answer 6

Judicial activism sees the judiciary as being an equal partner with the other two branches of government

Question 7

How does professor Lino Graglia describe judicial activism?

Answer 7

Judicial activism is ‘the practise of disallowing policy decisions by other government institutions or officials that the constitution does not strictly prohibit’ (Professor Lino Graglia, 1996)

Question 8

What will activist judges generally not do?

Answer 8

Activist judges will not defer to the other branches of government

Judicial activism can be understood as an attitude which says ‘I’m in charge, and I will seek to be a player equal to the other branches in shaping policy’

Question 9

What has judicial activism led to?

Answer 9

Judicial activism has led to a large number of congressional laws being declared unconstitutional

Question 10

How is judicial activism still a source of debate?

Answer 10

How activist the court should be is still a source of debate

Question 11

How is the term ‘judicial activism’ often used incorrectly?

Answer 11

To complicate things, the term ‘judicial activism’ is often used about any decision and individual or group is opposed to or with which they disagree. In this view activist judges are simply judges which the accuser sees as having made the wrong decision

Question 12

What will critics of judicial activism often say?

Answer 12

Critics of activism might say that the courts are legislating from the bench or make the claim that there is now an imperial judiciary

Question 13

What does the term ‘imperial judiciary’ mean?

Answer 13

The term imperial judiciary is the idea that the courts, especially the SC, have become too powerful through JR and its impact on policy

Question 14

What did Obama say about judicial activism?

Answer 14

In 2010, Obama warned against both liberal and conservative judicial activism when it circumnavigated congress: ‘It used to be that the notion of an activist judge was one that ignored congress and democratic processes and chose to impose judicial solutions on problems instead of letting the problem work itself through politically. In the 60s and 70s it was the feeling that the liberals were guilty of this approach. What you’re seeing now, I think, is a conservative jurisprudence that often makes the same mistake’

Question 15

What does Kermit Roosevelt think about judicial activism?

Answer 15

‘Perceptions of appropriate judicial behaviour are invariably effected by ideology’. ‘People call the court activist because they disagree with its decisions. But the kind of people using the word activist are generally disagreeing on political grounds; the decisions they see as illegitimate are the ones whose results they do not like (Quotes from Kermit Roosevelt from his 2006 scholarly book ‘The Myth of Judicial Activism’)

Question 16

Why can it be argued that judicial activism is just the courts doing their job?

Answer 16

We must keep in mind that it is the job of the courts to limit the other branches if they exceed the powers granted to them by the constitution

Question 17

What is the main concern behind judicial activism?

Answer 17

The concern with activism is that unelected judges might be appearing to be leading the way in policy making

Question 18

Why do the quasi legislative powers of judges only go so far in practise?

Answer 18

Judges know that if their decisions stray too far for too long outside of mainstream public opinion, they will be forced to moderate their decisions or lose their only real method of enforcement – the acceptance of their decisions by the populace

Question 19

Give 3 examples of liberal judicial activism

Answer 19

Brown vs Board of Education of Topeka (1954) outlawed racial segregation in public schools

Roe v Wade (1973) asserted that women have the constitutional right to an abortion

Obergefell v Hodges (2015) effectively created new legislation legalising gay marriage

Question 20

Give three examples of conservative judicial activism

Answer 20

Bush v Gore (2000) effectively handed the presidency to Bush

Citizens United vs Federal Election Commission (2010) overturned the Bipartisan Campaign Finance Reform Act (2002), arguing that the ban on interest groups making ‘election communication’ was a violation of their first amendment right to free speech

DC v Heller (2008) explicitly extended the provisions of the 2nd amendment to allow the ownership of firearms even if this was not related to membership of a local militia

Question 21

What does the term ‘judicial restraint’ describe?

Answer 21

This term describes the court when it is more inclined to accept the views and decisions of elected officials

Question 22

What will judicial restraint mean that the court does?

Answer 22

A court exercising judicial restraint will tend to look to defer to past decisions wherever possible and will be more inclined to leave things as they are

Question 23

What will a court exercising judicial restraint place great importance on?

Answer 23

Puts a good deal of importance on judicial precedent. This is the idea that past cases should largely set the precedent for new cases, this principle is known as stare decisis

Question 24

What is stare decisis?

Answer 24

Stare decisis is a legal principle that judges should look to past decisions as a guide wherever possible. The literal translation is ‘let the decision stand’

Question 25

How does a court exercising judicial restraint see itself in relation to the other branches?

Answer 25

Judicial restraint sees the courts as being somewhat deferential to the other branches of government, as these branches have democratic legitimacy

The court will be less likely to declare things unconstitutional

Question 26

What alternative term do some prefer to ‘judicial restraint’?

Answer 26

Some writers prefer the term ‘judicial deference’, as this would be the true opposite to ‘judicial activism’

Question 27

Give an example of liberal judicial restraint

Answer 27

Whole Women’s Health vs Hellerstedt represented a continuation of Roe v Wade (1973)

Question 28

Give an example of conservative judicial restraint

Answer 28

The main example is the court’s continual defence of execution and its argument that it is the responsibility of the prisoner, rather than the state, to demonstrate that execution demonsrates ‘cruel and unusual’ punishment and therefore contravenes the 8th amendment. In Bucklew v Preycthe (2019), recent precedents were followed, and it was ruled that the prisoner should be executed

Question 29

List the criticisms of judicial restraint

Answer 29

A narrow focus on the original text alone limits the meaning and interpretations of a document written over two hundred years ago, by a small group who were not very diverse in their background and outlook

The original meaning of the constitution is often unclear. For example, does the 2nd amendment only regard being involved in a state militia?

Many of those who advocate it are okay with discovering new rights if they are in line with their political persuasions. An example of this was Citizens United vs Federal Election Commission (2010)

Adopting a narrow view of entrenched rights could lead to a tyranny of the majority, a big fear for the FF. The courts need to be active in defending rights that are unpopular or controversia

Question 30

List the criticisms of judicial activism

Answer 30

Allowing justices too much leeway in their interpretations effectively makes them unelected legislators. ‘When politicians don black robes and usurp power they do not have, they should be called out for what they are – petty tyrants’ (conservative commentator Pat Buchanan)

While defenders argue that it allows the constitution to be updated, critics would argue that this happens in a way that reflects the justices own personal views

Its approach of extending constitutional rights into areas completely unconsidered by the FF, like abortion and LGBT rights undermines the power and function of elected representatives, as such issues should be decided upon in congress rather than the courts

Seen as a trojan horse of liberalism, ushering in progressive reforms that otherwise would not have been enacted