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Judicial Activism vs Judicial Restraint

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  • 0:01 Background
  • 0:35 Judicial Activism
  • 2:14 Judicial Restraint
  • 4:02 Lesson Summary
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Lesson Transcript
Instructor: Jennifer Williams

Jennifer has taught various courses in U.S. Government, Criminal Law, Business, Public Administration and Ethics and has an MPA and a JD.

In this lesson, we will learn about what judicial activism and judicial restraint are. We will look at the history of these two concepts, how they compare, and examples in modern society.

Background

In this lesson, we will learn about what judicial activism and judicial restraint are. We will look at the history of these two concepts, how they compare, and examples in modern society.

Judicial activism and judicial restraint are two different theories of what role the judicial system should have in the United States. The judicial system is the system of law through which the courts administer justice. These two types of approaches to the judicial system will be compared and contrasted in this lesson.

Judicial Activism

Judicial activism interprets the Constitution to be in favor of contemporary values. In judicial activism, judges are able to use their powers as judges in order to correct a constitutional legal injustice. In the matter of judicial activism, the judges have a great role in creating social policies in many different areas, especially the protection of civil rights and rights of the individual and public morality. The goal of judicial activism is to create policy change when it is needed in certain circumstances. If judicial activism is exercised, it gives the court the power to overrule certain judgments or acts of Congress.

This has been interpreted by some to negatively impact other branches of government. In some cases, judicial activism ends up overturning the law that Congress has created if it opposes the political philosophies of a justice. Some feel that this damages the rule of law and democracy.

One example of judicial activism is Brown v. Board of Education. This 1954 United States Supreme Court ruling ordered the desegregation of public schools. This was an example of judicial activism because it ignored the doctrine of stare decisis, which is the doctrine the courts follow to stick with the prior decisions and rulings of a court. The U.S. Supreme Court in this case overturned the long-accepted separate-but-equal standard and reinterpreted the 13th and 14th Constitutional Amendments regarding African Americans' civil rights.

Judicial Restraint

Judicial restraint limits the powers of judges to strike down a law. As opposed to the progressiveness of judicial activism, judicial restraint opines that the courts should uphold all acts and laws of Congress and legislatures unless they oppose the United States Constitution. With this restraint, if a question comes before the court involving an interpretation of the Constitution, the courts will generally defer to the prior interpretations of the Constitution by the courts or Congress. This theory limits the judges from exercising their own powers.

The goal of judicial restraint is to maintain balance amongst all of the branches of the United States' government: the judicial, the legislative and the executive branches. If judicial restraint is exercised, the court is apt to review an existing law, rather than changing it. Some believe the judges should hesitate to strike down laws, unless they are unconstitutional, and should in most cases defer to the legislature that developed the law.

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