2.6 Judicial Activism v. Judicial Restraint
A. JUDICIAL ACTIVISM v. JUDICIAL RESTRAINTI. Judicial Activism a. Philosophy that the courts should take an active role in solving social, economic, and political problems. b. Courts should uphold the “guardian ethic:” they act as a guardian of the people. c. Examples of judicial activism: 1. Establishing the “one man, one vote” principle to reapportionment. (Baker v. Carr Links to an external site., 1961) 2. Requiring states to provide legal aid for the poor. (Gideon v. Wainwright, Links to an external site. 1963) 3. Striking down death penalty laws as violating Amendment 8. (Furman v. Georgia Links to an external site., 1972) 4. Striking down a Texas law that banned flag burning. (Texas v. Johnson Links to an external site., 1989) 5. Striking down the Gun Free School Zones Act. (US v. Lopez Links to an external site., 1995) 6. Striking down state death penalties for the mentally retarded. (Atkins v. Virginia Links to an external site., 2002) 7. Striking down a Texas sodomy law. (Lawrence v. Texas Links to an external site., 2003) 8. Striking down campaign contribution limits for corporations and unions. (Citizens United v. the F.E.C Links to an external site. , 2010.) 9. Striking down section 4 of the Voting Rights Act of 1965.(Shelby County v. Holder Links to an external site., 2012)
II. Judicial restraint. a. Philosophy that the courts should allow the states and the other two branches of the federal government to solve social, economic, and political problems. b. Federal courts should act only in those situations where there are clear constitutional questions. c. Courts should merely interpret the law rather than make law. d. Suggests that courts should merely follow the original intent of the founders. e. Examples of judicial restraint: 1. Upheld the law in Missouri that allowed slavery to exist. Dred Scott v Sanford Links to an external site., 1857 2. Upheld restrictions on abortion as long as they did not place an "undue burden" on a woman (Planned Parenthood v Casey Links to an external site., 1992) 3. Ruled that the 2nd amendment guarantees an individual the right to own a firearm even if they are not part of a well-regulated militia. (District of Columbia v Heller Links to an external site., 2008)
III. Historical developments. a. Prior to 1937, liberals complained about the Conservative Court being too activist when it struck down various reform minded laws. b. FDR responded with his “court-packing” attempt in 1938 and failed, but the Court, in its famous “switch in time that saved nine,” began to accept New Deal legislation. Roosevelt went on to appoint 8 Supreme Court Justices. Links to an external site. c. Now, it was the conservatives who began to complain about the liberal Court being too activist, especially with the advent of the Warren Court (1954-1969). Conservatives began to complain about the Court’s judicial activism in: 1. Rights of the accused (Miranda v. Arizona Links to an external site., 1966) 2. Civil rights ( Brown v Board of Education Links to an external site., 1954) 3. Civil liberties (Engel v. Vitale Links to an external site., 1962) d. The Burger Court (1969-1986) was less activist than the Warren Court, but still upset conservatives with decisions such as Roe v. Wade Links to an external site. and UC Regents v. Bakke. Links to an external site. e. The Rehnquist Court (1986-2005) was accused by liberals of being too activist because it overturned liberal precedents such as, 1. Overturning Gun Free School Zones Act (US v. Lopez Links to an external site., 1995) 2. Overturning Line Item Veto (Clinton v. New York, Links to an external site. 1998) 3. Overturning Florida Supreme Court decisions in election of 2000 (Bush v. Gore Links to an external site., 2000) 4. Overturning California’s Proposition 215 that legalized medical use of marijuana (Raich v. Gonzales Links to an external site., 2005) f. F. Time will tell what the Roberts Court will be remembered for.
IV. Restraints on Judicial Power a. Courts can make decisions, but cannot enforce them. b. Courts cannot reach out and take cases, but must wait for the cases to come to them. c. Presidential appointment of judges. d. Congress. 1. Senate confirmation of judges. 2. Impeachment and removal. 3. Increasing the number of courts and judges, and thus the type of judges to Congress’ and the President’s liking. 4. Passing constitutional amendments 5. Re-passing a law that was unconstitutional in hopes that the Supreme Court will change its mind. 6. Determining the jurisdiction of the courts -- what kinds of cases the courts can and can not have. a. Stare decisis. b. Existing laws. c. The Constitution. d. H. Public opinion: The Supreme Court probably does not “follow the election returns” in the short run because the Justices were appointed by previous Presidents for life terms. In the long run, however, the Court will probably reflect public opinion because the Justices are appointed by Presidents who were elected by the people. |
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