Judicial Activism Essay

Judicial Activism Essay
Judicial activism is a concept that was introduced in the United States in 1947. Judicial activism is the perspective that view that the Supreme Court justices can and should creatively (re)interpret the texts of the Constitution and the laws to serve the judges ‘ own considered estimates of the vital needs of contemporary society when the elected “political” branches of the Federal government. Judges should not hesitate to go beyond their traditional role as interpreters of the Constitution and laws given to them by others to assume a role as independent policymakers or independent “trustees” on behalf of society. Judicial restraint and judicial activism are opposing philosophies regarding the Supreme Court justices ‘ interpretations of the Constitution of the United States.
The judiciary plays an important role in upholding and promoting the rights of citizens in a country. The judiciary’s active role in upholding citizens’ rights and preserving the country’s constitutional and legal system is known as judicial activism. This entails sometimes overstepping into the territories of the executive. Candidates should know that judicial overreach is an aggravated version of judicial activism. Judicial activism is seen as a success in liberalizing access to justice and giving relief to disadvantaged groups because of the efforts of justices V R Krishna Ayer and P N Bhagwati. The Black’s Law Dictionary defines judicial activism as “judicial philosophy which motivates judges to depart from the traditional precedents in favor of progressive and new social policies.”
Too much of a good thing can be bad, and democracy is no exception. In the United States, the antidote to the Constitution’s drafters called “the excess of democracy” is the judicial review: unelected, life-tenured federal judges with the power to invalidate the actions of the more democratic branches of government. Lately, judicial review has come under fire. Many on both sides of the political aisle accuse the Supreme Court of being overly activist and insufficiently respectful to the people’s elected representatives. Taking the Constitution away from the courts—and giving it back to the people—has become a rallying cry. But those who criticize the courts on this ground misunderstand the judiciary’s proper role. The courts should stand in the way of a democratic majority to keep majority rule from degenerating into majority tyranny. In doing so, the courts are bound to err on one side or the other from time to time. It is much better for the health of our constitutional democracy if they err on the side of activism, striking down too many laws rather than too few.
In this forthcoming essay defending judicial activism, I begin by defining two slippery and often misused concepts, judicial review, and judicial activism, and briefly survey the recent attacks on judicial activism. I then turn to support my claim that we need more judicial activism, resting my argument on three grounds. First, constitutional theory suggests a need for judicial oversight of the popular branches. Second, our constitutional history confirms that the founding generation—the drafters of our Constitution—saw a need for a strong bulwark against majority tyranny. Finally, an examination of constitutional practice shows that too little activism produces worse consequences than it does too much. If we cannot assure that the judges tread the perfect middle ground (and we cannot), it is better to have an overly aggressive judiciary than an overly restrained one.
Judicial review is not judicial supremacy. Judicial review allows courts an equal say with the other branches, not the supreme word. Courts are the final arbiter of the Constitution only to the extent that they hold a law unconstitutional, and even then, only because they act last in time, not because their will is supreme. If judicial review is simply the implementation of courts’ equal participation in government, what is judicial activism? To avoid becoming mired in political disputes, we need a definition of judicial activism with no political valence. Judicial activism occurs any time the judiciary strikes down the action of the popular branches, whether state or federal, legislative or executive. Judicial review, in other words, produces one of two possible results: If the Court invalidates the government action it is reviewing, then it is being activist; if it upholds the action, it is not. Under that definition, and because the Court is not perfect, the question becomes whether we prefer a Supreme Court that strikes down too many laws or one that strikes down too few. Many contemporary constitutional scholars favor a deferential Court that invalidates too few. I suggest we are better off with an activist Court that strikes down too many.
As many scholars have previously argued, judicial review is a safeguard against the tyranny of the majority, ensuring that our Constitution protects liberty and democracy. And indeed, the founding generation expected judicial review to operate as just such a protection against democratic majorities. A Court that is too deferential cannot fulfill that role.
More significant, however, is the historical record of judicial review. Although it is difficult to find consensus about much of what the Supreme Court does, some cases are universally condemned. Those cases offer a unique lens through which we can evaluate the relative merits of deference and activism: Are most of those cases—the Court’s greatest mistakes, as it were—overly activist or overly deferential? It turns out that virtually all of them are cases in which an overly deferential Court failed to invalidate a governmental action.1
Suppose the Court does not act but instead defers to the elected branches. In that case, it abdicates its duty as guardian of enduring principles against those populous majorities’ temporal passions and prejudices. So it is not surprising that, with historical hindsight, we sometimes regret these passions and prejudices and blame the Court for its inaction.
The ideal Court would look like Baby Bear. It should do everything right and engage in activism only when We, the People, are doing something that will be shameful or regrettable. It is impossible to achieve perfection. We must choose between a Court that views its role narrowly or a Court that views it broadly. Both types of Courts will occasionally be controversial and make mistakes. History has shown that deferential Courts are more likely to invalidate government acts than those in which they fail. These cases can only be avoided by a Court inclined to activism. We need more judicial activism.
It shouldn’t surprise us that judges may reach different conclusions within courts. A case from Alberta, for example, made it to the Supreme Court of Canada. Hutterian Brethrens challenged the provincial regulation that required them to have photo identification on driver’s licenses. They claimed the law violated their religious beliefs. SCC justices differed on whether the provincial law requiring photos was justified. The Court ruled that the law was valid because of the positive effect it had on the religious freedom of Hutterian colony members. Two justices, however, found that there was harm to the rights and lives of the religious group. This shows that judges are often required to weigh in on social issues such as Charter cases, which the courts have criticized.
Both of these cases, which are both involving judges, illustrate how the charter has changed its role. Judges now have to cooperate with the charter. The charter gives judges a greater role in the Constitution. This means that judges now have greater power and accountability by force than before the BNA act was in place.
Judges are now more responsible than ever before. However, judges are not randomly chosen. Judges are selected based on many factors to maintain trust. The Supreme Court of Canada comprises nine judges, including the Chief Justice of Canada. The Governor in Council appoints them. All judges must be either judges of superior courts or members with at least ten-year experience with the territory or province. Judges can remain in the office until they turn seventy-five or earlier if they decide to retire (Kent 2016). Judges can be removed from office if they are found guilty of misconduct. This is crucial to remember because judges are not randomly chosen. They require experience, as stated above. Judges are selected for their experience and skills to serve the Court best. Judges are appointed to ensure they don’t abuse power given to them. Judges must be fair and impartial. Judges who abuse their power or cause misconduct will be fired. The appointment process is designed to balance judges’ power and protect citizens.
The framers of America’s Constitution in 1787 effectively divided the federal powers of the United States into three distinct but equal branches. The legislative and executive branches were given certain powers as outlined in the respective Constitutional articles (I-II-III). The Judicial Branch was granted the ability to interpret the laws under Article III of the Constitution. The US supreme court is the highest Court of the Judicial Branch and is responsible for answering any political questions brought before the US courts. The Supreme Court has decided the final cases in all cases. These precedents have been used to create laws over the last 200 years. The Supreme Court’s justices can use either judicial activism or judicial restraint when deciding on a case. The Court’s willingness and ability to make major changes in public policy has been called judicial activism. These changes can be made by reversing precedents, changing the acts of Congress or lawmakers before, or reinterpreting and revising the Constitution. Justice’s efforts to match the Court are influenced by judicial activism.

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