Judicial Activism vs' Judicial Restraint

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Judicial Activism vs. Judicial Restraint

• An explanation of the two theories

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Judicial Activism

• The belief that is the role of judges to make
  bold policy decisions and possibly even chart new
  constitutional ground
• 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 may 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
• Brown v. Topeka Board of Education The Court set
  policy, demanding that United States schools
  which were segregated must integrate

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• They say that many cases of judicial activism
  merely exemplify judicial review, and that courts
  must uphold the constitution and strike down any
  statute that violates the constitution
• It is the duty of courts to protect minority
  rights and to uphold the law, and that
  constitutional democracy is far more than just
  majority rule
• Judicial activism can be narrowly defined
• overturning laws as unconstitutional
• overturning judicial precedent
• ruling against a preferred interpretation of the
  constitution

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Judicial Restraint

• Courts should defer to the decisions made by the
  legislative and executive branches
• Congress and the president are elected by the
  people whereas members of the federal judiciary
  are not
• Advocates 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

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• Asserts that judges should hesitate to strike
  down laws unless they are obviously
  unconstitutional
• Believe that neither democracy nor the rule of
  law can exist when the law is merely what judges
  say it should be