Homework Help

What judicial philosophy should guide the Supreme Court's exercise of judicial review?...

user profile pic

rthornton1 | eNotes Newbie

Posted June 15, 2013 at 1:57 AM via web

dislike 2 like

What judicial philosophy should guide the Supreme Court's exercise of judicial review?  What does this question mean?

1 Answer | Add Yours

user profile pic

pohnpei397 | College Teacher | (Level 3) Distinguished Educator

Posted June 15, 2013 at 2:20 AM (Answer #1)

dislike 1 like

In order to understand this question, you have to understand the meaning of the terms “judicial review” and “judicial philosophy.”

Judicial review is the Supreme Court’s power to decide whether a law is constitutional or unconstitutional.  The Supreme Court has the power to say that a law that Congress passed violates the Constitution and is therefore invalid.  But when should the Court do this?  When should it overturn a law that has been passed by Congress which, unlike the Supreme Court, has been elected by the people?

This is where judicial philosophy comes in.  There are generally said to be four judicial philosophies that come in two pairs.  First, there are the philosophies of loose constructionism and strict constructionism.  Strict constructionism holds that the Supreme Court should interpret the Constitution very strictly.  If the Constitution does not say (for example) that there is a right to privacy, then there is no such right.  Loose constructionism says that the Court should go more by the general meaning of the Constitution, not by its exact words.  Therefore, a loose constructionist would say that the Constitution implies that we have a right to privacy and therefore we do have that right.

Second, there is judicial activism and judicial restraint.  Judicial activists believe that judges should strike down laws relatively often.  If the Court thinks the law is unconstitutional, it should not hesitate to strike it down.  Those who believe in judicial restraint think the Court should not strike laws down very often.   Instead, the Court should generally let Congress do what it wants because Congress was elected by the people.  The Court should only overturn laws that are flagrantly unconstitutional.

So, this question is asking you which of these attitudes the Supreme Court should take when deciding if laws are unconstitutional.

Join to answer this question

Join a community of thousands of dedicated teachers and students.

Join eNotes