Judicial Activism v. Judicial Restraint
2 Philosophies of the Court
Judicial Restraint
 Philosophy: courts should allow states and two
other branches of gov’t to solve social, economic,
political problems (Gay Marriage, Assisted
Suicide, etcl)
 Courts should only act when there are clear
constitutional questions
 Courts should interpret law; not make it
 Courts should follow original intent of Founders:
decide case, according to what founders wanted
Example from Obegfell v.
Hodges
 Justice Samuel Alito wrote…
”the decision usurps the constitutional
right of the people to decide whether to
keep or alter the traditional
understanding of marriage through the
democratic process.”
Judicial Activism
 Philosophy: Courts should take an active role in using the
Constitution to rule over state laws that infringe on peoples
rights.
(Critics charge…”its legislating from the bench and imposing
one’s policy opinions into law)
 Examples:
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Brown v. Board of Ed. (1954)
Texas v. Johnson (1989)
Gun Free School Zones Act (U.S. v. Lopez, 1995)
Clinton v. N.Y. (1998)
Bush v. Gore (2000)
Atkins v. Virg., (2002)
Lawrence v. Texas (1998)
Example from Obegfell v.
Hodges
 Justice Elena Kagan--- “when a majority
reads the Constitution as protecting a right
that a state law has infringed on, it strikes
down that law....that is the justice’s job….we
don’t live in a pure democracy, we live in a
Constitutional democracy, the Constitution
puts limits on what people can do…and this is
one of those cases….does the Constitution
prevent the democratic processes from
operating purely independently.”
Historical Developments
 20th C. - Liberals complained about conservative court when it
struck down laws (e.g., minimum wage, child labor, NRA, AAA)
 FDR responds with court packing attempt in 1937 (court’s
“switch in time that saved nine” prevented this)
 Warren Court (1954-1969); Conservatives complain about
judicial activism of liberals
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Miranda Warnings
Brown v. Board
School Prayer (Engel v. Vitale)
Baker v. Carr
A Few Restraints on Judicial Power
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No enforcement
Cannot “take cases”
Cannot “create cases”
Presidential Appts.
Congress
Stare Decisis (Precendent)
Existing Laws
The Constitution
Public Opinion: Courts will eventually reflect public opinion b/c
justices are appointed by Presidents elected by people.
Historical Developments
(Cont’d)
 Burger Court (1969-1986)- less activist, but upset
conservatives with Roe v. Wade / UC Regents v.
Bakke
 Rehnquist Court (1986-2005) - liberals accuse
conservatives of being too activist by
overturning/ruling on
 Gun Free School Zones Act (Congress passing gun
restrictions)
 Bush v. Gore
Roberts Court (2005-Present): Seen as more
conservative
Citizens United v. FEC (2010)
NFIB v. Sebelius (2012)---Ruling on ACA (Obamacare)