Critics of activist courts suggest that the courts have adopted a legislative role and enforce broad social policies.
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The previous post was quite accurate. I would suggest that our history has shown that broad enforcement of social policies have helped to allow the court to give voice to a domain where elected officials dare to tread. It took the courage of the court to render decisions such as Brown v. Board of Education or Miranda v. Arizona. In these instances, the court spoke and articulated a position that the legislative and executive did not nor lacked the political courage to do so. The courts were able to speak when others were silent. Even in a case such as Roe v. Wade, the court spoke when others were silent. I think that in these instances the notion of an activist court can help to bring about social and political change when elected officials cannot approach such potent topics with fears of reelection in their mindset.
The main function of the Supreme Court is to decide cases that are somehow calling into question elements of our Constitution. In this case, there are often instances in which the issues that come before the court are social in nature and reflect potential threats to our civil rights as guaranteed to us under the Bill of Rights as well as under other specific articles of the Constitution. The Supreme Court is supposed to maintain a clear lack of bias and decide only based on the letter of the law; however, we do not live in a Utopian world and the courts at all levels are rife with personal views of morality and right and wrong that often inform decisions.
Judicial activism refers to a court system or a judge who uses his or her bench to make value judgements on issues, and in some cases this is unavoidable. Look at the issue of gay rights, for example. The constitution says NOTHING about marriage at all, gay, straight, or otherwise. In fact, marriage is a church-based element of society. However, there are those who feel that the government has a right to legislate marriage. The only way to put an end to this type of discrimination that seems to be clearly in violation of the constitution is to take it to the courts and let them decide. An activist judge would be one who already had a vested interest in the issue and might be more willing to agree with one side over the other, even if the other side lacked the strength of law to back them up. This is how change occurs as well as how change is stifled in our country, and it can be both a good and a bad thing. We need the higher courts to step in and make sure that what the lower courts are doing is not a violation of the constitution in these cases.
I believe that at least some of our government's power should be in the hands of unelected officials, but only some. The Supreme Court does not have to cater to the popular whim as our elected officials do, and in this sense it can bring a check to passing fancies. That is, in my opinion, an important tool.
I also do not oppose an active court. It was designed to be more than the ultimate appellate court and has effectively molded policy on more than one occasion. Sometimes for the bad (Plessy v Ferguson, Dred Scott) sometimes for the good (Brown v Board of Education). I think our country is in much better condition today because of the existence of a powerful, and unelected, Supreme Court.
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