Judicial Activism and Restraint in the United States

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Table of Contents

Introduction
Arguments for judicial activism
Arguments against judicial activism
Conclusions
References

Introduction

Since 1947, judicial activism has been a hotly debated topic targeting judiciary and American judges. Besides being a permanent discussion, it has been studied and debated at length. In order to fully understand this concept, it is imperative to give it a proper cogency and greater coherence. To begin with, judicial activism may be defined as judges’ habit of diverting from the existing law when making rulings due to skewed political or personal interests. A critical example is whereby judges make rulings against those who have constitutional right by disregarding a formal model of law and basing their judgments mainly on pre-conceived ideologies. This essay explores the arguments for and against judicial activism and also examines potential conflicts between USA Patriotic rights and the 4^th Amendment rights.

The rubric for measuring judicial activism is wide and well elaborated in a continuum of dealings by federal judges such as wrong interpretation of accepted methodology, using a policy that is substantive, adjusting interpretations and doctrines that had been established earlier on as well as inventing theories and rights that are new in order to replace existing ones. Besides, judges can exceed court’s jurisdiction while exercising their powers, fail to follow precedent and be inconsistent when issuing an opinion. They can also take sides when making decisions, use remedial powers that are broad and disregard the originalist view when interpreting the constitution. Other conceptions regarding judicial activism emanating from politicians, media, lay people and the scholarly class include issuing holdings that are not minimalist but maximalist alongside failing to follow traditional modes of judgment similar to their predecessors.

Arguments that support and oppose judicial activism may be based on how individuals have decried judicial activism, praised and attacked with equal strength some of the opinions made by judges. Today, the populace and politicians in general continue to display a continuum of reactions. This may not be a strange practice at all since it has been embraced from the beginning. For instance, the move to have chief justice Earl Warren removed from the bench in the 1950’s by the Supreme Court triggered a dramatic response from the public (Pothier, 2010). The then case was involving relations of the church, state and desegregation. The judges’ decisions were influenced by the public. From that time to date, the tendency of overstepping the legal mandate and constitutional provisions by federal judges has increased. As a result, they have been sharply criticized by the public. However, they still enjoy significant support from various quarters and hence continue to invalidate laws and remain without abdication. Indeed, the constitution continues to suffer great violation from these judges.

Arguments for judicial activism

Judicial activism has been greatly criticized. However, it is worth observing that these criticisms have played an integral role of bringing to birth, judicial independence which is also is more robust. The constitution guarantees protection to federal judges whether they make unpopular rulings that are also illegal or not. Even though criticisms against judicial activism may be seen as a potential threat to judicial independence, Article III of the ruling constitution indicates clearly that based on their “good behavior” they are guaranteed positions in their offices for as long as they live (Pothier, 2010). Basically, their authority is absolute in whatever decisions they make. In addition, certain important individuals have set up a framework that protects and offer independence to the judiciary system from impartial undermining of decisions made by people, politicians and the government. In fact, the law permits impartial administration of justice and interpretation of laws for purposes of preservation of character, property and life of every individual (Yung, 2011). In this sense, the 4^th Amendment can be used by judges to protect citizens from unreasonable harassments which are seemingly allowed by USA patriotic Act allows. It is important to underscore the fact that while USA Patriotic Act may be presenting itself as the best method for combating terrorism, it infringes on individual rights that have been protected by the 4^th Amendment.

Judicial activism is important in guarding individual’s rights, the constitution and minority parties in the community from gross oppressions and innovations from the government that spell danger to certain individuals. An example is the US Patriotic Act, which allows search of financial and medical records, communications, e-mail, telephone conversations and so on of foreign individuals. As a matter of fact, it infringes on the privacy of individuals and depicts them as potential criminals (Pothier, 2010). Ideally, I agree with the 4^th Amendment that restricts such capitalist practices by allowing searches to be done through a court order supplied with enough information. Impartial decisions made by the activist judges to protect the rights of individuals from the influence of conjectures of USA Patriotic Act, which are ill motivated, puts as a prerequisite the independence of judges.

Arguments against judicial activism

To start with, even though it is a requisite for judges to be independent in order to protect minority parties and individuals from oppressions and government innovations, judicial activism by all means need to be criticized and abolished. Even though there is an inescapable tension between USA Patriotic Act and the 4^th Amendment, judicial restraint must be exercised by the federal judges (Yung, 2011). During decision making, federal judges should be guided by principles surrounding judicial restraint so that factors that are extraneous don’t influence them (Pothier, 2010). They should be able to draw a line between what is legally sound and what is popular. In this sense, whatever decisions they make must be relevant and sound. They should not be irrelevant, ill-motivated and bent towards public approbation. The law itself provides solutions that are fair and just and therefore, personal views, views from an au corant moral philosopher, personal opinions, preferences and policies should neither be a basis nor source of consultation for any judge making decisions when construing a statute or the constitution (Yung, 2011).

Judicial restraint is important since it ensures that judicial powers don’t exceed their scope. When set free, judicial activism plays a role of retaliation through unpopular ways of applying the law. Federal judges use their own preferred policies to make judgments and twist the law in favor of certain people. Consequently, they lose their accountability and their jurisdiction is stripped from them. For instance, in 2005, Marriage Protection Act was created to bar the federal court from looking into the controversial issue of the same-sex marriage and its constitutionality (Pothier, 2010). Again, another Act referred to as Detainee Treatment Act of 2006 stripped federal courts of jurisdiction due to the perception the public had over it of judicial activism.

Conclusions

To sum up, it is true that federal courts survive under great pressure from external forces that influence decisions in cases they handle. Even though American judges still preserve their integrity in their bid to make good judgments, it is worth noting how negative effects springing from criticisms coming from the elite influence their decisions. Solving this problem requires proper strategies and measures to take away fear that federal judges have of the appointing authority, public pressure, political influence and the senate. The judges should be independent if they are to be impartial in their rulings.

References

Pothier, D. (2010). Power Without Law: The supreme court of Canada, the marshal decisions, and the failure of judicial activism. Dalhousie Law Journal, 33(1), 189- 197.

Yung, C. (2011). Flexing judicial muscle: an empirical study of judicial activism in the federal courts. Northwestern University Law Review, 105(1), 1-60.

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Judicial Activism and Restraint in the United States

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