JUDICIAL ACTIVISM v. JUDICIAL RESTRAINT
I. 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, 1961)
2.
Requiring states to provide legal aid for the poor. (Gideon v. Wainwright,
1963)
3. Striking
down death penalty laws as violating Amendment 8. (Furman v. Georgia, 1972)
4. Striking
down a Texas law that banned flag burning. (Texas v. Johnson, 1989)
5. Striking
down the Gun Free School Zones Act. (US
v. Lopez, 1995)
6. Striking
down state death penalties for the mentally retarded. (Atkins v. Virginia,
2002)
7. Striking
down a Texas sodomy law. (Lawrence v. Texas, 2003)
8. Striking
down campaign contribution limits for corporations and unions. (Citizens United
v. the F.E.C , 2010.)
9. Striking
down section 4 of the Voting Rights Act of 1965.(Shelby County v. Holder, 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, 1857
2.Upheld
restrictions on abortion as long as they did not place an "undue
burden" on a woman (Planned Parenthood v Casey, 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, 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.
(Schechter
Poultry Corp. v. United States, 1935)
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.
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,
1966)
2. Civil rights ( Brown v Board of Education,
1954)
3. Civil liberties (Engel v. Vitale, 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 and UC Regents v. Bakke.
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, 1995)
2. Overturning Line Item Veto (Clinton v. New
York, 1998)
3. Overturning Florida Supreme Court decisions
in election of 2000 (Bush v. Gore, 2000)
4. Overturning California’s Proposition 215 that
legalized medical use of marijuana (Raich v. Gonzales, 2005)
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.
E. Stare decisis.
F. Existing laws.
G. The Constitution.
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.
Assessment Review:
- Identify : Judicial Restraint, Judicial Activism
- Provide Examples of Judicial Philosophy with specific Supreme Court Cases
- Exclusionary Rule
- Brown v. Board of Ed.
- Writ of Certiorari
- Stare Decisis
- Precedent
- Judicial Review
- Amicus Curiae
- McCulloch v. Maryland
- Gibbons v. Ogden
- Plessy v. Ferguson
- Nomination and Confirmation of Judges
