FREE ESSAY ON DIFFERENCE BETWEEN JUDICIAL ACTIVISM AND JUDICIAL RESTRAINT

DIFFERENCE BETWEEN JUDICIAL ACTIVISM AND JUDICIAL RESTRAINT

Our American judiciary branch of the federal government has contributed and molded our
American beliefs in this great nation. This branch of government is respected because of
the code of conduct that the judges, no matter how conservative or liberal. The language
of the court as well as the uniform of the cloaks that judges wear has most probably
contributed towards this widespread respect. Throughout the history of the United States,
I noticed a pattern of "cause and effect" that our judiciary branch had practiced. I
noticed that the judicial branch usually restrain themselves from involving in critical
civil policy, but will be active when the time comes when the general public, in which
the case is decided, feels a change is needed. We have enough evidence to see how our
judicial branch should act. Should the judicial branch be more active towards shaping
American policy or restrain as long as possible before being forced to act upon very
critical civil policies?
Judicial activism is the view that the Supreme Court should be an active and creative
partner with the legislative and executive branches in shaping government policy
(Wasserman American Politics 138). The believers of this philosophical view of how our
judicial branch should be suggest that the Supreme Court more active and participate in
molding the policies of American society. It can be argued that during the end of the
Civil War and the "Separate but Equal" era, in cases such as the Brown v. Board of
Education, Baker v. Carr, Missouri ex. Rel. Gaines v. Canada, and Sweatt v. Painter. The
more recent, Bush v. Gore case is a fine example of judicial activism.
Judicial Restraint, on the other hand, is the idea that the Court should not impose its
views on other branches of the government or the states unless there is a clear violation
of the Constitution (Wasserman American Politics 138). Judges, who believes in this form
of our court system, say that a passive role of the court is preferred and that the other
branches of the government should paved the way for policy and civil case changes. In the
course of our history, cases, such as Dred Scott v. Sandford and Plessy v. Ferguson, are
ample examples of judicial restraint.
Prior to the Civil War, the Supreme Court was practicing judicial restraint. Any case
regarding policy changes in civil opinions were restrained and given the ruling of stare
decisis." Under the leadership of Chief Justice John Marshall, however, we observed that
the Supreme Court began to participate in its interpretation of the Constitution and
making its ruling the "law of the land." I strongly believe that these changes have made
our country a better nation, but is judicial activism necessary? In the case of Bush v.
Gore, the Supreme Court, in my opinion, acted without much regards to the consensus of to
the popularity of Al Gore. The arguments for judicial activism are that it helps change
civil policies promptly, but are these changes too hasty? Many people believe that
judicial restraint hurts growth, both socially and economically. Changes or improvements
towards the civil and criminal justice only come as a last minute change when so much
damage has occurred to the precedent parties.
Modern courts are not easily identified as active or restrictive. Former President,
Ronald Regan, appointed William Rehnquist, the current chief justice of the U.S. Supreme
Court, into his current position. Regan and the Republicans had hoped that with Rehnquist
in office, the U.S. justice would be conservative in its decision, meaning restraint when
it concerns laws that are Republican by nature, and active when cases brought into court
are Democratic by nature. However, I believe the current court has been relatively
restrained. The affirmation of the right to an abortion and allowing the burning of the
American flag as a symbol of freedom of speech, in my opinion, are acts of judicial
restraint.
Conclusively, I believe our judicial branch should remain restrained. I believe that the
U.S. Supreme Court should not meddle with the affairs brought up by neither the other
branches of government nor by the general public. I also believe that if the judicial
branch, by staying away from politics, is in the rightful position to save the country
from political embarrassment, such as the verdict of Bush v. Gore, when the United States
could not even decide whom her leader would be. Furthermore, if a case regarding the
actions of the executive branch during the period after the tragic incident of September
11th, I feel that the judicial branch should back the President and his decision, so
people of other nations would consider our country to be very united. Finally, I think
that by being restrained, any decision that is made is more justified, because the
decision of prior courts' had prove that its verdict has indeed sour the social justice
of civil liberty.
Bibliography
Wassenberg American Politics