Judicial restraint/activisim

Define Judicial activism

• Approach to judicial decision making that holds the judges should use their position to promote desirable social ends even if that means overturning decisions of elected politicians and their own precedents.

• Reforming the US society through judgements instead of deferring to the President or Congress - they see it as defending people rights

Give examples of liberal activism

• Brown v Board of Education (1953) - overturned the previous precedent of Plessey v Ferguson in the 19th century (equal = separate)

• Obergefell v Hodges (2015) - overturning existing state provisions

Give examples of conservative activism

• Citizens United v FED (2010) - strike out laws on campaign finance

• DC v Heller (2008) - right to bear arms was secured as hand gun banning was unconstitutional (strict constructionist)

• Karnoski v Trump 2019 - held up the transgender ban in the militia stating that there was no mention of transgender people in the constitution

• Dobbs v Jacksons Women Health (2023) - made abortion not a federal right

What are the criticisms of judicial activism?

• Politicians in robes - judges are law making even though they’re unelected

• Not modernising, just ideology - personal agenda

• Extending rights - things not in the constitution should go to Congress

Define judicial restraint

• An approach to judicial decisions-making that states judges should defer to the legislative and executive branches and to precedent established in previous court decisions.

• A restrained court defer to elected officials and will not overturn previous rulings.

Give an example of liberal restraint

Whole Woman's Health v Hellerstedt (2016) - continuing defence of Roe v Wade

Give an example of conservative restraint

Bucklew v Precythe (2019) - court upheld the defence of execution and the 8th Amendment (capital punishment)

Criticism of judicial restraint

• Too narrow a focus on terms and words that were written many years ago - meaning and interpretations are dependent on the justices

• Original meanings unclear - for example 2nd Amendment and the militia clause

• Is restraint consistently applied?

• Poplar tyranny - Founding fathers did not support this

Define an imperial judiciary

The idea that the SC is overly powerful due to a lack of effective checks and balances placed on its power

What makes the SC largely unaccountable?

• Unelected nature and ability to make large scale and impactful decisions. The power of judicial review which often amounts to a final say on issues especially if they state a legislation is unconstitutional because to overturn it, it requires an amendment.

• Are judges legislating from the bench without fear of the electorate.

What is the argument against judicial imperialism?

• The constitution keeps them within the rule of law because they have to stay within the bounds of that document.

• Also the threat of impeachment also places the judges firmly in the judicial camp because there is a political method of holding them to account, should they stray too far from their legal duties.