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What is meant by the terms "judicial activism" and "judicial restraint?"  What are the...

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katekyo | Student | Honors

Posted August 8, 2013 at 9:56 AM via web

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What is meant by the terms "judicial activism" and "judicial restraint?"  What are the relative strengths and weaknesses of each?

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Ashley Kannan | Middle School Teacher | (Level 2) Educator Emeritus

Posted August 8, 2013 at 11:48 AM (Answer #1)

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Both terms relate to the function and purpose of the judicial branch. With specific reference to the Supreme Court, both terms refer to a particular viewing of the Court's purpose.  The function of the Judicial Branch, specifically the Supreme Court, is to examine the constitutionality of laws and actions of the legislative and executive branch.  In judicial activism, the philosophy of the Court is one where it functions in an almost legislative capacity.  Judicial activism is a philosophy where the Court is an active agent of social and legislative change.  Judicial activism is a belief that the Court's purpose is to interpret the Constitution and if this understanding moves into the realm of a more legislative type of body, so be it.  Judicial restraint suggests that the Court is meant to be a strictly examining body and it should not move into the domain of social policy or legislation.  Advocates of judicial restraint believe that the Supreme Court should not "usurp" the powers of the legislative branch in its actions.  Judicial restraint operates from the perspective that legislators did not intend to subvert the Constitution, so there is little need for the Judicial branch to be overzealous in its examination.

One merit of judicial restraint is how it upholds the principles of separation of powers.  Judicial restraint suggests that there are clear demarcations between what falls in the Legislative branch camp and what exists in the Judicial branch section of public affairs.  Judicial restraint upholds the principles upon which the Constitution was founded.  One merit of judicial activism is that it seeks to make right what has been done wrong.  Judicial activism is a philosophical approach where the Supreme Court is able to be the final voice in affairs where mistakes have been made.  In the other two branches, leaders are elected, and thus indebted to sections of the voting public.  There are times when both branches cannot make the Constitutionally right decision because of fear of reprisal from voters.  Judicial activism can make right that which is wrong.  

One excellent example of how the Court could be seen as Judicially active would be in how it ruled in the Brown v. Board of Education case. The court of Chief Justice Earl Warren ruled that segregation was unconstitutional and American public facilities had to be integrated "with all deliberate speed."  The Court's ruling made right what was made wrong through the legislative and judicial branch.  In Brown v. Board of Education, the Court made social and political policy in its Constitutional stand against segregation.  We now view the Court's decision in Brown v. Board of Education with simplicity.  Of course, segregation is unconstitutional.  However, in 1954, nothing appeared that simple.  The legislative and the executive branches lacked either the political will or desire to make integration the law of the land.  The only sanctuary was the Supreme Court.  Judicial activism was pursued towards the ends of fulfilling the Constitution's promise of "forming a more perfect union" as well as making American society better.  This is merely one example of the strengths of judicial activism.  While the court's embrace of both philosophies is more of a reflection of society at the time and how the Court either represents or goes against it, there are definite moments when the Court's embrace of either philosophy is historically relevant.

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