Judicial Activism
USU 1300
Is Judicial Activism in the best interest of the American people?
Suzanna Sherry reminds us in her working paper, Why We Need More Judicial Activism, that “an examination of constitutional practice shows that too little activism produces worse consequences than does too much” and since we cannot assure judges are consistently “fair” it is better to be overly aggressive than overly restrained. In the most basic sense, judicial activism is when judges apply their own political opinion in cases, acting as a legislature rather than judiciary. Critics argue this action interferes and is essentially ignorance of the public majority’s opinion; however, as Sherry argues, by being overly aggressive, judicial activism protects from worse consequences that come from unrestricted majority rule. …show more content…
When America created its constitutional democracy it aimed to protect against tyranny.
Thus, as shown in previous cases, judicial activism is key in controlling democratic majorities and keeping majority rule from degenerating into majority tyranny.For example, one may consider the case of Brown v. The Board of Education. The case concluded that, “in the field of public education, the doctrine of "separate but equal" has no place.”This decision was major in progressing the civil rights movement and ensuring the needs and opinions of the minority were met. Justice Robert Jackson summarized this vital purpose of judicial activism by noting: “unrestricted majority rule leaves the individual in the minority unprotected.” The transcript of the case even notes that the matters of Brown v. The Board of Education carried a “wide applicability” and a “great variety of local conditions.” Therefore, the use of judicial activism also aids in creating a national standard on such issues and dodging more public debate between local
decisions. Sherry also recognizes that the majority can also be protected by judicial activism when the Supreme Court “follows the leads of popular majorities, striking down governmental actions only when those actions are contrary to the considered judgement of a majority of Americans.” So, truly, the Supreme Court is keeping the majority’s opinion from getting lost or frustrated because of “unresponsive elected officials.” The idea that judges will assuredly “tread the perfect middle ground,” as Sherry describes it, is impossible to neither confirm nor deny. This is why so much of America’s political system is built on trust of electing officials that will represent its people well. So, in the interest of the public, judiciary action, even when overly aggressive, is vital in protecting all parts of our democracy.
Is Judicial Activism in the best interest of the American people?
Suzanna Sherry reminds us in her working paper, Why We Need More Judicial Activism, that “an examination of constitutional practice shows that too little activism produces worse consequences than does too much” and since we cannot assure judges are consistently “fair” it is better to be overly aggressive than overly restrained. In the most basic sense, judicial activism is when judges apply their own political opinion in cases, acting as a legislature rather than judiciary. Critics argue this action interferes and is essentially ignorance of the public majority’s opinion; however, as Sherry argues, by being overly aggressive, judicial activism protects from worse consequences that come from unrestricted majority rule. …show more content…
When America created its constitutional democracy it aimed to protect against tyranny.
Thus, as shown in previous cases, judicial activism is key in controlling democratic majorities and keeping majority rule from degenerating into majority tyranny.For example, one may consider the case of Brown v. The Board of Education. The case concluded that, “in the field of public education, the doctrine of "separate but equal" has no place.”This decision was major in progressing the civil rights movement and ensuring the needs and opinions of the minority were met. Justice Robert Jackson summarized this vital purpose of judicial activism by noting: “unrestricted majority rule leaves the individual in the minority unprotected.” The transcript of the case even notes that the matters of Brown v. The Board of Education carried a “wide applicability” and a “great variety of local conditions.” Therefore, the use of judicial activism also aids in creating a national standard on such issues and dodging more public debate between local
decisions. Sherry also recognizes that the majority can also be protected by judicial activism when the Supreme Court “follows the leads of popular majorities, striking down governmental actions only when those actions are contrary to the considered judgement of a majority of Americans.” So, truly, the Supreme Court is keeping the majority’s opinion from getting lost or frustrated because of “unresponsive elected officials.” The idea that judges will assuredly “tread the perfect middle ground,” as Sherry describes it, is impossible to neither confirm nor deny. This is why so much of America’s political system is built on trust of electing officials that will represent its people well. So, in the interest of the public, judiciary action, even when overly aggressive, is vital in protecting all parts of our democracy.