Unit 6. Judicial Branch

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