judicial activism vs restraint

judicial restraint: an approach to judicial decision making that holds that a justice should defer to the executive and legislative branches, which are politically accountable to the ppl.

  • also refers to the idea that justices should accept the ruling established in previous court decisions

judicial activism: an approach to judicial decision-making that holds that a justice should use their position to promote desirable ends

judicial restraint examples - Robert

2012 nfib v sebelius

  • reviewed the Affordable Care Act which imposed legal requirements on states to provide health insurance

  • Roberts took diff approach to other Justices

    • classified ACA as federal tax » federal tax allowed under Constitution » law therefore acceptable

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2022 dobbs vs jackson

  • said this case had gone too far in overturning roe vs wade (1972)

judicial activism

  • activism means justices applying personal ideology n giving rulings which overrule elected politicians or established judicial precedent

  • warren court (1953-1969) seen as practising Liberal Activism

    • rulings overturned southern state practice » Brown v Board of Education, etc

  • liberal activism seen to have continued

    • roe v wade (1973) and obergefell v hodges (2015) are examples of this

  • conservative majority = conservative activism

    • seen in SC reaction to freedom of religion clauses in the First Amendment » Roberts often protected conservative n Christian values in Constitution’s interpretation, overturning state law

Roberts n religion

case:

outcome:

Fulton v Philadelphia (2021)

state of Philadelphia allows certified organisations to provide foster care service. to promote equality, the state would not allow Catholic Church to be involved cos of stance on same-sex couples. court ruled 9-0 in favour of church, ruling that the ban contradicted the Free Exercise of Religion clause in the 1st 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 priv school fees, but didn’t allow them to be used in religious-based schools. this was overturned by 6-3. minority opinion in favour of Maine stating that it broke the established principle of separation of church n state. the ruling was thus mistaken coz it required state governments to fund religious institutions

Kennedy v Bremerton School District (2022)

Joseph Kennedy, 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?

judicial restraint is superior

judicial activism is superior

constitutional duty

  • NLRB v sebelius: where restraint was more desirable than the activist approach

failure of constitutional duty

  • court has often deferred to the President, ranging from military action to the Patriot Act and Trump’s ‘Muslim Ban’

authority of court

  • SC had criticism following Roe v Wade coz it was seen as being based on values and not Constit. arguably overturning it then undermined the Constit further, as it suggested the Constit had no objective authority

power and rights

  • every federal-state dispute between 1936 and 1995 concerning commerce was won by the Fed Govt

ideological bias

  • Roberts Court appears to be pursuing conservative Christian values, and in doing so are undermining the role of the Constit in ensuring the govts stay out of religion and allow individuals to choose

ideological bias

  • Karnoski v Trump (2019)

Ideally judicial restraint should be superior in the objective upholding of the constitution, because with judicial activism relies on pre-conceived ideas of politics, rather than on the role of the judiciary which is to uphold legislation for the sake of the people, situation to situation.

restraint for n against

benefits:

disadvantages:

Respect for Legislative and Executive Decisions: safeguards the balance of powers by limiting the judiciary's intervention in other branches' decisions

Protection of Individual Liberties: Excessive Judicial Restraint could complicate the judiciary's role in upholding individual liberties against majoritarian principles

Precedent consistency ensures uniform justice and avert caprice or bias

Fostering an outmoded legal system unadapted to societal realities

Consistency in Law: promotes stability in legal interpretations by referencing precedent-based rulings

Preservation of the Status Quo: Adherence to legal precedents might impede progressive societal changes

It curbs potential misuse of judicial power

Reliance on democratic processes might also protect poorly crafted laws since they reflect the majority’s will

Caution and Humility: urges the courts to exercise restraint, underscoring respect for democratic ideals

Risks of Excessive Deference: Undue deference to other branches could leave undemocratic decisions unchecked

retains the court’s impartiality and independence

It could undermine the court's ability to act as a check on other branches

Upholding Democratic Values: strengthens democratic processes by deferring to the decisions of elected officials

By deferring to political departments, the court respects the balance of power as envisioned by the Constitution

activism for n against

for:

against:

Sensitive Matters: Judicial activism enables courts to address sensitive issues with care, exemplified by the Warren Court's approach to civil rights and liberties cases

judicial Independence: The judiciary is meant to be independent and unbiased, with rulings typically based on precedent

Overruling Precedent: Judges can strike down unjust laws despite precedent, as seen in Brown v. Board of Education.

Impact of Judicial Activism: Activism risks undermining judicial independence, as rulings may be influenced by personal, political reasoning, or public opinion

Flexibility: Judicial activism allows judges to make rulings aligned with public opinion, increasing trust in the judiciary and resolving constitutional ambiguities

Rule of Law Concerns: Dependence on public opinion could erode the rule of law, leading to overuse of arbitration and increased susceptibility to mob justice

Efficiency: The judiciary can implement decisions more quickly than legislative or executive branches, ensuring timely justice and reinforcing public confidence

System Stability: Excess reliance on courts for disputes could destabilise public law and governance