Judicial Activism Vs Judicial Restraint- A Brief Comparison

Judicial activism and judicial restraint are two opposite approaches often written as judicial activism vs judicial restraint, which are both challenging and conflicting ideologies for a country activist judges. Judicial activism and judicial restraint relate to keeping a check on the dishonest use of power by constitutional bodies and the government.

The major difference between the two approaches is that judicial activism is a philosophy of judicial decision-making where a judge advocates contemporary values and conditions and allows personal views regarding a public policy instead of constitutionalism.

On the contrary, judicial restraint is a theory that encourages judges to not make decisions that are unconstitutional and limits their powers.

To understand judicial activism vs judicial restraint in detail, let’s discuss each of them in detail while looking at judicial restraint and judicial activism examples.

What Is Judicial Activism?

Judicial activism is the opposite of judicial restraint. Judicial activism is an approach that allows the judges to exercise judicial review and take decisions on the federal level which includes constitutional issues. It also gives power to the legal institutions to invalidate legislative or federal-level executive actions.

Arthur M Schlesinger, Jr, an American historian, coined the term in 1947 in his article published in Fortune. The term ‘judicial activism’ has been used in several instances with different meanings, therefore it is not to be confused with the frequently used version.

Definition Of Judicial Activism

The term activism refers to the readiness ability of a judge to reject a law that overturns the judicial principles, with no direct judgment on the activist’s decision whether it proves to be right or wrong.

The judges who endorse judicial activism are called activist judges and they enforce their own views on what changes are required in the constitution rather than listening to the views of earlier courts and government to make a decision.

So, what is judicial activism? Activism does not mean disapproval of everything and nor does it have any constant political valence either. A conservative judge and a liberal judge can be following judicial activism in the sense that the conservative one is more likely to remove or make federal laws obsolete, while the liberal judge is likely to strike down the state laws.

The judges might be called activist judges for ridding the government’s decisions or actions or allowing their actions. This judicial activism in the political sphere is considered wrongful because this idea of activism is not directly opposite to judicial restraint.

Similarly, a judicial decision can also be called an activist decision in a procedural sense because in disposing of a case, if it spins around a legal matter, it is not necessary to conclude. Among judicial activism, an example includes the supposedly paramount procedural activism where the Supreme Court’s decision struck down the provisions of federal election law.

In the judicial activism examples where the United States citizens went against the Federal Election Commission in the year 2010, the law that limited the financing of private investors, big companies, and even unions on political advertisements was struck down.

What Is Judicial Restraint?

In judicial activism vs judicial restraint, judicial restraint is when the courts don’t allow the interpretation of the Constitution by Congress or any other constitutional body in decision-making. Furthermore, the court upholds all the acts of Congress and legislature that don’t violate the country’s constitution.

To understand judicial activism vs judicial restraint in-depth, think of judicial restraint as a procedural approach to exercising judicial review. The principle of restraint refrains the judges from deciding on constitutional legal issues unless the decision is necessary. If the resolution of the concrete dispute is not necessary, the judges should refrain from reaching resolutions. It urges judges to grant significant deference to views of elected branches and nullify their actions only if the limits of the constitution are breached.

Promotion Of Judicial Constraint

To promote judicial constraint in the U.S federal courts, several doctrines operate that restrict the access to court to those who can demonstrate a concrete injury caused by the defendant. The judicial decision is redressable and federal courts are restricted to hear suits that require such decisions as the courts are to be viewed as institutions that resolve disputes rather than promulgate legal norms.

What is judicial restraint then? A claimant cannot seek judicial relief while a threatened injury is merely abstract under the doctrine of ripeness, similarly, the doctrine of mootness obstructs judges from deciding cases when the dispute is settled in-depth, and reaching a legal resolution will have no practical beneficial effect for parties.

However, in some American states and countries such as Germany, the courts regularly decide legal issues without adversary proceedings.

What Does Judicial Restraint Offer?

In judicial activism vs judicial restraint, judicial restraint offers to limit procedural devices even if cases can be heard in federal courts. This constitutional avoidance restricts courts to decide constitutional matters only as a last resort. If a case can be decided on multiple grounds, judicial restraint prefers the judge to solve court cases using a ground that avoids a constitutional issue.

If two readings are possible for a statute where one raises a constitutional question and the other doesn’t, the courts are advised to avoid the constitutional questions by the canon of constitutional doubt and choose the reading that does not raise doubt about the statute’s constitutionality.

Lastly, judicial activism vs judicial restraint is different because if the court faces a constitutional issue, the restrained judge will presume the constitutionality of the government action and strike down the decision only if the violation of the constitution is clear-cut. Therefore, restrained judges are unwilling to invalidate the precedents of a prior judicial decision.

So, let’s get into the depth of what is judicial restraint. Judicial restraint counsels the judges to remain cautious when enforcing their views and interpretation of the Constitution. Judicial restraint does not let judges arrive at any views of the Constitution and has no necessary connection to a particular method of constitutional interpretation.

Particular methods of interpretation are only arguments that some methods of interpretation put greater restraint on the judges, giving them less freedom to decide in cases that require policy preferences.

In American legal theory and the U.S. Supreme Court case decisions, there is a long history of judicial restraint examples. The judges were only to strike down a law if the unconstitutional decision they were making made them ‘feel a clear and strong conviction.’ Early scholars also endorsed the idea. James Bradley Thayer, a Harvard law professor, observed that a legislator might vote against the law if he believed it was unconstitutional, but if the legislator later becomes a judge, he won’t be able to uphold it on the grounds of judicial restraint.

Overall, the effect of judicial activism vs judicial restraint is on the system that allows legislature and executive greater freedom to formulate policy. The liberals evoked the idea of judicial restraint in the first half of the 20th century to prevent judges from striking down laws that were Progressive and New Deal economic rules.

In the second half of the 20th century, judicial restraint examples were seen during Chief Justice Earl Warren’s tenure, the Supreme court started taking more liberal positions than the federal and state courts. Judicial restraint emerged as a conservative political theme that justices endorsed during the period. Some justices, such as John Marshall Harlan and Frankfurter, continued to endorse the principles of judicial restraint when the political arena was shifting around them.

Judicial restraint is considered desirable in judicial activism vs judicial restraint because the elected officials play a primary role in policymaking. In general, judicial restraint does not have a consistent normative value. The courts are inadequately deferential to the legislators and executives that may seize and excessively constrain democratic self-governance. There are many instances in history when judicial restraint examples were set. The protection of constitutional rights requires judicial assertiveness and restrained courts decline to interfere in infringement of these rights.

To understand judicial activism vs judicial restraint in-depth, let’s discuss in detail what is judicial activism and how activist judges around the world make and overturn decisions as well as strike down laws if needed.

9 Key Differences Between Judicial Activism And Judicial Restraint

Judicial activism and judicial restraint are two ways judges make decisions in court. Judicial activism means judges actively shape laws to fix problems. Judicial restraint means they stick to existing laws and the Constitution. It leaves changes to lawmakers. Let’s learn more about the key differences here.

Approach To Constitution

The approach to the Constitution is how judges use it to make decisions. In judicial activism, judges believe the Constitution can adapt to modern times. So they interpret its meaning more flexibly. Judicial restraint means judges follow the Constitution’s exact words and original meaning. They make fewer changes.

Role Of The Judiciary

The role of the judiciary is how judges see their job in the court system. Judicial activism is when judges work to solve social problems and protect rights. This will need new interpretations of laws. In judicial restraint, judges apply existing laws. They avoid making big changes, believing lawmakers must decide on new rules.

Approach To Precedent

The approach to precedent is how judges treat past court decisions. Judicial activism allows judges to change or ignore past rulings. They can do this to ensure fairness or address new issues. In judicial restraint, judges follow past decisions. They respect earlier courts to keep the law stable and consistent.

Legislative Role

The legislative role is about who creates or changes laws. Judicial activism allows judges to interpret laws in new ways. They can also address gaps when lawmakers fail to act on important issues. Judicial restraint means judges believe lawmakers, like Congress, must create or change laws. They only apply existing laws.

Societal Change

Societal change is about how laws adapt to new ideas and needs in society. Judicial activism allows judges to make decisions that bring change. These changes can include protecting new rights or fixing unfair rules. They believe the law must grow with society. Judicial restraint means judges avoid pushing for changes. They leave it to lawmakers and citizens to decide what to update in society through new laws.

Examples Of Usage

Examples of usage show how judges apply their decisions in real life. In judicial activism, judges can make bold rulings to protect rights, like improving equality or addressing unfair practices. For example, they can strike down old laws that don’t fit modern society. In judicial restraint, judges stick closely to existing laws, avoiding big changes. They can decide cases based on past rulings and let lawmakers fix problems through new laws instead of changing how laws are applied.

Influence On Democracy

It is about how judges affect democracy and people’s choices. Judicial activism allows judges to shape society and protect rights. They can do this even when laws are unclear. This can help address important issues quickly. In judicial restraint, judges take a smaller role. They let elected lawmakers create or change laws. This gives citizens more power to influence laws through voting. It keeps democracy in the hands of the people.

Judicial Discretion

Judicial discretion is how much freedom judges have in making decisions. Judicial activism is when judges interpret laws more freely. They do this to be fair or to solve problems. They can look beyond the exact words of the law to find solutions. In judicial restraint, judges limit their freedom. They stick to the written law and past decisions. They avoid personal judgment and focus on following rules that already exist.

Public Perception

Public perception is how people view judges’ decisions. Some see judges as heroes for protecting rights and fixing problems. Others feel they are overstepping their role. Judicial restraint means strict adherence to the law. Many see judges as fair and careful for this. Yet, some feel they must do more to address important issues. The public’s feelings depend on whether they agree with the judges. When not, they will want changes.

The Circumstances Surrounding Judicial Activism Vs. Judicial Restraint

Judicial activism and restraint deal with when and why judges decide cases. Sometimes, judges take bold actions to solve problems or protect rights. Other times, they strictly follow the law and leave changes to lawmakers. In this section, we’ll discuss the circumstances surrounding these approaches in detail.

Situations Favoring Activism

Judicial activism is favored when laws seem unfair, outdated, or unclear. In such cases, judges step in to fix the problems. For example, when lawmakers ignore people’s rights, judges can act. They can bring justice or improve society. They use their judgment to interpret the law. It helps solve challenges. It’s vital to act quickly to protect fairness, equality, or the greater good.

Situations Favoring Restraint

Judicial restraint favors situations where judges see the law as clear. They must follow it exactly as written. They avoid making big changes, leaving decisions to lawmakers who represent the people. Judges will stick to the existing rules when a law is working well or if changes need more public input. This approach keeps the courts fair and steady. It ensures that only elected officials can create new laws.

Balancing Activism And Restraint

Judges must balance activism and restraint. They must choose when to act and when to step back. They can use activism to protect rights and fix unfairness. Yet, they must respect laws and let lawmakers make changes. This balance helps judges make fair decisions while keeping the law stable. It ensures courts solve key problems without gaining too much power. This creates a system where justice and fairness work for everyone.

Judicial Activism Vs Judicial Restraint Summary

In a nutshell, when we are discussing judicial activism vs judicial restraint, judicial restraint is where judges should be using their authority and power to ensure fairness and justice in times when the relevant federal and constitutional bodies are negligent in their duties. Therefore, the judicial activism approach allows the judges to formulate policies playing an active role in protecting the legal rights of individuals, social rights, publicity rights, and more while ensuring political fairness.

Judicial restraint and judicial activism are very different, but they collectively help maintain a fine level of power among the judiciary, executive, and legislative. In judicial activism, the judges and the court are needed to review and revisit existing laws and their modifications if needed.

The Supreme court or an Appellate court can therefore exercise their power to reverse a faulty decision of a case. The active judicial system maintains a check and balance on all three branches (judiciary, executive, and legislative) instead of making the legislative exceptionally powerful.

FAQs

1. Why Judicial Activism Is Required?

Judicial activism is needed to protect people’s rights, fix unfair laws, and solve problems when lawmakers don’t act. It helps judges adapt laws to today’s needs, ensure fairness, and quickly address important issues in society, making the legal system more just and balanced for everyone.

2. Can Judicial Restraint Ensure Fairness In Every Case?

Yes. Judicial restraint helps ensure fairness by following the law as it is written, keeping decisions consistent and predictable. However, it cannot address unique or urgent issues where laws are unclear or outdated, leaving some situations unresolved until lawmakers make necessary changes.

3. Does Judicial Activism Undermine Legislative Power?

Yes. Judicial activism sometimes appears to undermine legislative power because judges can interpret laws in new ways or address issues lawmakers haven’t solved. However, it also ensures justice when laws are unclear or outdated, acting as a balance to protect rights and respond to society’s needs.

4. Are Both Approaches Compatible With Democracy?

Yes. Both approaches are compatible with democracy. Judicial activism protects people’s rights and updates laws for today’s needs, while judicial restraint respects laws made by elected leaders. Together, they create balance, keeping the legal system fair, stable, and helpful for everyone.

Conclusion On Judicial Activism Vs Judicial Restraint

• Judicial activism supports modern values and conditions and is a different way of approaching the Constitution to resolve legal matters. However, legal restraint limits the power of judges and inhibits their striking down laws, giving this responsibility to the legislation.
• The judges have the authority to ensure justice in judicial activism when there has been an injustice done to any individual or when the relevant bodies are being negligent or not following their role properly. On the contrary, in judicial restraint, the court protects all decisions of Congress and legislatures that are not going against the United States Constitution. The restraint judge avoids resolving disputes between adverse parties that require striking down a law.
• Judicial activism protects the rights of citizens and formulates social policies, protects citizens from political unfairness, and ensures justice even when the relevant federal bodies are not performing their duties.
• Judicial activism vs judicial restraint is different because, in judicial activism, the judge has the power to negate some actions or previous judgments if they felt that they were unjust. For instance, one of the judicial activism examples is that the Appellate court has the power to undo previous acts, laws, or decisions if they were incorrect.

Both judicial activism and judicial restraint are important parts of US law. Both of them have their own set of rules and regulations. I hope after reading this article, you’ve got a clear idea of judicial activism vs judicial restraint.