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AP Government
The Judiciary
Judicial Activism and Judicial Restraint
Before you begin reading, you might want to watch the Hippo Campus “Judicial Activism and
Judicial Restraint” short video http://www.hippocampus.org/hippocampus.php/course_locator.php?course=AP%20Government%2
0and%20Politics&lesson=30&topic=1&width=800&height=550&topicTitle=Judicial%20Activism%
20and%20Restraint&skinPath=http://www.hippocampus.org/hippocampus.skins/default
How Should Judges Use Their Power?
Today federal judges are making decisions affecting areas many people believe should be beyond their jurisdiction. Other people approve of the active role the courts have come to play in our daily lives.
Here are several examples of the kinds of decision judges have been making in recent years.

An Alabama federal district judge barred state prisons from admitting more inmates until they reduced prison overcrowding. Later the judge ordered sweeping changes in the administration of the prison system. The changed cost $40 million a year.
 A federal judge in Cleveland ordered the city’s bankrupt school system to stay open, ignoring state laws that required the schools to close when they ran out of money. The judge reasoned that because school officials had wasted money defending segregation the schools should remain open.
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In Boston, a federal judge ordered the busing of 24,000 students to promote greater integration of blacks and white. The judge took over administration of one newly integrated high school. He ordered $125,000 in repairs of the school.
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A federal judge order Ohio mental health officials to give patients in state hospitals more freedom, privacy, and creation privileges.
An Active Role for Today’s Courts
In recent years the courts have begun tackling problems assumed in the past to be the responsibility of school boards, prison superintendents, hospital administrators, and legislators. Across the nation, far-reaching federal court decisions have reorganized prison systems, opened and closed schools, filled seats on school boards, determined routes for highways, influence the choice of sites for nuclear power plants, and instructed state and local officials in how to do their jobs.
On what grounds have judges taken such actions?
Sometimes a constitutional argument supports such court decisions. For example, judges have ordered changes in prison systems like Alabama’s because the courts have found prison conditions so barbaric that they violated the Eighth Amendment’s ban on
“cruel and unusual punishment.” At other times the courts interpret the meaning of laws or design remedies for violation of the law. For example, judges have ordered police departments to hire blacks and other minorities in compliance with federal civil rights laws.
Such decisions have raised questions about how judges use their power to interpret the
Constitution.
1.
Should judges interpret the Constitution liberally or narrowly ?
2.
What’s the meaning of judicial activism and judicial restraint?
3.
Should our courts follow the policy of judicial activism or judicial restraint?
4.
How should judges use their power?

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Two Points of View-Activism and Restraint
The Constitution declares in Article VI that the “ Constitution and the Laws of the United
States…and all Treaties made…should be the supreme Law of the land…” This clause, known as the
“ supremacy clause ,” spells out the principles that no state law can violate any federal law and that no law, state or federal, can violate the Constitution.
As early as 1791, a federal circuit court declared a Rhode Island statute (law) unconstitutional because it violated a provision of the U.S. Constitution. In 1796, in Ware v. Hylton , the Supreme Court held a Virginia statute void because it violated the treaty of peace with Great Britain. In Marbury v.
Madison (1803) the Supreme Court declared a federal law unconstitutional. These cases established the power of “judicial review” in the Supreme Court . Judicial review is the power of courts to declare acts of legislative and executive branches of government null and void if they violate a provision of the Constitution . Since the early nineteenth century debate has continued over how federal judges should use their powers. Should the courts practice restraint or should they expand the scope of the
Constitution in their interpretations of laws and constitutional provisions?
Judicial Restraint
Those advocating judicial restraint believe the courts should avoid constitutional questions when possible. The courts should uphold all acts of Congress and state legislature except for those that clearly violate a specific section of the Constitution.
In practicing judicial restraint, the courts should defer to the constitutional interpretations of Congress, the President, and others whenever possible.
The courts should hesitate to use judicial review to promote new ideas or policy preference. In short, the courts should interpret the law and not intervene in policy making.
Over the years famous Supreme Court justices such as Felix Frankfurter, Louis Brandeis, and
Oliver Wendell Holmes called for judicial restraint. Frankfurter once said, “As a member of this Court I am not justified in writing my opinions into the Constitution, no matter how deeply I may cherish them.”
Judicial Activism
The principle of judicial activism encourages the courts to actively use judicial review to interpret and enforce the Constitution. Judicial activism envisions the courts playing a role equal to those of the legislative and executive branches in determining the meaning of the Constitution.
According to judicial activism, judges should use their powers to correct injustices, especially when the other branches of government do not act to do so. In short, the courts should play an active role in shaping social policy on such issues as civil rights, protection of individual rights, political unfairness and public morality.
Chief Justice Earl Warren (1954-1969) and many members of the Warren Court, such as Justice
William O. Douglas (1935-1979), followed the principle of judicial activism . For example, they boldly used the Constitution to make sweeping social changes promoting such policies as school desegregation and to insure that all Americans had the opportunity to vote and to participate in American society.
1.
Justice Charles Evans Hughes said: “W e are under a Constitution, but the Constitution is what the judge says it is .” Would this statement support judicial activism or judicial restraint? Explain.
2.
Justice John Harlan said: “ The Constitution is not a panacea (cure) for every blot upon the public welfare, not should this Court, ordained as a judicial body, be thought as a general haven for reform movement
.” Does this statement support judicial activism or judicial restraint? Explain.
Judicial Activism-Pros and Cons

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The judicial activism of federal courts in recent years has stirred controversies over how much power judges should have. Many people have called for a return to judicial restraint. What do you think?
Should the courts play an active, creative role in interpreting the Constitution? Or is greater judicial restraint needed? Read the following arguments for and against judicial activism.
Arguments for Judicial Activism
Supporters of judicial activism argue that it is necessary to correct injustices and promote needed social changes. They view the courts as institutions of last resort for those in society who lack the political power to influence the other branches of government.
One lawyer explains: “Federal courts are the only avenue of redress for people who can’t be heard elsewhere” such as mental patients or the very poor. When a court holds that conditions in a prison or mental hospital are so bad that they are unconstitutional, the legislature and the public are more willing to provide for improvements.
Supports of judicial activism point out that the courts often step in only after governors and state legislatures have refused to do anything about a problem. Neither state legislatures nor Congress acted to ban racially segregated schools, trains, city buses, parks, restaurants, hotels, movie theaters, amusements parts, and other public facilities for decades. Segregation might still legally exist if the Supreme Court had not declared it unconstitutional in 1954.
Supporters of judicial activism also mention that courts and judges are uniquely qualified to ensure that local officials uphold the guarantees of the Constitution. In fact, with a few exceptions, district court judges have written most of the decision affecting local institutions. For example, n Alabama judge took over the administration of the prison system in that state because he felt conditions violated the
Constitution’s prohibition of “cruel and unusual punishment.” Similarly, a Texas judge, a man born and raised in the Lone Star State, ordered sweeping changed in the Texas prison system. And, a native of
Massachusetts and a resident of Boston ordered massive school desegregation in that northern city. In each case, the district judge adopted an “activist” solution to a problem. But, each pursued an activist court because each felt that only such measure would enforce the dictates of the Constitution.
Chief Justice Earl Warren put it this way: “ When two [people] come into Court, one may say: ‘an act of Congress means this.’ The other says it means the opposite. We, [the Court] then say it means one of the two or something else in between. In that way we are making the law, aren’t we?
”
Finally, judicial activists argue that the framers of the Constitution expected the courts to interpret actively the Constitution to meet new conditions. One federal judge points out, “T he Constitution is not an inert, lifeless body of law, but requires reexamination…” Activists argue that only the courts can make such reexamination.
1.
List the three main points in the argument for judicial activism.
(1)
(2)
(3)
2.
Which point do you consider the most important? Why?
Arguments against Judicial Activism

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Opponents of judicial activism argue that activist judges make laws, not just interpret them.
The issue, they claim, does not center on whether social problems need to be solved, but on whether the courts should involved themselves in such problem solving. By making decisions about how to run prisons or schools the courts assume responsibilities that belong exclusively to the legislative and executive branches of government.
Opponents claim the courts actually rewrite the Constitution in making such policy decisions.
They do not interpret it. One prominent lawyer argues: “ Some Supreme Court justices employ the ruse
[trick] of saying, ‘What we are doing is interpreting the Constitution,’ when what the court is doing is deciding what is good for the country .”
Critics of judicial activism worry that court decisions that so freely “interpret” the meaning of the
Constitution will undermine public confidence in and respect for the courts. One legal scholar says, “ At some point, a decision will be rendered where both the Congress and President simply say NO.”
In addition, critics point out that federal judges are not elected, they are appointed for life terms.
As a result, when judges begin making policy decisions about social or political changes society should make, they become “unelected legislators.” Consequently, the people lose control of the right to govern themselves.
Further, unlike legislatures, courts are not supposed to be open to influence from interest groups.
Thus, the courts may not hear different points of view on complex social issues. By contrast, in legislatures, elected officials are responsive to such interests.
Finally, opponents of judicial activism argue that judges lack special expertise in handling such complex tasks as running prisons, administering schools, or determining hiring polices for businesses.
Judges are experts in the law, not in managing our social institutions. One legal scholar put it this way:
“ For the most part judges are narrow-minded lawyers with little background for making social judgments.” Ouch!!
1.
List three main points in the argument against judicial activism.
(1)
(2)
(3)
2.
Which point do you think is most important? Why?
Make a judgment about Judicial Activism
You have read arguments for and against judicial activism. Why do you think? Answer the following questions about judicial activism.
1.
What are some possible negative consequences of judicial activism?

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2.
What are some possible positive consequences of judicial activism?
3.
Is judicial activism a good idea? Should judges follow a policy of judicial activism? Why or why not?