Too much of a good thing can be bad, and democracy is no exception. Lately, judicial review has come under fire. Many on both sides of the political aisle accuse the Supreme Court of being overly activist and insufficiently deferential to the elected representatives of the people. Taking the Constitution away from the courts—and giving it back to the people—has become a rallying cry.
But those who criticize the courts on this ground misunderstand the proper role of the judiciary. The courts should stand in the way of democratic majorities, in order to keep majority rule from degenerating into majority tyranny. In doing so, the courts are bound to err on one side or the other from time to time. It is much better for the health of our constitutional democracy if they err on the side of activism, striking down too many laws rather than too few.
In this forthcoming essay defending judicial activism, I begin by defining two slippery and often misused concepts, judicial review and judicial activism, and briefly survey the recent attacks on judicial activism. I then turn to supporting my claim that we need more judicial activism, resting my argument on three grounds. First, constitutional theory suggests a need for judicial oversight of the popular branches.
Second, our own constitutional history confirms that the founding generation—the drafters of our Constitution—saw a need for a strong bulwark against majority tyranny.
Finally, an examination of constitutional practice shows that too little activism produces worse consequences than does too much. If we cannot assure that the judges tread the perfect middle ground and we cannot , it is better to have an overly aggressive judiciary than an overly restrained one. Judicial review is not judicial supremacy. Judicial review allows courts an equal say with the other branches, not the supreme word.
Courts are the final arbiter of the Constitution only to the extent that they hold a law unconstitutional, and even then only because they act last in time, not because their will is supreme. To avoid becoming mired in political squabbles, we need a definition of judicial activism with no political valence. Judicial activism occurs any time the judiciary strikes down an action of the popular branches, whether state or federal, legislative or executive.
Judicial review, in other words, produces one of two possible results: If the court invalidates the government action it is reviewing, then it is being activist; if it upholds the action, it is not. Under that definition, and because the Court is not perfect, the question becomes whether we prefer a Supreme Court that strikes down too many laws or one that strikes down too few. Many contemporary constitutional scholars favor a deferential Court that invalidates too few.
Share this page. Follow Ballotpedia. Click here to follow election results! Judicial activists believe that it is acceptable to rule on lawsuits in a way that leads to a preferred or desired outcome, regardless of the law as it is written.
Judicial restraint is generally thought of as the opposite of judicial activism. Matthew Schneider, a professor of law at Thomas M. Cooley Law School, defines judicial activism as, "the theory under which judges may 'actively' interpret the law on a broad plane and are not necessarily constrained to relying on the sources and issues strictly before them.
The term "judicial activism" was coined in a Fortune article by Arthur M. Schlesinger Jr. An article by Keenan Kmiec says that in its early usage, it was sometimes used with a positive connotation akin to "civil rights activist". Despite this, the term is typically used as a criticism, even in its beginning. Louis Pollak , now a judge of the U. Ferguson , in which the court had reasoned that facilities could be segregated as long as they were equal.
But a court does not have to overturn a case for it to be seen as activist. For example, when a court strikes down a law, exercising the powers given to the court system through the separation of powers, the decision may be viewed as activist.
In Lochner v. New York , Joseph Lochner, the owner of a bakeshop, sued the state of New York for finding him in violation of the Bakeshop Act, a state law. The Act limited bakers to working less than 60 hours per week and the state fined Lochner twice for allowing one of his workers to spend over 60 hours in the shop. The Supreme Court ruled that the Bakeshop Act violated the Due Process Clause of the 14th Amendment because it infringed on an individual's freedom of contract.
By invalidating a New York law and interfering with the legislature, the court favored an activist approach. Activist and liberal are not synonymous. In the presidential election , Democratic Party candidate Al Gore contested the results of more than 9, ballots in Florida that did not mark either Gore or Republican candidate George W.
In Bush v. Gore , the Supreme Court ruled that Florida's recount was unconstitutional under the Equal Protection Clause of the 14th Amendment because the state failed to institute a uniform procedure for the recount and handled each ballot differently. The court also ruled that under Article III of the Constitution, Florida did not have time to develop a procedure for a separate, proper recount. The court intervened in a state decision that affected the nation, taking an activist approach, even though it meant a conservative candidate—Bush—won the presidential election, proving that judicial activism is neither conservative nor liberal.
Judicial restraint is considered the antonym of judicial activism. Their decisions also draw from stare decisis , which means they rule based on precedents set by previous courts. When a judge favoring judicial restraint approaches the question of whether a law is constitutional, they tend to side with the government unless the unconstitutionality of the law is extremely clear.
Examples of cases where the Supreme Court favored judicial restraint include Plessy v. Ferguson and Korematsu v. United States. In Korematsu , the court upheld race-based discrimination, refusing to interfere with legislative decisions unless they explicitly violated the Constitution.
Procedurally, judges practice the principle of restraint by choosing not to take on cases that require constitutional review unless absolutely necessary.
Judicial restraint urges judges to consider only cases where parties can prove that a legal judgment is the only means of solving a dispute.
Restraint is not exclusive to politically conservative judges. Related to judicial activism, procedural activism refers to a scenario in which a judge's ruling addresses a legal question beyond the scope of the legal matters at hand.
One of the most famous examples of procedural activism is Scott v. The plaintiff, Dred Scott, was an enslaved man in Missouri who sued his enslaver for freedom.
Scott based his claim to freedom on the fact that he had spent 10 years in an anti-slavery state, Illinois.
Despite ruling that the court did not have jurisdiction, Taney continued to rule on other matters within the Dred Scott case. The majority opinion found the Missouri Compromise itself to be unconstitutional and ruled that Congress could not free enslaved people in the Northern states.
Dred Scott stands as a prominent example of procedural activism because Taney answered the principal question and then ruled on separate, tangential matters to further his own agenda of keeping slavery as an institution in the United States. Actively scan device characteristics for identification. Use precise geolocation data.
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