American Government
Mr. Bekemeyer
Judicial Activism Versus Judicial Restraint: The Supreme
Court and the Juvenile Death Penalty
Introduction
The debate between proponents of judicial activism and advocates of judicial
restraint is as old as the Republic. The debate centers on this question: What is
the proper role of the federal courts, particularly the Supreme Court, in the
American constitutional system? The answer to this question cannot be found in
the Constitution because the framers did not spell out the judicial powers. In
fact, even judicial review -- the extraordinary power of the federal courts to
decide the constitutionality of legislative and executive branch actions -- is
missing from the Constitution. It was Chief Justice John Marshall, ruling in
Marbury v. Madison (1803), who bestowed judicial review on the courts.
That decision sparked an early debate about the role of the Supreme Court, with
detractors claiming that the Court had overreached in declaring an act of
Congress unconstitutional and in claiming for itself a power that is nowhere
specified in the Constitution. Controversy over the role of the Supreme Court in
the constitutional system flared again in 1857, when the Court waded into the
great controversy of the day -- the question of slavery in the western territories.
In Scott v. Sanford the Court ruled that slaves are not citizens of the United
States under the provisions of the Constitution and went on to declare the
Missouri Compromise unconstitutional. For the first time since Marbury, the
Court exercised the power of judicial review, igniting a firestorm of controversy
that propelled the nation toward civil war. It would take the Civil War and the
Thirteenth and Fourteenth Amendments (ratified in 1865 and 1868, respectively)
to fix what judicial activists had broken.
The debate between judicial activism and judicial restraint continues. The
modern controversy can be traced to 1953, when president Dwight D.
Eisenhower appointed Earl Warren chief justice of the Court. Under Warren’s
leadership, from 1953 to 1969, a solid majority of the Court initiated
extraordinary changes in our understanding of constitutional liberties and rights,
especially the rights of the accused. And for the first time, the Court ruled that a
number of provisions of the Bill of Rights must be applied to protect citizens
from the actions of state governments. Inevitably the Court’s activism generated
a political reaction. Conservatives, who felt the Court was undermining law and
order, called for Warren’s impeachment. In 1968 presidential candidate Richard
Nixon ran on a promise to appoint “strict constructionists” to the federal courts,
by which he meant judges who would not read their own political agenda into
the language of the constitution and who generally would defer to the will of the
people -- or at least to the will of elected officials. Presidents Ronald Reagan,
George Bush Sr., and George W. Bush repeated Nixon’s pledge to appoint strict
constructionists to the bench. President Obama has suggested that "the critical
ingredient in [hard] cases is supplied by what is in the judge's heart," including
empathy for the powerless.
Behind the debate between judicial activism and judicial restraint is lots of
hypocrisy. Conservatives bitterly criticize activist judges for establishing
abortion and homosexual rights, but they are ready and willing to enlist federal
judicial intervention in right-to-life cases -- for example, the much-publicized
battle in 2005 between Terri Schiavo’s parents and her husband over the
removal of her life support. Liberals sharply criticize judges who yoke
themselves to the framers’ intent, but they are not beyond invoking the framers’
intent themselves when activist judges overrule certain state prerogatives -- for
example the Supreme Court’s decision to overrule the Florida courts and to put
George W. Bush in the White House in Bush v. Gore (2000). Judges and law
professors may care deeply about the tenets of constitutional interpretation, but
politicians usually care more about promoting their own agenda, whether it’s
advanced by judicial activism or restraint. Not surprisingly, Americans’ views of
the courts are more likely informed by their policy preferences than by their
preference for a particular method of constitutional interpretation.
Tenets of Judicial Activism and Judicial Restraint Judicial
Activism
• The Constitution is a living document. Its meaning is not fixed and therefore
cannot always conform to the intentions of its authors. Indeed, on many
constitutional matters the intention of the framers cannot be discerned. The
principles set forth in the Constitution are timeless, but the language of the
document must be adapted to new times and conditions. The framers used
general and often ambiguous language to allow future generations of
Americans to create their own politics. They did not intend for the
Constitution to become a straitjacket. An activist judiciary plays an
essential role in the process of adapting the Constitution to new political
problems and dilemmas. • A Constitutional system ultimately depends on the federal courts to protect
minority and individual rights. Elected officials need to be in sync with the
majority to get reelected. It’s not surprising, then, that they may neglect
minority and individual rights. Because federal judges are appointed, not
elected, and because they have life tenure as long as they behave well, they
are less likely to succumb to the tyranny of the majority. In the long run,
an activist judiciary, insulated from majority public opinion, is the only
branch of government that can be counted on to protect minority and
individual rights. Judicial Restraint • The job of judges is to apply the Constitution, not rewrite it. Judges are
obligated to interpret the Constitution with scrupulous regard for the
meaning of its language and by adhering strictly to the intent of the
framers. When judges go beyond these parameters, they inevitably and
improperly substitute their own personal views and preferences for those
specified in the Constitution. To correctly interpret the Constitution itself
or the people who wrote it. • Judges must defer to elected representatives of the people. Judges cannot and
should not protect the people from poorly conceived laws; in the spirit of
democracy, the people themselves must act to correct laws that they find to
be unwise. There is a manifest difference between bad public policy and
unconstitutional public policy. Republican government will not long
survive if the people look to the courts for redress rather than to
themselves and to their elected representatives. In James Madison’s words
in “Federalist No. 10,” “The ultimate repository of liberty is in the people.”
Assignment Reading from the Court’s decision in Roper v. Simmons
(2005), illustrates the conflict between judicial activism and judicial
restraint. In 1993, at the age of 17, Christopher Simmons and a friend
broke into the home of St. Louis County homemaker, Shirley Cook,
intending to rob her while she slept. Cook awoke and recognized
Summons. The two teenagers then bound Cook with duct tape and
electrical wire and threw her from a bridge into the river below. Simmons
had previously told friends he wanted to commit a murder and that as a
juvenile he could get away with it. At 18, Simmons was tried, convicted,
and sentenced to death under Missouri state law, which
ruled in Stanford
v. Kentucky (1989) that state death penalty laws for juveniles were not in
violation of the Eighth Amendment’s prohibition against cruel and
unusual punishment. Based on that U.S. Supreme Court ruling, the
Missouri Supreme Court turned down Simmons’s appeal. In 2002, the U.S.
Supreme Court, in Atkins v. Virginia, ruled that capital punishment for
someone with an intellectual disability did violate the Eight Amendment.
Based on the Court’s reasoning in that case, Simmons filed a writ of
habeas corpus to the Missouri Supreme Court arguing that his conviction
also violated the Eight Amendment. The Missouri Supreme Court agreed.
The state of Missouri then appealed to the U.S Supreme Court, which by a
vote of 5-4 ruled that the death penalty applied to juveniles was
unconstitutional. At the time of the Court’s ruling, nineteen states
permitted the execution of juvenile murderers, and seventy-two inmates
were on death row in twelve states for murders they committed as
juveniles. Study the reading below and answer the questions that follow.
Roper v. Simmons, 000 U.S. 03-633 (2005) From Justice Kennedy’s
Opinion of the Court
The prohibition against “cruel and unusual punishments,” like other expansive
language in the Constitution, must be interpreted according to its text, by
considering history, tradition, and precedent, and with due regard for its purpose
and function in the constitutional design. To implement this framework we have
established the propriety and affirmed the necessity of referring to “ the evolving
standards of decency that mark the progress of a maturing society” to determine
which punishments are so disproportionate as to be cruel and unusual.... The
inquiry into our society’s evolving standards of decency did not end there....
Instead we returned to the rule, established in decisions predating Stanford, that
“the Constitution contemplates that in the end our own judgment will be brought
to bear on the question of the acceptability of the death penalty under the Eighth
Amendment.”...
A majority of States have rejected the imposition of the death penalty on
juvenile offenders under 18, and we now hold this is required by the Eighth
Amendment....
Our determination that the death penalty is disproportionate punishment for
offenders under 18 finds confirmation in the stark reality that the United States
is the only country in the world that continues to give official sanction to the
juvenile death penalty. This reality does not become controlling, for the task of
interpreting the Eighth Amendment remains our responsibility. Yet... the Court
has referred to the laws of other countries and to international authorities as
instructive for its interpretation of the Eighth Amendment’s prohibition of “cruel
and unusual punishments.”...
Over time, from one generation to the next, the Constitution has come to earn
the high respect and even, as Madison dared to hope, the veneration of the
American people. (See the Federalist No. 49.) The document sets forth, and
rests upon, innovative principles original to the American experience, such as
federalism; a proven balance in political mechanisms through separation of
powers; specific guarantees for the accused in criminal cases; and broad
provisions to secure individual freedom and preserve human dignity. These
doctrines and guarantees are central to the American experience and remain
essential to our present-day self-definition and national identity. Not the least of
the reasons we honor the Constitution, then, is because we know it to be our
own. It does not lessen our fidelity to the Constitution or our pride in its origins
to acknowledge that the express affirmation of certain fundamental rights by
other nations and peoples simply underscores the centrality of those same rights
within our own heritage of freedom.
From Justice Scalia’s Dissenting Opinion
In urging approval of a constitution that gave life-tenured judges the power to
nullify laws enacted by the people’s representatives, Alexander Hamilton
assured the citizens of New York that there was little risk in this, since “[t]he
judiciary...ha[s] neither FORCE nor WILL but merely judgment.” [The
Federalist, No.78] But Hamilton had in mind a traditional judiciary, “bound
down by strict rules and precedents which serve to define and point out their
duty in every particular case that comes before them.” Bound down, indeed.
What a mockery today’s opinion makes of Hamilton’s expectation, announcing
the Court’s conclusion that the meaning of our Constitution has changed over
the past 15 years --not, mind you, that this Court’s decision 15 years ago was
wrong, but that the Constitution has changed. The Court reaches this
implausible result by purporting to advert, not to the original meaning of the
Eighth Amendment, but to “the evolving standards of decency,” ... of our
national society, It then finds, on the flimsiest of grounds, that a national
consensus which could not be perceived in our people’s laws barely 15 years
ago now solidly exists. Worse still, the Court says in so many words that what
our people’s laws say about the issue does not, in the last analysis, matter: “[I]n
the end our own judgment will be brought to bear on the question of the
acceptability of the death penalty under the Eighth Amendment.” The Court thus
proclaims itself sole arbiter of our Nation’s moral standards -- and in the course
of discharging that awesome responsibility purports to take guidance from the
views of foreign courts and legislatures. Because I do not believe that the
meaning of our Eighth Amendment, any more than the meaning of other
provisions of our Constitution, should be determined by the subjective views of
five Members of this Court and like-minded foreigners, I dissent.
Please type your responses on a separate sheet of paper.
1.
Based on your examination of Justice Kennedy’s opinion of the court,
would you identify him as a practitioner of judicial activism or judicial
restraint? Cite specific language in his opinion to support your position. 2.
Justice Scalia did not vote with the majority; he justified his decision in a
dissenting opinion. Based on you examination of Justice Scalia’s opinion,
would you identify him as a practitioner of judicial activism or judicial
restraint? Cite specific language in his dissenting opinion to support your
position. 3.
In your view, should the Supreme Court justices factor into their decision
on the juvenile death penalty today’s standards of decency and even how
other nations handle the issue? Explain and support your position. 4.
In your view, what role should the Supreme Court play in the American
political system? Should the justices practice judicial activism or judicial
restraint? Explain and support your position. 5.
Reflect carefully and honestly on this question: Was the preference you
expressed for judicial activism or judicial restraint in question 4 influenced
by your personal view of whether the juvenile death penalty is right or
wrong? Explain and support your answer.