JUDICAL ACTIVISM V. JUDICIAL JUDICAL ACTIVISM V. JUDICIAL RESTRAINTRESTRAINT

I.I. Judicial activism.Judicial activism.  A.A. Philosophy that the courts should take an active role in Philosophy that the courts should take an active role in

solving society’s problems. solving society’s problems. B.B. Courts should uphold the "guardian ethic:" they act as a Courts should uphold the "guardian ethic:" they act as a

guardian of the people.guardian of the people.C.C. Examples of judicial activism:Examples of judicial activism:

1.1. Striking down Topeka School Board’s policy of seg. in Brown Striking down Topeka School Board’s policy of seg. in Brown v. Board (1954)v. Board (1954)

2.2. Striking down a Texas law that banned flag burning in Texas Striking down a Texas law that banned flag burning in Texas v. Johnson, 1989, and then striking down a congressional v. Johnson, 1989, and then striking down a congressional law that banned flag burning (US v. Eichmann)law that banned flag burning (US v. Eichmann)

3.3. Striking down the Gun Free School Zones Act in US v. Striking down the Gun Free School Zones Act in US v. Lopez, 1995.Lopez, 1995.

4.4. Striking down Striking down line item veto line item veto in Clinton v. NY 1998in Clinton v. NY 19985.5. Striking down Florida recount in Bush v. Gore 2000Striking down Florida recount in Bush v. Gore 20006.6. Striking down state death penalties for mentally retarded in Striking down state death penalties for mentally retarded in

Atkins v. Virg., 2002Atkins v. Virg., 2002 Striking down a Texas sodomy law in Lawrence v. TexasStriking down a Texas sodomy law in Lawrence v. Texas Striking down a DC city ordinance banning handguns in DC Striking down a DC city ordinance banning handguns in DC

v. Heller, 2008v. Heller, 2008

JUDICAL ACTIVISM V. JUDICIAL JUDICAL ACTIVISM V. JUDICIAL RESTRAINTRESTRAINT

II.II. Judicial restraint.Judicial restraint.  A.A.Philosophy that the courts should Philosophy that the courts should

allow the states and the other two allow the states and the other two branches of the federal government branches of the federal government to solve social, economic, and to solve social, economic, and political problems.political problems.

B.B. Federal courts should act only in those Federal courts should act only in those situations where there are clear situations where there are clear constitutional questions. They should constitutional questions. They should otherwise defer to elected lawmakers.otherwise defer to elected lawmakers.

C.C.Courts should merely Courts should merely interpretinterpret the law the law rather than make law.rather than make law.

D.Suggests that courts should follow D.Suggests that courts should follow original intent of Founders: decide original intent of Founders: decide cases on basis of what the cases on basis of what the Founders wanted.Founders wanted.

Associate Justice Antonin Scalia is a Strong Associate Justice Antonin Scalia is a Strong Proponent of Judicial Restraint Proponent of Judicial Restraint

JUDICAL ACTIVISM V. JUDICIAL JUDICAL ACTIVISM V. JUDICIAL RESTRAINTRESTRAINT

III. Historical developments.III. Historical developments.  A.A. In 20In 20thth century, prior to 1937, century, prior to 1937,

liberals complained about the liberals complained about the conservative Court being too conservative Court being too activist when it struck down activist when it struck down various reform-minded laws various reform-minded laws (e.g., minimum wage, banning (e.g., minimum wage, banning child labor, NRA, AAA). child labor, NRA, AAA).

B.B. FDR responded with his "court-FDR responded with his "court-packing" attempt in 1937 ---> packing" attempt in 1937 ---> failed, but the Court, in itsfailed, but the Court, in itsfamous "switch in time that famous "switch in time that saved nine," began to accept saved nine," began to accept New Deal legislation.New Deal legislation. FDR “Packing Event” Characterized in SatireFDR “Packing Event” Characterized in Satire

JUDICAL ACTIVISM V. JUDICIAL JUDICAL ACTIVISM V. JUDICIAL RESTRAINTRESTRAINT

C.C. Now, it was the conservatives who began to Now, it was the conservatives who began to complain about the liberal Court being too activist, complain about the liberal Court being too activist, especially with the advent of the Warren Court especially with the advent of the Warren Court (1954-1969). Conservatives began to complain (1954-1969). Conservatives began to complain about the Court's judicial activism in:about the Court's judicial activism in:

1.1. Rights of the accused, e.g., requiring the police to Rights of the accused, e.g., requiring the police to issue "Miranda warnings."issue "Miranda warnings."

2.2. Civil rights, e.g., desegregating public schools in Civil rights, e.g., desegregating public schools in Brown v. Board.Brown v. Board.

3.3. Civil liberties, e.g., of prohibiting prayer in school.Civil liberties, e.g., of prohibiting prayer in school.

4.4. Political issues, e.g., Baker v. Carr, 1962.Political issues, e.g., Baker v. Carr, 1962.

D.D. The The Burger Court Burger Court (1969-1986(1969-1986) was less activist than ) was less activist than the Warren Court, but still upset conservatives with the Warren Court, but still upset conservatives with decisions such as decisions such as Roe v. Wade Roe v. Wade and UC Regents v. and UC Regents v. BakkeBakke

JUDICAL ACTIVISM V. JUDICIAL JUDICAL ACTIVISM V. JUDICIAL RESTRAINTRESTRAINT

E.E. We have now come full circle We have now come full circle because the Rehnquist Court (1986-because the Rehnquist Court (1986-2005) was2005) wasaccused by liberals of being too accused by liberals of being too activist -- when it overturns liberal activist -- when it overturns liberal precedents, liberals accuse the precedents, liberals accuse the Court of being excessively activist, Court of being excessively activist, e.g.:e.g.:

Overturning Gun Free School Zones Overturning Gun Free School Zones ActAct

Overturning Florida Supreme Court Overturning Florida Supreme Court decisions in election of 2000decisions in election of 2000

Overturning California’s Proposition Overturning California’s Proposition 215 that legalized medical use of 215 that legalized medical use of marijuanamarijuana

F.F. Similar views are held about the Similar views are held about the Roberts Court (2005 – present), e.g. Roberts Court (2005 – present), e.g. DC v. HellerDC v. Heller

Chief Justice RehnquistChief Justice Rehnquist

JUDICAL ACTIVISM V. JUDICIAL JUDICAL ACTIVISM V. JUDICIAL RESTRAINTRESTRAINT

IV. Restraints on judicial power.IV. Restraints on judicial power.

A.A. Courts can make decisions, Courts can make decisions, but cannot enforce thembut cannot enforce them

B.B. Courts cannot reach out and Courts cannot reach out and take cases, but must wait for take cases, but must wait for the cases to come to them.the cases to come to them.

C.C.Courts can rule only on real, Courts can rule only on real, live controversies. They live controversies. They cannot “create” cases.cannot “create” cases.

D.D.Presidential appointment of Presidential appointment of judgesjudges

How Much Judicial Restraint for CJ John How Much Judicial Restraint for CJ John Roberts? Roberts?

JUDICAL ACTIVISM V. JUDICIAL JUDICAL ACTIVISM V. JUDICIAL RESTRAINTRESTRAINT

E.E. Congress.Congress.

1.1. Senate confirmation of judges.Senate confirmation of judges.2.2. ImpeachmentImpeachment and removal. and removal.3.3. Increasing the number of courts and Increasing the number of courts and

judges, judges, and thus the type of judges and thus the type of judges to Congress' and the President's to Congress' and the President's liking. For example, in 1979, liking. For example, in 1979, Congress (Democratic) created 152 Congress (Democratic) created 152 new District and Appeals Court new District and Appeals Court positions. Coupled with resignations positions. Coupled with resignations and retirements, President Carter and retirements, President Carter (Democratic) ended up appointing (Democratic) ended up appointing 40% of all federal judges during his 40% of all federal judges during his one term of office.one term of office.

4.4. Passing constitutional amendments Passing constitutional amendments (e.g., 14th Amendment overturned (e.g., 14th Amendment overturned the Dred Scott decision, 16the Dred Scott decision, 16thth Amendment allowed for an income Amendment allowed for an income tax that the Supreme Court had tax that the Supreme Court had struck down in the late 19struck down in the late 19thth century). century).

Arlen Specter, Chairman of the Senate Arlen Specter, Chairman of the Senate Judiciary CommitteeJudiciary Committee

JUDICAL ACTIVISM V. JUDICIAL JUDICAL ACTIVISM V. JUDICIAL RESTRAINTRESTRAINT

5.5. Repassing a law that was Repassing a law that was unconstitutional in hopes that the unconstitutional in hopes that the Supreme Court will change its mind.Supreme Court will change its mind.

6.6. Determining the jurisdiction of the Determining the jurisdiction of the courts -- what kinds of cases the courts -- what kinds of cases the courts can and cannot have. Article courts can and cannot have. Article III, Section 2 of the Constitution may III, Section 2 of the Constitution may give Congress the power to prevent give Congress the power to prevent the Supreme Court from hearing the Supreme Court from hearing certain types of cases (“In all other certain types of cases (“In all other cases … the Supreme Court shall cases … the Supreme Court shall have appellate jurisdiction …have appellate jurisdiction …with such with such exceptions … as Congress shall exceptions … as Congress shall makemake.”).”)

E.E. Stare decisis.Stare decisis.F.F. Existing laws.Existing laws.

Flag Defamation versus Free SpeechFlag Defamation versus Free Speech

JUDICAL ACTIVISM V. JUDICIAL JUDICAL ACTIVISM V. JUDICIAL RESTRAINTRESTRAINT

G.G. The Constitution.The Constitution.H. Public opinion: The H. Public opinion: The

Supreme Court probably Supreme Court probably does not "follow the election does not "follow the election returns“ in the short run returns“ in the short run because the Justices were because the Justices were appointed by previous appointed by previous Presidents for life terms. In Presidents for life terms. In the long run, however, the the long run, however, the Court will probably reflect Court will probably reflect public opinion because the public opinion because the Justices are appointed by Justices are appointed by Presidents who were elected Presidents who were elected by the peopleby the people

Final Thoughts…Final Thoughts…

Liberalism and conservatism are not connected Liberalism and conservatism are not connected to activism and restraint. They are completely to activism and restraint. They are completely different concepts!different concepts!

Although the Constitution should always be the Although the Constitution should always be the main focus, there are many factors that go into main focus, there are many factors that go into the opinion (decision) of each Supreme Court the opinion (decision) of each Supreme Court justice. And each justice weighs those factors justice. And each justice weighs those factors differently.differently.

Whenever one side (liberal or conservative) is Whenever one side (liberal or conservative) is upset with the power and decisions of the other, upset with the power and decisions of the other, they will claim judicial activism. they will claim judicial activism.