Essay On Judicial Restraint

The United States Constitution is often loosely interpreted to meet the issues of the present. In the words of former Justice Charles Evans Hughes, "We are under a Constitution, but the Constitution is what the judges say it is”. (Hughes) Judicial activism and judicial restraint are the philosophy and the reason behind the majority of judicial decisions. Most people are often confused over the true meaning and their proper applications. The theory of judgment that takes into account the spirit of laws and the changing times is referred to as judicial activism, and judicial restraint looks at strict interpretation of the law and the importance of legal precedent. To figure out whether a judge or court is considered to be an activist or restrained, you must look back at the history of judgments made by either the judge or the court. So we ask ourselves what is the difference between the two terms judicial
activism and judicial restraint, and in what ways they are used in today’s judicial system? The differences in judicial activism and judicial restraint there are simply two different descriptions of legal rulings. People often mix up the true meanings of these two terms which tends to begin when these philosophies are placed into a framework of moral versus immoral, objective versus subjective positions, or good versus bad. In the mind of a judicial activist, they believe that the federal courts must correct all injustices that are perpetuated or ignored by the other branches. While with judicial restraint, it asks judges to base their judicial decisions solely on the concept of stare decisis, which refers to an obligation of the court to honor previous decisions. Most people often associate liberalism with judicial activism, and judicial restraint is associated with conservatives. There have been many liberal decisions, including the Obamacare, gerrymandering, Confederate flag and fair-housing rulings.
And you would think they were all activists, but in fact they were not, they were all examples of judicial restraint since they deferred to the determinations of the other branches of government. In the case of Obergefell v Hodges is one example of activism because they are striking down laws that a majority of the justice’s interpretation as a conflict of the Constitution. (Those “activist” judges) Judicial activism is often referred to the saying “legislating from the bench,” or usurping the legislative power granted to state and national legislatures by entering decisions that demand a change in policy. (“What is the difference between judicial activism and judicial restraint”) Throughout history there as been some other landmark cases of the US Supreme Court, like the case of Brown v. Board of Education, this case ignored both precedent and state laws in declaring segregation of the public school’s illegal. (American
Government) Judges who are considered to be an activist will have a history of overturning precedent and an active legislation. A pattern would emerge aligning political and ideological preferences with decisions. Judges that are activist can also be conservative or liberal in his or her views. One example that may define what is an activist, is that it is adherence to personal or political philosophies through judgment regardless of the law. The history of this term can be traced back to a comment made by Thomas Jefferson, referring to the behavior of Federalist federal judges, in particular John Marshall. (Judicial Activism and Restraint) When a judge or court is involved in a policy of judicial restraint, they always have a history of upholding laws as written, and also adhering to precedent. With this being said, the political makeup of a restraint-based court would have little effect on decisions, because the judges will likely be more concerned with strict adherence to existing law, and the decisions from a restraint-based court will have a much more agreement across the bench on decisions, because there is a strict interpretation of the law. The United States federal courts are still the most powerful judicial system, even though there is much debate over what constitutes the right amount of judicial power. A reason for this is that judges and justices have life terms, which plays a big part in the processing of the American core values of freedom, equality, and justice. One would think giving judges more power, their decisions would be fairer because a judge having a life term means they don’t have to worry about being reelected which makes them relieved of the outside pressure of public opinion. This is why the Founding fathers have elected officials in the legislature and appointed officials in the judiciary. The Founders believed that equality, freedom, and justice are best achieved by a balance between the two branches of government.