Judicial Activism Research Paper

Judicial Activism Research Paper
Judicial activism is when decisions or positions are suspected of being based on personal interests or political stances rather than law. It is often used
as the antonym of judicial restraint. Supporters of judicial activism believe that judges assume a role of independent policy makers going beyond their
traditional role of interpreting the Constitution (1). On the other hand, critics of judicial activism believe that it gives the judicial branch more power
than was intended in the constitution to be able to make policies.
A lot of our current policies are resultant from decisions made by creative interpretation of the constitution by our Supreme Court. As an example, Roe
v Wade (1973) overturned a Texas abortion law and making abortion legal in theUnited States on a federal level, based on the right to privacy. This
effectively invalidated all state laws limiting access to abortions during the second trimester. The Supreme Court based their decision on the Fourteenth
Amendment with the Due Process clause – a...show more content...
The plaintiffs argued that the "separate but equal" laws in place were not equal nor could they be made equal, and therefore don't follow the laws.
Again, this one was based largely on the Fourteenth Amendment, the equal protection guaranteed by it (3).
Judicial restraint is more akin to "word of the law" basing decisions heavily on precedent and interpreting laws very literally. It is seen as a way of
maintaining stability by making only small, incremental changes in interpretation of the Constitution, relying heavily on stare decisis, (precedent) and
declining to rule in politically controversial cases, whether or not they agree that there has been a possible violation of the Constitution. Judicial
restraint can be used as a form of activism though, in declining to hear a claim they disagree with personally
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Judicial Activism vs. Judicial Restraint Essay
Judicial Activism vs. Judicial Restraint Judicial activism and judicial restraint are two opposing philosophies when it comes to the Supreme Court
justices' interpretations of the United States Constitution; justices appointed by the President to the Supreme Court serve for life,and thus whose
decisions shape the lives of "We the people" for a long time to come. Marbury v. Madison, one of the first Supreme Court cases asserting the power
of judicial review, is an effective argument for this power; however, it lacks direct textual basis for the decision. John Marshall managed to get away
with this deficiency because of the silence on many issues and the vague wording of the Constitution. Marshall was also the first to interpret the...show
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However, those that favor judicial restraint on the other hand, and thus favor the status quo and the strict construction of the Constitution are
conservatives and Republicans. Two landmark Supreme Court decisions that strictly interpreted the Constitution for its literal meaning were Dred Scott
v. Sanford and Plessy v. Ferguson. In the Dred Scott case, the Supreme Court ruled that African Americans did not have the right to sue for their
freedom, since they were seen strictly by the law as property and not even citizens of the United States. As well, in Plessy v. Ferguson the Court ruled
that segregation of public schools was not unconstitutional, even though African Americans were still seen as equal citizens due to the 14th
Amendment to the Constitution ("separate but equal"). However, this particular case was then overturned by Brown v. Board of Education, Topeka,
Kansas in 1954. The Brown decision, unlike that of Plessy v. Fergusion and Dred Scott v. Sanford expressed judicial activism and ruled racial
segregation unconstitutional. Many will protest that the people do not elect the Supreme Court Justices and therefore the Supreme Court should not
have the power

Judicial Activism Vs. Judicial Restraint The debate between Judicial Activism and Judicial Restraint really grabbed my attention. Judicial Activism
and Judicial Restraint are two different ways to interpret the constitution and its laws. Both interpretations have their own strengths and weaknesses,
which is why it is so hard to come to a final decision of which is acceptable and which is not (in most cases). While at the debate I didn't realize how
many cases have boiled down to these two concepts. There have been many cases ended up being decided by both interpretations. I believe Judicial
Activism should be removed from the Supreme Court. The Original definition of Judicial Activism is defined as a philosophy of judicial decision–
...show more content...
Stare Decisis plays a large role in Judicial Restraint. Stare Decisis is sticking to an established ruling that was handed down by past judges or jurors.
A form of judicial restraint is called the political question doctrine, and it is significant in understanding this interpretation of the law. The political
question doctrine is when a court acknowledges that the constitution is violated but does not decide to act. There are plenty of examples of Judicial
Restraint throughout our history but the one that stands out the most in my mind is Gore Vs. Bush. In this case the Florida supreme courts methods of
recounting the presidential ballots was considered and ruled as having violated the Equal Protection Laws which is under the fourteenth amendment in
a presidential election. Everyone seems to know that something wrong was done, but no one really understands what happened. Before this debate I
didn't realize that this was an example of Judicial Restraint. And this is why I caint agree with either interpretations of the law. Both of these
interpretations are ways to go around the laws already set in stone. I believe that there should be some type of law created to protect the constitution. I
do not agree with either interpretations and I believe that they are both wrong. These are examples of flaws in the constitution that should be dealt
with. As I listened to this debate I realized and understood more and more

Judicial Restraint Vs Judicial Activism
As a student at CSUN I sadly admit I had no idea what Judicial Activism was, along with Judicial Restraint. I don't recall on learning any of this in
high school or in any time of my life, that says mush about our country, furthermore, it was very interesting researching about these certain terms. I did
come across some articles explaining the main tenants of both Judicial activism and Judicial restraint. Basically, for Judicial Restraint it's the belief that
the legislatures make the decisions and for the Judicial Activism it's the belief that a Judge should make the decision. Both Approaches differ
philosophically in different ways. Such as judicial activism
"is a judicial philosophy in which judges make bold policy decisions, even charting

Judicial Activism: The Wade V. Roe Case
Judicial activism is based on political or personal considerations. Also, Judicial activism. allow judges to arrive at decisions and based on personal
and political considerations, as opposed to a law. For many decades, women have advocated for fair treatment, and to hold the same position and jobs
that men do. For a considerable number of woman, the Wade v. Roe case has signified a appropriate use of judicial activism, as well as an stepping
stone for women's rights and equality.

Advantages Of Judicial Activism
Judicial activism is referred to as judicial rulings that are suspected of being passed based on biased intention of personal opinion about the existing
laws. It is a means of providing justice to the disadvantageous and aggrieved citizens. The critics of judicial activism inculpate that it increases the
power of the elected branch of authority or appointed judges to damage the ruleJudicial Activism Judicial activism is referred to as judicial rulings
that are suspected of being passed based on biased intention of personal opinion about the existing laws. It is a means of providing justice to the
disadvantageous and aggrieved citizens. The critics of judicial activism inculpate that it increases the power of the elected branch of authority...show
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These not only introduce new interpretations of the law but also guide new information to light. Judicial activism also takes into account the
Constitutional law and showcase it in a relevant way that can be gone through by public, even if it fails. It cannot disintegrate the barriers of
communication between administrative jurisdictions nor within the bureaucratic ranking but it can influence the interest and wisdom of the nationals
on the contemplation of administrators not only to safeguard their rights but also to guide the matters of public

Judicial Activism Vs. Judicial Restraint
Judicial Activism
Introduction
When researching for texts written about Judicial Activism, one comes across various authors who wrote and published works about the topic. These
works are mainly journals, pamphlet, brochures, newspapers, magazines, and articles. Before delving into the subject matter, Judicial Activism, it is
important first to understand what judicial philosophy means. Judicial philosophy can be described as the way that a judge cognizes and interprets the
law. Even though laws are universal, they should be applied to particular cases with unique conditions. To conduct this, the law is interpreted by the
judge, who determine its meaning and at times the intention of people who wrote it. Among the major types of judicial...show more content...
Judicial activism critics in America claim that the law courts mustn't assume the authority to intervene in issues that involve ethical and political
decisions, thereby disregarding the democracy's fundamental principles. Contrariwise, a court is, on occasion, considered exaggeratedly restrained and
passive the moment it refrains from defending the rule of law at large and individual liberties.
This paper's goal is to look at the various dimensions of judicial activism, for instance, its history and the cases supporting it. It will also look into
how judicial activism plays a role in the government, and why there is a necessity for more judges who are activists. The paper will also compare
judicial activism with judicial restraint as well as explain which philosophy among the two is more preferable.
Judicial Activism
As stated earlier, judicial activism is when a court doesn't confine itself to an interpretations of laws that is reasonable, but rather create laws. Thus,
judicial activism refers to judicial rulings assumed to be based on political or personal considerations instead of on the existing law. As seen, the
judicial activism essence is when a decision of a judge in a case is grounded upon her political or personal social beliefs, instead of interpreting the
law as it is. Basically, the judge alters the law. Rather than saying a certain behavior

Judicial Activism In American Society
Judicial activism in American society has shaped legislation as interpreted by the view of justices in cases that have challenges current law. The
practice of judicial activism has allowed judges to essentially create new bias legislation out of existing laws that may not possess explicit standards.
In other words, existing law is expounded upon with personal or political consideration rather than what the law states and following it as specified.
Moreover, judicial decisions usually determine future rulings that have resounding effects on society (Stephenson, 2013). However, does judicial
activism depict good or bad judiciary practices? It does not take much to understand that partiality would exist in the answer to that question as each
individual may answer...show more content...
Therefore, in my view point judicial activism is good and bad. For instance, two cases come to mind Brown v. Board of Education of Topeka
(1954) where in a landmark ruling the supreme court ordered the desegregation of schools and Cooper v Arron a case addressing desegregation
delays. In Brown v. Board of Education of Topeka (1954), justices utilized judicial activism verses adhering to the letter of the law to undo decades
of social injustice and order the vigorous desegregation of public school. By today standards, most would consider this example of judicial activism
clearly good and heroic. However, challenges addressed to the courts concerning delays in the implementation of school desegregation processes in
Cooper v. Arron (1958) exemplify poor judicial activism because the court attempted to claim it had the final say over all other entities. Specifically, the
justice declared that courts constitutional interpretation was superior to the legislative and executive branch of government. However, the constitution
limits power on all branches of government and each has the power to make changes in a deliberate manner. Essentially, the court abused it power by
not abiding by

Judicial Activism
engaging in illicit drug dealing, not to define standards of medical practices (Justia US Supreme Court 2006). The Court affirmed the Ninth's ruling
against Attorney General Ashcroft. Justice Scalia dissented and wrote. "I hereby determine that assisting suicide is not a 'legitimate medical purpose"
(Justia US Supreme Court 2006). So the same conservatives on the Bench that favor state's rights thought it was legitimate for one officer of the
Executive Branch to define the laws practice. Neither with a claim a textual Constitutional evidence, yet activist driven for their ideological reasoning
to achieve the desired results. Visa Versa Too In District of Columbia v. Heller (2008), it was ruled the Second Amendment protects the right
...show
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President Obama framed judicial activism as opposing the "will of Congress," while conservatives have tended to focus more on the judicial
nullification of state laws (Whittington 2014). They all prefer to be activist jurist when they believe that the legislature has made a constitutional error,
and they are willing to override minorities on the bench or political opposition in order to compel their interpretations of constitutional requirements.
(Whittington 2014). If anything has been proven here, is activism is not a philosophy. Activism is only a degree of evaluation in deciding cases.
Judicial Review results in a spectrum of a simple yes or no in restraint judicial decisions, to almost anything else in activism judicial

Judicial Restraint Essay
Judicial restraint and judicial activism are two opposite approaches to the checks and balances system found within the legal system of the United
States. Although both approaches are used to prevent the use of any fraudulent power within the government, judicial activism is the interpretation of the
Constitution via contemporary traditions and values. Judicial restraint, on the other hand, limits the power to strike down a law by faithfully applying
precedent. This polarity may be difficult to distinguish between, however three methods have been developed to easier analyze which approach has
been used. Based on the actions of the Supreme Court, if the outcome of a case upholds laws and statues, upholds stare decisis, and strictly adheres to
the Constitution, the judge used judicial restraint. Moreover, judicial activism would not necessarily uphold the laws and statues, stare decisis, or
adhere to the Constitution. Therefore, the most distinguishing factor that sets these two apart is their ability to influence a change to public policy;
judicial activism is a direct form of public policy change.
The distinction between judicial activism and judicial restraint may seem very prominent and clear cut now, yet the 2010 McDonald v. the city of
Chicago case arguably uses both approaches. On June 28th, 2010, the Supreme Court ruled (5–4), that the Second Amendment to the U.S. Constitution,
which guarantees "the right of the people to keep and bear Arms," applies to state and local government as well as to the federal government
(BRITTANICA). The suit was filed to challenge the provisions of a 1982 Chicago law that generally banned the new registration of handguns and
made registration a prerequisite to owning a firearm. This case is the perfect example to showcase how judicial restraint and activism both act on the
outcome of a case.
The 2010 McDonald v. the city of Chicago case upheld precedents established on the Duncan standard– a more inclusive test based on the Duncan v
Louisiana case– compelled the court to reject, on stare decisis, the main defendant's argument. The Supreme Court adhered strictly to the Constitution,
however, and based their outcome on the fourteenth amendment. This amendment, focused on

Example Of The Short Version Of Judicial Activism
The short version of judicial activism is when a single judge interprets the constitution and laws and certain way, or basically goes against the
constitution and laws due to his own beliefs.
Judicial activism is very common in our everyday world and was even something would would see back in the past. Today you see judicial activism
more and more everyday, judges letting their personal life affect their place of work. It seems like nowjudge don't care as much as to what's right and
what's wrong as much as they care about their personal beliefs and what they think is the correct way. One big example of judicial activism is back
in 1892, this is an important date where a man decided he was going to stand up for what he believes in. Homer

Judicial Restraint Analysis
According to the advocates of the judicial restraint and activism, a right to privacy reflects upon the Supreme Court Justices' interpretation of the
Framer's intents in the United States Constitution. The judicial restraint generally refers to the judge's decision based on the laws written by the
Framers and their intent of it. Since the Framer did not specify the rights to privacy, the legal approach does not allow the Supreme Court Justices to
create the right to privacy. Unlike the judicial restraint, the judicial activism takes on the opposing side and they believe beyond the written laws by the
Framers. The Supreme Court Justices would mainly express their personal views besides the jurisdiction under the Constitution. Therefore,

High Level Of Judicial Activism
The American people have high expectations for the government, especially our court system. The courts are expected to solve disputes through
enforcing laws set forth by our legislators, and to do so without bias. Typically, the courts fulfill their purpose in this way, but the task becomes much
harder when there is no precedent, or when a changing culture causes backlash to precedent. Furthermore, a vague law or ideological question may
also make an orderly dispute resolution a more difficult task than the courts were designed to handle. As the constrained court view would suggest,
these are hurdles the courts must overcome in order to solve disputes and keep the integrity of the court system. According to this view, judges don't
This occurs as a court is able to overcome cultural constraint, but the constrained court view insists that this cultural constraint is hard to overcome as
the courts take into account the opinions of the elite and the public in all of their decisions. All in all, the dynamic court view suggests that none of
these constraints: doctrinal, institutional, or cultural, are present. Meanwhile, the constrained court view suggests that at least one of these constraints
is present in order to ensure the promise of the courts to solve disputes while also respecting public opinion, the other branches of government, and
doctrine. On balance, the case of Obergefell v Hodges illustrates the constrained court view, suggesting that the Supreme Court is likely to be
constrained when at least one of the constraints mentioned above is in tact. A doctrinal constraint can be met through specific laws, an institutional
constraint can be met through inactive or ineffective legislative backlash, and finally, a cultural constraint can be met through the court's adherence to
cultural trends. The case of Obergefell v Hodges began in early 2014 when a same–sex couple in Ohio believed their Constitutional rights were being
infringed upon. The couple included James Obergefell and John James who were legally married in Maryland in 2013. Mr.James became terminally ill
and died, but his

Judicial Activism And Judicial Restraint
Judicial Activism– refers to judicial rulings suspected of being based on personal or political considerations rather than on existing law. It is sometimes
used as an antonym of judicial restraint. B. Judicial Restraint– is a theory of judicial interpretation that encourages judges to limit the exercise of their
own power. It asserts that judges should hesitate to strike down laws unless they are unconstitutional, though what counts as unconstitutional is itself a
matter of some debate. C. Precedent– The earlier judicial decisions that become guides in making later judicial decisions D. Majority Opinion– A
written statement explaining a court's official decision E. Dissenting Opinion– A statement written by one or more justices...show more content...
So a couple kids decided to wear the black armbands to school. The Des Moines school district found out about the protest. Since they created the
protest the district made a policy to make the kids remove the armbands. And the students the chose to still wear them would be punished by being
suspended. And two of the kids did, Mark Tinker and Christopher Eckhardt so they were suspended. The students felt their first amendment rights were
being violated. Iowa civil liberties union went to the family and the American Civil Liberties Union agreed to get involved and help with the lawsuit.
And the united states district court ended up siding with the school and the united state court of appeals for the eighth circuit tied in their decision so
the school decision stayed as is. The case was then taken to the supreme court. The court's decision was 7–2 and the kids won the

Judicial Activism In Canada
In common law, judges interpret the law and judge apply it based on precedent from previous cases; compared to civil law which focuses on written
legislature. In Canada, judges are given the chance to be activists. If a judge believes a citizen's rights, under the Canadian Charter of Rights and
Freedoms, are being violated, they are given the power to rule against the unconstitutional law made by the elected branches of government; this
concept is referred to as judicial activism (Hausegger, Hennigar, & Riddell, 2015, p. 123). Judicial activism ensures the individual rights of each
person are upheld, but the concept is controversial. Judicial activism is problematic because it awards an authoritarian level of power to unelected
judges, which goes against Canada's democratic ideology where elected officials decide and vote on the laws (Cameron, 2009, p. 27). I argue that
judicial activism should not be a part of Canada's judicial process because it gives too much power to the courts and disrupts the democratic process of
The three branches were created to separate authority in government, so that the no one group used their power to exploit Canadians. The legislative
and executive branches of government are responsible for turning bills into laws; the judicial branch is responsible for interpreting and applying these
laws. Judicial activism diminishes the purpose of the separate branches of government and the traditional process of law making.
It is anti–democratic to give power to judges when they contradict the decisions made by the elected Canadian government officials (Cameron, 2009, p.
23). Judicial activism argues to protect individuals Charter rights, but the reading in of sexual orientation directly goes against the Charter (Cameron,
2009, p. 26). Judicial activism aims to protect individual Charter rights, but can instead end up going against the

Judicial Restraint/Activism Essay
Judicial Restraint/Activism Justice William J. Brennan, Jr. said it the best in his speech to the Text & Teaching Symposium, "We current Justices read
the Constitution in the only way that we can: as Twentieth Century Americans." Justice Brennan also called the Constitution a fundamentally public
text and called for its use to resolve public issues. If that is true, then the document must be interpreted from today's perspective – Judicial Activism.
However, using only that approach would be saying that the work of the original framers was mute. This document is over two hundred years old and
still very relevant to today's society. In my opinion, the court needs to find a fine line between activism and restraint or intentionalism...show more
content...
Marshall said that Barron had no legal recourse under the provisions of the 5th Amendment because "the Bill of Rights did not apply to the states and
that was that". This remained until the "Civil War Amendments" were passed in 1865 and 1868. It was Justice Brennan's opinion that it was then that
the Constitution could be "interpreted to require application of the first eight amendments to the states." Barron v. Baltimore was also an excellent
example of judicial restraint or original intent. Marshall interpreted the language of the 5th Amendment exactly as the framers had intended it – the Bill
of Rights did not apply to the states. Attorney General Edwin Meese III, believed "original intent" to be the best method for interpretation of the
Constitution. He supported that belief with the following statement made by Justice Story: In construing the Constitution of the United States, we are
in the first instance to consider, what are its nature and objects, its scope and design, as apparent from the structure of the instrument, viewed as a
whole and also viewed in its component parts. Where its words are plain, clear and determinate, they require no interpretation. …Where the
words admit of two senses, each of which conformable to general usage, that sense is to be adopted, which without departing from the literal import of
the words, best harmonizes with the nature and objects, the scope and design of the instrument. The concept

Essay on The Role of the Judiciary
The Role of the Judiciary
A judge is a person who presides over a court of law whether it is a lower court or a higher court. There are many different types of judges, varying
from the Justices of Peace who sit mainly in the Magistrates Court in ordinary clothes, to the robed Justices of the Supreme Court of the United States
of America or the English Court of Appeal who decide questions of National importance. Yet they are all judges.
The judiciary is the branch of the government whose task is the administration of justice. The principle work of a judiciary is to be the moderator of
disputes. The court must decide on all aspects of the law when dealing with criminal cases and to gather...show more content...
Any judicial hearing will involve the participation of a number of people. The judge being the central figure, then u have the parties and their lawyers
that represent them but also there are other individuals involved too which may include witnesses, court room clerks, bailiffs and jurors when a jury is
required.
Although the stated role of the judiciary is to administer justice, the courts also unavoidably make law in which they are not supposed to. They
also make law, in the effect that they lay down rules that will be used in future cases, this is known as the doctrine of precedent. "Case law is built
up out of precedents, and a precedent is a previous decision of a court which may, in certain circumstances, be binding on another court in deciding a
similar case. This practice of following decisions is derived from custom, but is a practice which is generally and closely observed." C.J. Parker once
stated (Mirehouse v. Rennel –1833) "Precedent must be adhered to for the sake of developing the law as a science." This is also known as 'judge made
law'. Many judges today claim that one of their many roles is to observe and interpret law and not 'make' it. Once a decision is made by

Judicial Injustice: A Case Of Judicial Activism
This appears to be a case of judicial activism, mainly because it affects less the one percent of the United States population. If this was judicial
restraint the judge would have hesitated and waited until the right answer was blatantly obvious before ruling on it. This is a case of ideology
because the idea that people should be able to donate is much as they like was obviously the case in the ruling judge. This could be a positive
outcome for campaign finance and this could be a negative. You have to look at it from both sides, but since less than one percent is really affected
by this, I am going to say that it is negative because now the rich people can move effectively fund who they want in office and the non–rich person is
still limited

Judicial Restraint Vs. Judicial Activism
The differences between judicial restraint and judicial activism can be very broad, therefore it is paramount to understand what these two philosophies
mean prior to explaining its differences. Judicial restraint and judicial activism has led to a great debate over the years which basically revolves around
the interpretation of the U.S. Constitution and the laws. Judicial restraint refers to the philosophy in which judges should not have the authority or
discretion to interpret the law in whatever way they want, instead they should interpret the law the way that the legislators and the U.S. Constitution
intended the law to be interpreted because most judges are non–elected officials. [1 legal] However, many judges disagree with this because

Judicial Activism Research Paper

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Judicial Activism Research Paper