Law and Politics

Start Free Trial

What is the difference between judicial restraint and judicial activism?

Judicial restraint has many differences from judicial activism. It is an approach to constitutional interpretation that limits judges's power to strike down laws. Judges using this approach will only strike down a law as unconstitutional in exceptional circumstances. Judicial activism, on the other hand, interprets the Constitution in accordance with contemporary values. Activist judges see themselves as making policy changes in areas which have traditionally been ignored by judicial restraint, such as civil rights and the rights of the individual.

Expert Answers

An illustration of the letter 'A' in a speech bubbles

Ever since the landmark case of Marbury v. Madison (1803) the United States Supreme Court has had the power of judicial review. Judicial review gives it the power to strike down laws it deems unconstitutional. Nevertheless, some judges have shown a marked reluctance to use that power, as they believe that, in some cases, it usurps the prerogative of the democratically-elected Congress.

The starting point of judicial restraint is that all legislative acts must be upheld unless they represent an egregious violation of the Constitution. Beyond that, any changes must only be made by the relevant legislative body, be it state or Federal.

Judicial activism adopts a completely different approach. Activist judges have no qualms about courts making policy to remedy the deficiencies of the Constitution as traditionally interpreted. Or to put it another way, they offer an expansive interpretation of the Constitution in order to fulfill certain social and political goals.

For instance, under Chief Justice Warren, the Supreme Court developed a radical jurisprudence that greatly expanded the rights of the individual. A prime example of this would be the case of Miranda v Arizona (1966), which established that criminal suspects had to be read their constitutional rights before being questioned by law enforcement officers.

Critics argued that the Court in this case was making policy and therefore going beyond the bounds of its authority. However, supporters of judicial activism retorted that such an approach was necessary if the Constitution were to keep up with changes in society.

See eNotes Ad-Free

Start your 48-hour free trial to get access to more than 30,000 additional guides and more than 350,000 Homework Help questions answered by our experts.

Get 48 Hours Free Access
Approved by eNotes Editorial Team