JUDICAL ACTIVISM V. JUDICIAL
RESTRAINT
I. Judicial activism.
A. Philosophy that the courts should take an active role in
solving society’s problems.
B. Courts should uphold the "guardian ethic:" they act as a
guardian of the people.
C. Examples of judicial activism:
1. Striking down Topeka School Board’s policy of seg. in Brown
v. Board (1954)
2. Striking down a Texas law that banned flag burning in Texas
v. Johnson, 1989, and then striking down a congressional
law that banned flag burning (US v. Eichmann)
3. Striking down the Gun Free School Zones Act in US v.
Lopez, 1995.
4. Striking down line item veto in Clinton v. NY 1998
5. Striking down Florida recount in Bush v. Gore 2000
6. Striking down state death penalties for mentally retarded in
Atkins v. Virg., 2002
Striking down a Texas sodomy law in Lawrence v. Texas
Striking down a DC city ordinance banning handguns in DC
v. Heller, 2008
JUDICAL ACTIVISM V. JUDICIAL
RESTRAINT
II. Judicial restraint.
A.Philosophy that the courts should
allow the states and the other two
branches of the federal government
to solve social, economic, and
political problems.
B. Federal courts should act only in those
situations where there are clear
constitutional questions. They should
otherwise defer to elected lawmakers.
C.Courts should merely interpret the law
rather than make law.
D.Suggests that courts should follow
original intent of Founders: decide
cases on basis of what the
Founders wanted.
Associate Justice Antonin Scalia is a Strong
Proponent of Judicial Restraint
JUDICAL ACTIVISM V. JUDICIAL
RESTRAINT
III. Historical developments.
A. In 20th century, prior to 1937,
liberals complained about the
conservative Court being too
activist when it struck down
various reform-minded laws
(e.g., minimum wage, banning
child labor, NRA, AAA).
B. FDR responded with his "courtpacking" attempt in 1937 --->
failed, but the Court, in its
famous "switch in time that
saved nine," began to accept
New Deal legislation.
FDR “Packing Event” Characterized in Satire
JUDICAL ACTIVISM V. JUDICIAL
RESTRAINT
C. Now, it was the conservatives who began to
complain about the liberal Court being too activist,
especially with the advent of the Warren Court
(1954-1969). Conservatives began to complain
about the Court's judicial activism in:
1. Rights of the accused, e.g., requiring the police to
issue "Miranda warnings."
2. Civil rights, e.g., desegregating public schools in
Brown v. Board.
3. Civil liberties, e.g., of prohibiting prayer in school.
4. Political issues, e.g., Baker v. Carr, 1962.
D. The Burger Court (1969-1986) was less activist than
the Warren Court, but still upset conservatives with
decisions such as Roe v. Wade and UC Regents v.
Bakke
JUDICAL ACTIVISM V. JUDICIAL
RESTRAINT
E. We have now come full circle
because the Rehnquist Court (19862005) was
accused by liberals of being too
activist -- when it overturns liberal
precedents, liberals accuse the
Court of being excessively activist,
e.g.:
Overturning Gun Free School Zones
Act
Overturning Florida Supreme Court
decisions in election of 2000
Overturning California’s Proposition
215 that legalized medical use of
marijuana
F. Similar views are held about the
Roberts Court (2005 – present), e.g.
DC v. Heller
Chief Justice Rehnquist
JUDICAL ACTIVISM V. JUDICIAL
RESTRAINT
IV. Restraints on judicial power.
A. Courts can make decisions,
but cannot enforce them
B. Courts cannot reach out and
take cases, but must wait for
the cases to come to them.
C.Courts can rule only on real,
live controversies. They cannot
“create” cases.
D.Presidential appointment of
judges
How Much Judicial Restraint for CJ John
Roberts?
JUDICAL ACTIVISM V. JUDICIAL
RESTRAINT
E. Congress.
1. Senate confirmation of judges.
2. Impeachment and removal.
3. Increasing the number of courts and
judges, and thus the type of judges
to Congress' and the President's
liking. For example, in 1979,
Congress (Democratic) created 152
new District and Appeals Court
positions. Coupled with resignations
and retirements, President Carter
(Democratic) ended up appointing
40% of all federal judges during his
one term of office.
4. Passing constitutional amendments
(e.g., 14th Amendment overturned
the Dred Scott decision, 16th
Amendment allowed for an income
tax that the Supreme Court had
struck down in the late 19th century).
Arlen Specter, Chairman of the Senate
Judiciary Committee
JUDICAL ACTIVISM V. JUDICIAL
RESTRAINT
5. Repassing a law that was
unconstitutional in hopes that the
Supreme Court will change its mind.
6. Determining the jurisdiction of the
courts -- what kinds of cases the
courts can and cannot have. Article
III, Section 2 of the Constitution may
give Congress the power to prevent
the Supreme Court from hearing
certain types of cases (“In all other
cases … the Supreme Court shall
have appellate jurisdiction …with such
exceptions … as Congress shall
make.”)
E. Stare decisis.
F. Existing laws.
Flag Defamation versus Free Speech
JUDICAL ACTIVISM V. JUDICIAL
RESTRAINT
G.
The Constitution.
H. Public opinion: The
Supreme Court probably
does not "follow the election
returns“ in the short run
because the Justices were
appointed by previous
Presidents for life terms. In
the long run, however, the
Court will probably reflect
public opinion because the
Justices are appointed by
Presidents who were elected
by the people
Final Thoughts…

Liberalism and conservatism are not connected
to activism and restraint. They are completely
different concepts!
 Although the Constitution should always be the
main focus, there are many factors that go into
the opinion (decision) of each Supreme Court
justice. And each justice weighs those factors
differently.
 Whenever one side (liberal or conservative) is
upset with the power and decisions of the other,
they will claim judicial activism.