Judicial Activism vs. Judicial Restraint
AP Government and Politics
Chapter 9
Restraint: unless the Constitution specifically states to the contrary, legislative and executive branches, as the
elected representatives of the people, are given leeway to enact laws.
Strict construction: a literal interpretation of the Constitution, narrow language
Activism: the Constitution does not have to specifically forbid an action for the Court to overrule a state or
Congress/President; the Court has an obligation to act as “trustees” of the people; also to protect the rights of
minorities.
Loose construction: a “spirit” of the Constitution view, which allows for expansive interpretation
Judicial Activism or Restraint?
Engel vs. Vitale – a school policy in New York that required a short prayer was struck down; Court said that the
prayer violates the 1st amendment freedom of religion.
 Direct conflict with the Constitution?

Activist or Restraint?
Oregon vs. Gonazalez – federal law which prohibits physician-assisted suicide anywhere in the US is struck down;
Court said that fed does not have the power (via CSA) to prevent state-sanctioned suicide.
 Direct conflict with the Constitution?

Activist or Restraint?
US vs. Lopez – national “Gun Free School Zones” law, which gave the national government more power under
Commerce, was struck down; Court said national gov does not have this power.
 Direct conflict with the Constitution?

Activist or Restraint?
Roe vs. Wade - state law which prohibits abortion was struck down; takes away power of states to outlaw
abortion; Court decides that Constitution says you have a right to privacy.
 Direct conflict with the Constitution?

Activist or Restraint?
Chicago vs. McDonald – City (state) ordinance which gave more power to cities/states to limit gun ownership was
struck down by Court; said that the 2nd amendment protects an individual right to bear arms not associated with a
militia.
 Conflict with the Constitution?

Activist or Restraint?
HHS vs. Virgina – State challenge to the Affordable Care Act; Court upholds the power of the federal government
to require citizens to purchase health insurance or face a penalty in the form of a tax.
 Direct conflict with the Constitution?

Activist or Restraint?
Arizona vs. US – a federal challenge to Arizona’s restrictive immigration law; Court rules that Arizona does not
have the power to enact this legislation
 Direct conflict with the Constitution?

Activist or Restraint?
Obergefell vs. Hodges
Facts of the Case
Facts of the Case
Groups of same-sex couples sued their relevant state agencies in Ohio, Michigan, Kentucky, and
Tennessee to challenge the constitutionality of those states’ bans on same-sex marriage or refusal to
recognize legal same-sex marriages that occurred in jurisdictions that provided for such marriages. The
plaintiffs in each case argued that the states’ statutes violated the Equal Protection Clause and Due
Process Clause of the Fourteenth Amendment, and one group of plaintiffs also brought claims under
the Civil Rights Act. In all the cases, the trial court found in favor of the plaintiffs. The U.S. Court of
Appeals for the Sixth Circuit reversed and held that the states’ bans on same-sex marriage and refusal to
recognize marriages performed in other states did not violate the couples’ Fourteenth Amendment
rights to equal protection and due process.
Questions Presented:
(1) Does the Fourteenth Amendment require a state to license a marriage between two people of the
same sex?
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Is there a direct conflict between Ohio’s ban on same sex marriage and the Constitution? If so, how direct?
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Describe how an activist judge should rule based on this case.
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Describe how a restraint judge should rule in this case.
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Are these positions what you would expect? Why or why not?