Is Judicial Restraint superior to judicial activism??
Which approach best allows the court to carry out its constitutional duty?
Y:
Restraint allows elected politicians to have greater control. Justices should not be overturning decisions made by politicians unless they are unambiguously unconstitutional
This is more democratic. It promotes representative democracy
Founding Fathers did not necessarily intend Supreme Court to have the final say- this was an assumed power created during Marbury v Madison
N:
Restraint can lead to a failure of the court to carry out its constitutional duty in regulating politicians
Restraint means that the court fails to regulate the president especially foreign and security policy
Founding Fathers did not place democracy as highest or sole consideration- politicians must conform to constitutional standards and activism best ensures courts promote checks and balances
Despite provision of constitutional rights and checks and balances, court has often deferred to president. This ranges from presidents’ unilateral decisions to initiate military action even without congressional support and Trump’s so-called ‘Muslim ban’, which court upheld
Which approach best promotes the authority of the Court and the Constitution?
Y:
Restraint promotes greater confidence in the court and its objectivity
Activism can equally be used to undermine its rights where they are already established by court precedent or acts of Congress
Supreme Court criticised after Roe v Wade (1973), as many saw this as a ruling based on values rather than one based in Constitution. Perhaps contradictorily, authority of court was undermined further when court overturned this decision in Dobbs v Jackson (2022). Ignoring the established precedent of Roe, based on what most perceive as ideological bias, suggests that Constitution has no objective authority; it means merely whatever justices wish it to be. This is exactly what Roberts appears to be concerned about when he criticises his fellow Conservatives for going too far in overturning Roe v Wade.
N:
Restraint may lead to concerns that powerful institutions are not being regulated and that rights are not protected
Activism can be used to promote modern values and respect support for emerging right
Which approach is the most neutral or least biased?
Y:
Activism is by definition biased and will always be less neutral than restraint
Activism has been practiced by both conservatives and liberal justices who have sought to enforce their own political agenda
This has led to claims of an imperial judiciary
N:
Apparent restraint often masks judicial bias. Justices are motivated more by achieving their goals than being restrained- upholding politician’s views or precedent when it fits their value system
Activism can be acceptable when it reflects majority public opinion or modern values