judicial restraint vs judicial activism

Judicial Restraint: approach to judicial decision making, holds that a justice should defer to executive + legislative branch - which are politically accountable to the people. Also refers to idea that justices should accept ruling established in previous court decisions.

Judicial Activism: approach to judicial decision making, holds that a justice should use position to promote desirable ends.

Roberts and Judicial Restraint

• he is associated with judicial restraint

• 2012 NFIB v Sebelius which reviewed the Affordable Care Act which imposed legal requirements on states to provide health insurance (example of judicial restraint)

  • took different approach to other justices - classified ACA as federal tax

    • since federal tax is allowed under constitution, deemed law acceptable

  • this was unusual + went against expectation that Roberts would side w conservative bloc. seems likely Roberts felt it was unacceptable to overturn the flagship policy of elected president

• also consistent in Roberts’ other rulings

  • he said Dobbs v Jackson (2022) had gone too far in overturning Roe v Wade (1972).

  • “surely we should adhere closely to the principles of judicial restraint here”

Judicial Activism

• Activism means justices are applying their own personal ideology and giving rulings which overrule elected politicians or established judicial precedent.

• The Warren Court (1953-1969) was seen as practising Liberal Activism.

  • Its rulings overturned southern state practice – Brown v Board of Education etc.

• Liberal activism is seen to have continued.

  • Roe v Wade (1973) and Obergefell v Hodges (2015) are examples of this.

• Now there is a conservative majority, we are starting to see Conservative Activism.

  • This is seen in the SC reaction to freedom of religion clauses in the First Amendment where the Roberts Court has frequently protected conservative and Christian values in its interpretation of the Constitution, overturning state law.

Roberts and Religion

• Fulton v Philadelphia (2021): The State of Philadelphia allows certified organisations to provide foster care services. To promote equality, the state would not allow the Catholic Church to be involved because of its stance on same-sex couples. The court ruled 9-0 in favour of the church, ruling that the ban contradicted the Free Exercise of Religion clause in the First Amendment.

• Carson v Maikin (2022): The State of Maine provided educational funding in the form of school vouchers which parents could use to contribute to payment for private school fees, but didn’t allow them to be used in religious based schools. This was overturned by 6-3. Minority opinion was in favour of Maine stating that it broke the established principle of separation of church and state. The ruling was thus mistaken because it required state governments to fund religious institutions.

• Kennedy v Bremerton School District (2022): Joseph Kennedy, a school football coach, regularly held prayers on the pitch after matches and was asked to stop doing this by the school. The court ruled 6-3 in favour of Kennedy, protecting his first amendment right – freedom of expression. Sotomayor, in the minority opinion, cited the established precedent of Engel v Vitale (1962) saying the court had consistently recognised that school officials leading prayers is constitutionally impermissible. 

Is judicial restraint superior to judicial activism?

constitutional duty

• can say restraint is superior bc activism involves justices overstepping constitutional role. undermines representative democracy. unaccountable justices should not establish important societal principles for decades to come

  • seen in NRLB v Sebelius - where restraint was more desirable than the activist approach. was a flagship elected policy (ACA) + the court had no right to interfere with that

authority of the court

• without respect of Constitution can break down the consensus of the political process. roe v wade seen as being based on values rather than the constitution. 50 years later overturned it which undermined constitution further. ignored per cent of roe v wade suggested constitution had no objective authority - almost like making it up all along. seems dependant on the judges opinion. SC seen as based on values not constitution following Roe v Wade so faced criticism.

ideological bias

• Roberts court appears to be pursuing conservative Christian values and in doing so are undermining the role of the Constitution in ensuring that governments stay out of religion and allow individuals to choose

judicial restraint aligns more closely with the original intentions of the Constitution, envisioned judiciary as equal branch of government but not necessarily the ultimate authority on constitutional interpretation. The establishment of judicial review in Marbury v. Madison (1803) was not explicitly outlined in the Constitution but was a judicially created precedent. Critics argue that this self-assumed power could be seen as undemocratic because it allows unelected judges to overturn laws passed by democratically elected representatives. Judicial restraint ensures that courts defer to the decisions of the legislative and executive branches unless a law is clearly unconstitutional. This approach respects the principle of separation of powers and prevents the judiciary from overstepping its role by making policy decisions, which should be the responsibility of elected officials accountable to the public. By exercising restraint, the judiciary avoids undermining the authority of other branches and preserves the integrity of democratic governance.

failure of constitutional duty

• activism superior bc restraint means court fails constitutional duty. allows court to break constitutional principles. argument that constitution does not place elected politicians at top of list. puts provision of checks and balances at top of list therefore court deferring to president on matters of military action ex. are examples of where restraint means court has failed in constitutional duty. court deferring to president ranging from military action to the Patriot Act and Trump’s ‘Muslim Ban’.

power and rights

• restraint also is not appropriate because it always hands power to the most powerful. individual fighting institution will always lose. particularly on civil liberties. every federal state dispute between 1936 and 1995 involving commerce was won by federal government. Supreme Court undermined federalism.

ideological bias

• restraint is often based on conservative. not actual genuine restraint justices arent holding back they are going off decisions made by politicians because they are ideologically supportive of politicians. merely demonstrating their agreement. Karnoski v Trump (2019) court agreed with trump - more than likely bc they were agreeing with it due to own values not because they were exercising judicial restraint.

summary

• judicial restraint is superior because it promotes confident in court through objectivity and also seen to be more neutral than being activists however activism can be seen as superior because it carries out the constitutional duties of the court whereas restraint has failed to regulate the president. also allows to regulate and protect rights more and promotes modern values. can reflect majority opinion of modern values whereas restraint could be masking judicial bias.