Judicial Activism and Judicial Restraint (2)

Judicial Activism and Judicial Restraint (2)





Judicial Activism and Judicial Restraint


The Judiciary is the body of the government that is responsible for a country’s legal system and comprises all the judges in the country’s courts of law. The main goal of judiciary is to ensure justice is served to all citizens in an efficient way. This essay provides a comprehensive understanding of the judicial body by discussing the appropriate role of judiciary, judicial activism and restraint, and the role of activism.

The Appropriate Role of Judiciary

The judiciary has an appropriate role. It is a government branch that administers the law in accordance with it. Judiciary refers to adjudicators, magistrates, judges, the courts, and other support individuals who are involved in running the system. The judiciary is a significant aspect of the people’s democratic way of life; this is the judiciary’s appropriate role. The various courts punish law-breakers as per the law requirement, settle disputes, and apply the law. The judiciary supports peace, good government, and order (Cheng 67). Hence, all citizens depend on the judiciary system to ensure and endorse their rights. Also, the government relies on the courts to ensure the interpretation of the laws. Thus, the judiciary must ensure acting without any fear of solid interests. Also, the judiciary must act without ensuring favoritism on individual parties. Any court’s ability to ensure justice depends on its power to ensure its ruling is enforced. The court of appeal is the single court that can ensure the overturning of a lower court ruling.

Moreover, courts are involved in making a decision concerning a happening and what ought to be done concerning the happening. They make a decision whether an individual committed a crime. They also decide the type of punishment that should be awarded to the individual. Courts also offer a peaceful method to make decisions on private disputes that individuals cannot resolve by themselves. Hence, considering the crime or dispute, several cases are taken to the federal courts while others are taken to state courts. Therefore, the judiciary promotes individuals’ democratic way of life.

Judicial Activism

Some individuals make an argument that a judge becomes a judicial activist if they typically overturn an earlier decision. Courts, too, may become activists; this is referred to as judicial activism. It illustrates how a judge in a court is perceived to approach or approach exercising judicial reviews. Judicial activism refers to a situation where a judge decides a ruling that ensures overlooking past constitutional interpretations or legal precedents in order to favor serving a more comprehensive political or social agenda and protecting individual rights (Brezovar 20). Hence, a judge in a court might assume precedent, knock down a law that Congress introduces, or write a judgment on the basis of ulterior motives in order to obtain a specific social goal. Also, a judge might depart from a particular model used by another judge for a finding in the same case. These acts make the court become an activist.

An excellent example of the court being activist is the case of 1954 between the Board of Education and Brown in the Warren Court. The court uttered the majority opinion. The majority opinion discovered that the 14th Amendment’s Equal Protection Clause was violated by segregated schools (Turner 41). Hence, the ruling successfully knocked down segregation. The court became an activist because the ruling of Plessy versus Ferguson was overturned. The court has concluded that as long as facilities were equal, segregation could be ensured. Nevertheless, for a court to become an activist, it does not require overturning a case. For instance, if a court knocks down a law, then it exercises the powers that the court system is provided with by means of the separation of powers; thus, the decision can be seen as an activist.

Judicial Restraint

When a court portrays a judicial restraint, it is considered the judicial activism antonym. Judicial restraint refers to a substantive or procedural approach to the judicial review exercise (Balkin 215). As a substantive doctrine, the restraint principle requires the judges to consider constitutional inquiries to offer considerable deference to the elected views and disprove their actions only on the violation of constitutional limits. As a procedural one, the restraint principle requires the judges to avoid deciding legal issues, particularly those that are constitutional, unless it’s a necessary decision for a concrete dispute resolution between adverse parties. Hence, judges choose to avoid cases that need constitutional reviews expecting it is vital; this portrays judicial restraint. Judicial restraint lacks a consistent normative value as its political valence. Typically, judicial restraint is assumed to be desirable on the basis that a particular democratically elected official should assume the primary role in policy making.

A court that portrays judicial restraint hands down various rulings that rigidly stick to the Constitution’s original content. The decision of the particular court also borrows from stare decisis; this means the judges rule on the basis of precedents that are set by earlier courts. When a court portrays judicial restraint, an inquiry of whether a specific law is constitutional is established by siding with the government, except there is a precise understanding of the law’s unconstitutionality.

The Role of Activism

Conservatives denounce activism and praise restraint while liberals are developing on the existing Supreme Court. However, if conservatives and liberals participate in judicial activism, activism can play a significant role; that is, activism is complementary and lacks compatible political valence (Gupta and Briscoe 525). Hence, this may ensure having both conservative and liberal judges as activists in this particular sense. Both judges may become complementary rather than liberal judges knocking down states’ laws and conservative judges invalidating federal laws. There would be a benefit of enabling individuals to go out and calculate activist decisions. The counting fashion should be based on a manner that conservatives and liberals should agree. Although activism has played a significant role in important issues such as opposing racism, enhancing quality for women, ensuring environmental protection, and challenging dictatorships, it is an essential effort to intervene, direct, or promote environmental, economic, political, or social reform having a desire to ensure changes in the society concerning a discerned greater good. Therefore, this plays a significant role in the activism concept.


Overall, judiciary is the body of government whose role is to ensure justice to all citizens in an efficient way. This body contributes significantly to people’s democratic way of life. Judicial activism entails the judge deciding a ruling that involves overlooking past constitutional interpretations to favor serving a more comprehensive political or social agenda and protecting individual rights. On the other hand, judicial restraint principle requires the judges to avoid deciding legal issues unless it is a necessary decision for a concrete dispute resolution between adverse parties.

Works Cited

Balkin, Jack M. “Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time.” Tex. L. Rev. 98 (2019): 215.

Brezovar, Nejc. “Judicial activism contributing to the understanding of social state principle (s): Constitutional Court of Slovenia at the crossroads.” DANUBE: Law, Economics and Social Issues Review 8.1 (2017): 19-30.

Cheng, Christine. “Private and public interests: Informal actors, informal influence, and economic order after war.” Political Economy of Statebuilding. Routledge, 2017. 63-78.

Gupta, Abhinav, and Forrest Briscoe. “Organizational political ideology and corporate openness to social activism.” Administrative Science Quarterly 65.2 (2020): 524-563.

Turner, Ronald. “Was Brown v. Board of Education Correctly Decided?.” Md. L. Rev. Online 79 (2020): 41.