THE MACHINE
JUDICIAL RESTRAINT AND ACTIVISM
Judicial activism
The view that the Supreme Court justices (and even other lower-ranking
judges as well) can and should creatively interpret the texts of
the Constitution and the laws in order to serve the judges' own
considered estimates of the vital needs of contemporary society
when the elected "political" branches of the Federal
government and/or the various state governments seem to them to
be failing to meet these needs. On such a view, judges should not
hesitate to go beyond their traditional role as interpreters of
the Constitution and laws given to them by others in order to
assume a role as independent policy makers or independent "trustees"
on behalf of society.
Judicial restraint
The view that the Supreme Court (and other lesser courts) should
not read the judges' own philosophies or policy preferences into
the constitution and laws and should whenever reasonably possible
construe the law so as to avoid second guessing the policy
decisions made by other governmental institutions such as
Congress, the President and state governments within their
constitutional spheres of authority. On such a view, judges have
no popular mandate to act as policy makers and should defer to
the decisions of the elected "political" branches of
the Federal government and of the states in matters of policy
making so long as these policymakers stay within the limits of
their powers as defined by the US Constitution and the
constitutions of the several states
THE DEBATE
The debate between judicial activism and judicial restraint
began in the early days of the United States and continues
through the present. A number of prominent Supreme Court justices,
from John Marshall to Earl Warren have supported the view of
judicial activism, the belief that is the role of judges to make
bold policy decisions and possibly even chart new constitutional
ground. Judicial activists believe that the other two branches
represent the majority of Americans and that they usually make
fair decisions for most people. However, sometimes an individual's
rights my suffer because he or she is always outvoted by the
majority. In this case, the courts are the best branch for
defending the individual's rights and making policy to help those
who are weak economically or politically. For example, most
judicial activists would argue that the rights of African
Americans were ignored for decades by Congress and the Presidents.
In Brown v. Topeka Board of Education, 1954, the Court set policy,
demanding that United States schools which were segregated must
integrate with "all due speed."
This philosophy of the courts taking an active role in the policy
making process is opposed by the theory of judicial restraint,
the belief that the courts should leave policy decisions to the
legislative and executive branches. Advocated of this view argue
that the federal courts, composed of unelected judges, are the
least democratic branch of government, and that judges should not
get involved in political questions or conflicts between the
other two branches.
PERSONAL NOTE
Between the two philosophies of the Supreme Court, I prefer the idea of Judicial Restraint. The last thing the we, the people, need is a group of justices we didn't elect taking liberties with a document designed to protect our rights.