Judicial Review, Activism and Restraint

Judicial Review

The power of the US SC to declare acts of congress, actions of the executive or actions of state government, unconstitutional

Origins of Judicial review

Marbuy v Madison 1803 where the SC gave itself the power

Chief Justice Charles Evans Hughes statement on judicial activism

‘The constitution is what the judges say’

Judiciaries political importance

Civil Rights and liberties

Aspects of politics the SC has been involved in

Abortion, racial minorities, capital punishment, gun control and freedom of speech

George. W Bush v Albert Gore (2000)

SC ruled:

a recount scheme by Florida unconstitutional as it violated the equal protection clause

any recount would take too long with unconstitutional

handing Bush the win in the election

Roe v Wade (1973)

Court stated that women have a constitutional right to choose to have an abortion

Judicial activism

An approach to judicial decision making which holds that judges should use their position to promote desirable social ends

Brown v Board of Education of Topeka (1954)

outlawed racial segregation in public schools

Activist Court

sees itself leading the way in the reform of American society

this could be seen in the 1950s and 60s

T.R. van Geels statement in (2008)

‘I will seek to be a player equal to the other branches in shaping policy’

Problem of judicial activism

any decision disagree labelled activism

‘Imperial judiciary’

Judicial restraint

Judges defer to legislative and executive branches and to precedent established in previous Court decisions

Stare decisis

A legal principle that judges should look at past precedents as a guide wherever possible