Increasingly, the discussions over judicial activism and judicial restraint have been a hotly debated topic whether in the political, judicial, academic or philosophical realms. Especially with the newly re-elected President Barack Obama having the responsibility to award a lifetime appointment to fulfill three out of the nine Supreme Court Justice seats during his presidency, the debate has only become more prevalent in popular culture since the decisions of any Justice affects our society – to put this very significant and rare occurrence into perspective, there have been four presidents without the privilege of appointing a single Supreme Court Justice and Obama will have the privilege of appointing three by the end of his second term as President. This article seeks to define judicial activism and judicial restraint, weigh the pros and cons of both views and show why both not only have played a significant role in making the United States a great nation but how they are also necessary. This will be evidenced by blatant misusage of judicial authority by recent and past judges of both views and conversely, examples where both judicial activism and restraint were appropriately exhibited in order to arrive at a just ruling. While popular culture debates on which of the two views would leave the future generation of this nation better off, this article contends that both judicial activists and judicial restraintists are necessary for the local, state and national legal system of a democratic nation to function efficiently and effectively; it is in the overly strict and rigorous adherence to one or the other that this article sees as the ruining of a great nation.
Proponents of arguments, generally, hold two opposing views. However, it was the Ancient Greek Philosopher, Aristotle who said, “the virtue of justice consists in moderation, as regulated by wisdom” and thus, this article is written in pursuit of a third view. Specifically, that justice is found within the moderation of the two viewpoints. Both viewpoints have their merits and yet it is important to understand their differences. Judicial activism is an elusive term, which seems to take on many meanings with various legal experts. Professor Craig Green of Temple University claims that some may define it to include “any serious judicial error” made in the course of a legal proceeding and others would define it as “any decision invalidating a statute.” He proposes that “judicial activism should be defined as the abuse of unsupervised power that is exercised outside the bounds of judicial role” (Green 1222). Evidently, Green paints the phrase with a broad and harsh stroke, but he has made it clear that judicial activists go beyond the literal meaning of the law and advocate interpretations by the spirit with which the law was composed. Among peer-reviewed journals on the other hand, ‘judicial restraint,’ has a definition seemingly agreeable to most legal experts. Professor David J. Luban of the Duke University School of Law, understands judicial restraint to be:
“a policy regarding judicial review of the constitutionality of legislation, a policy according to which courts, and especially the U.S. Supreme Court, should adopt a cautious or ‘deferential’ attitude toward voiding legislation on constitutional grounds. Roughly put, the policy advises upholding legislation even when the judge entertains doubts about its constitutionality, and thus deferring to the legislature’s implicit judgment that the legislation is constitutional.” (Luban 450)
Overall, judicial restraint is the notion that judges ought to base their decisions upon a source of authority that is outside of their own notions of justice; so while judicial activists go beyond the literal meaning of the law, judicial restraintists remain within its confines; activists use the law to make rulings according to its spirit; restraintists according to its provisions.
Depending on the issue presented before a judge, both may be valid, implemented and beneficial to the decision. It would be sensible for a judge to master both and exercise their own practicality in order to come to a fair and wise decree. Interestingly, there exist conservative judicial activists and liberal judicial restraintists and vice-versa so neither holds a political preference.
Proponents for judicial restraint generally characterize it as a judicial philosophy which reviews law, rather than makes law. They believe that Justices and Americans as a whole should hold the meaning of the framers of the Constitution in the highest regard, as well as the language of that document and in deferring to the democratically elected representatives of government. Such philosophy was critical during the ruling of West Virginia State Board of Education v. Barnette on June 14th, 1943. This was a significant court victory won by Jehovah’s Witnesses, whose religion forbade them from saluting or pledging to symbols, including symbols of political institutions. As Justice Frankfurter stated that as a “member of this Court I am not justified in writing my opinions into the Constitution, no matter how deeply I may cherish them” which clearly displays the benefits of judicial restraint (West Virginia State Bd. of Educ. v. Barnette).
Problems with judicial restraint can lie in many significant arguments that certain judges could employ. For example, what would happen if legislators enact laws that do not necessarily work to benefit a nation and the Supreme Court defers to these laws? Then the primary recourse for the citizens of its nation is at the ballot box – a recourse that is anything but immediate as it is only revisited every two to six years, depending on the office and the period of the election cycle the nation is in. In the meantime, such a detrimental law that is enacted could accumulate enormously in a tragic fashion. The United States must not forget the unfortunate “Plessy v. Ferguson” ruling decided on May 18th, 1886 which required railway companies “to provide equal, but separate, accommodations for the white and colored races” which was a ruling Justice Henry Brown made according to his reviewing of the meaning of the law (Plessy v. Ferguson). Restraintists serve the country by protecting the rights of the citizens of a nation. They are inclined to hold the Constitution in high regard and they do so by ruling with the original meaning afforded to them by the framers of the Constitution. Yet such a philosophy is only half the answer to the significant questions a nation faces.
Supporters of judicial activism argue that it is necessary to promote needed social changes and correct injustices done to society. Judicial activists view the courts as institutions of last resort for those in society “who lack the political power to influence the other branches of government” (Judicial Activism and Judicial Restraint). Furthermore, they point out that the courts often step in only after governors and state legislatures have refused to do anything about the issues their people face. For example, neither state legislatures nor Congress acted to ban racially segregated schools, trains, city buses, parks and other public facilities for decades. Segregation might still exist legally if the Supreme Court had not declared it unconstitutional in May 17th, 1954 in a landmark United States Supreme Court case. Desegregation plans were to be enacted “with all deliberate speed” which unanimously overturned the aforementioned Plessy v. Ferguson decision stating that “separate educational facilities are inherently unequal” (Brown v. Board of Education of Topeka). Arguably, this major victory gave birth to the popularity of the civil rights movement. Finally, judicial activists argue that new conditions and discovered technologies require the courts to interpret the Constitution actively. As Justice Frank Murphy wrote in Schneiderman v. United States, “The constitutional fathers, fresh from a revolution, did not forge a political strait-jacket for the generations to come” (Schneiderman v. United States).
Conversely, there are some who would say that judges who believe in judicial activism seem to believe they are above the law and exercise their “will to make law” in order to impose their own beliefs (Wellington). Generally, opponents of judicial activism argue that activist judges abuse their constitutional power by making laws and not simply interpreting them. They claim that their involvement in the process of problem solving itself is the issue. By making decisions about how to run certain government facilities, “the courts assume responsibilities that belong exclusively to the legislative and executive branches of government” is their main argument (Judicial Activism and Judicial Restraint).
The United States, with its goals of refining the democratic process, its beliefs in protecting the rights of the individual through its legislative, judicial and executive branches of government some would argue have been successful in doing so. Distinctively, the judicial branch of the government was developed as a peacemaking measure for the other two. Yet, the pursuit of peace even within its branch is an ongoing process since neither judicial activism nor judicial restraint alone have been sufficient enough to solve the complex issues that transpire in both the making of a nation and its future development. One may argue that it is only human to play an active and creative role especially if a nation is evolving politically, economically, socially and technologically and will have successfully maintained a cogent and logical argument. Yet, it is also perfectly valid to say that the founding fathers of the United States drafted a document that was, is and should remain the supreme law of the land; interpretation of it should not be swayed by the personal attitudes, values and beliefs of the Supreme Court Justices as it should be followed exactly as it was constructed. Therefore, while such arguments exist for a purpose, they should nevertheless be observed as half-truths and only one-half of the equation.
Moderation, as Aristotle has taught, should be the primary goal for all who practice law. Maintaining the viewpoints of each has its advantages and disadvantages. Clearly, leaning too far on any one side has its drawbacks and has become detrimental to society. This article demonstrates that neither one nor the other for all times is the worthier path to take. As in most issues of great import, appropriateness, tact and the ability to keep an open mind to opposing views is fundamental in discovering the truth.
In a democratically grounded land of laws as is our Constitution, the law itself is the majority as it can protect the rights of the smallest of minorities, such as the individual, as well. While Aristotle so astutely advises the legal world of practicing with moderation, nine judges alone are not the supreme rulers of the land since they themselves are ruled by the Constitution, one drafted for the benefit of its people. The Constitution does not belong to the judges, political activists, judicial restraintists or judicial activists. It belongs to the people. It is the responsibility of the people to judge the Court and ultimately, it is that judgment that decides in the end.
So if asked, Who shall guard the guardians, appropriately answer, the people shall, and the people will.
By Bonito Sahagun
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