judicial activism vs judicial restraint
LexInter | August 11, 2021 | 0 Comments

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. 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 is to advocate contemporary values and conditions and allow 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 Restraint?

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 the 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.

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.

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, the 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? The 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’. The early scholars had 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.

What Is Judicial Activism?

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.

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 of 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 activism? Judicial activism is required in instances when there is a constitutional gap and there is a reason to avoid judgment based on the fairness of the majority.

Procedural activism in judicial activism vs judicial restraint is considered improper at the federal level in the United States and countries that follow the same system such as New Zealand. The function of the court is to resolve impending disputes between multiple parties, not issue legal laws.

In the countries where a lot of power is given to courts to ensure important judicial review, the complaints about judicial activism and activist judges have been significant. In the US, the conservatives and the liberals both raised reservations about activism.

These charges can be deployed by either parties or sides where the main concern is that the courts should take a political stance and support government actors. During the initial 20th century, the courts were shunned by liberals for attacking positive economic legislation when the Supreme court was more conservative than the legislatures.

In the US, a major and popular example of a judicial activism case is when the Warren court found that segregated schools violated the 14th Amendment’s Equal Protection Clause.

The Brown v. Board of Education case of 1954 was a popular case of judicial activism that established that racial segregation in public schools was unconstitutional even if the quality of education was the same in both types of institutes.

However, later in the 20th century, during the tenure of Chief Justice Earl Warren, the Supreme court was labeled by people as more liberal when compared to the Congress and state legislatures as the court had the power to revoke any law they deemed unfit for the country.

Judicial Activism Vs Judicial Restraint Summary

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, public 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.

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 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.

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