Judicial Activism and Judicial Restraint





Judicial Activism and Judicial Restraint


The judiciary is a branch in the government that is responsible for all the judges that are in the country’s courts. Different countries run their judiciaries differently. However, all the judiciaries have the main aim to provide justice in an efficient manner hence serve all the citizens. An efficient judiciary provides justice in a quick and less expensive manner. The judges have to come up with decisions and solutions that uphold economic, social, civil, cultural, ethical and political rights of the citizens. The decisions made by judges are based on the principles they have to adhere to and also the fact that the judiciary is an independent branch of the government. This essay discusses the constitutes of an appropriate role of judiciary. It further explains what it means for a court to be activist and for a court to show judicial restraint. Finally, the essay describes the role of the concept of activism if both conservatives and liberals engage in judicial activism.

The Power of the Judiciary and Legislating from the Bench

The judiciary gets its power from being an independent part of the government. The constitutions of various governments ensure that all the judiciary’s power is justified (Craig 355). The judiciary gets its power from the constitution upon which all courts and judges must adhere to. The government and all other authorities are also expected to uphold the independence of the judiciary. The constitution gives judges a limited role and they are not expected to use their judicial role to go against their role (Shapiro 453). They should not judge using personal preferences. In the event a judge uses personal preferences to judge, he or she withholds the ability of a country to govern itself.

Legislating from the bench is when courts create or make clear laws that cannot be easily understood based on different circumstances (Parameswaran 1). Judges are not expected to make changes to the laws but instead offer resolution strategies. Parameswaran went ahead to conclude that the controversies related with not understanding laws can be avoided by writing broader rules. As the time changes and legal evolution takes place the broader rules will help in stopping related controversies (Parameswaran 41). While limiting views preserve the court’s ability to make subsequent decisions in light of further information, they also equip the law with considerable inconsistencies that may discourage practitioners from effective decision-making. Broad viewpoints can encourage courts to make decisions that are more socially effective by removing contradiction.

Judicial Activism and Judicial Restraint

Judicial activism is the use of the judiciary power to overturn state actions, with or without justification while judicial restraint is the unwillingness to overturn such actions, instead choosing to refer the matter to regular democracy (Gupta 4). Judiciary activism may also be defined as a strategy for using legal oversight or a summary of a specific court ruling in which the judge was thought to be more inclined to rule on procedural grounds and to nullify legislative or executive measures (Bolick 1). Usually, judges are advised by judicial restraint to exercise caution when implementing their interpretations of the Constitution. It does not explain how they came to those conclusions, so it is not necessarily related to any certain approach to legal principles.

Liberals vs Conservatives on Judicial Activism

Over the years American liberals and conservatives have differed in opinion on the basis of judicial activism and judicial restraint. While liberals have recently noted that conservative courts and justices are now more inclined to overturn decisions and cast doubt on the authority of democratic institutions of government, conservatives have long grumbled about the activism of liberal justices and judges (Balkin 217). Conservatives argue in opposition that they are only going back to an earlier precedent that liberals had disregarded. In most instances judicial activism is only used when it favors one group then if it does not the group uses the judicial restraint. This is however not supposed to be the case. The role of the judicial activism is to ensure that the constitution is upheld and that both parties get fair decisions. It is to benefit the judiciary in filling the gap left by the other branches of the government (Gupta 3). By guarding and empowering the constitution the judiciary safeguards citizens against violation of rights and freedoms. The public acquires faith in the judiciary when it remains independent, irrespective political opinions.

A view of constitutional interpretation as a tool to maintain the legal system rather than as a means to an end is what is meant by legitimate judicial activism. Aligning precedents with the Constitution is our responsibility as judges, not the other way around (Bolick 13). Avoiding false, judicially created barriers to the defense of personal liberty, such as public presence and a probability of validity, is a requirement of genuine judicial activism. In addition, honoring state constitutions as the principal barriers to independence in the governmental system, rather than as a bonus, is another aspect of ethical judicial activism.


By employing the authority of judicial review, the judiciary serves as the Constitution’s protector in every nation. The judiciary has rigorously examined the legality of any appropriate policies or laws. Both the legislative branch and the executive branch must use their authority responsibly. The three organs are connected by the idea of separation of powers, and the Court has a duty to uphold balance of power. Even the powers of the Courts are subject to limitations, hence the Judiciary does not have all the power. They cannot just nullify a statute based on their own beliefs, nor can they cope with the legality of a situation in advance. Another crucial issue for legal challenge is the independence of the judiciary; if the bad choice were made, it would be extremely unfair to uphold the flawed legislation. A party should not accuse another party of judicial activism while it is also guilty of the same. Instead, judicial activism should be used to ensure that the judiciary upholds the constitution hence safeguarding citizens against violation of rights.

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. https://openyls.law.yale.edu/bitstream/handle/20.500.13051/17960/Balkin%2C%20Why%20Liberals%20and%20Conservatives%20Flipped%20on%20Judicial%20Restraint-%20Judicial%20Review%20in%20the%20Cycles%20of%20Constitutional%20Time.pdf?sequence=1&isAllowed=yBolick, Clint. “The Proper Role of Judicial Activism.” Harv. JL & Pub. Pol’y 42 (2019): 1. http://www.harvard-jlpp.com/wp-content/uploads/sites/21/2019/02/Bolick-FINAL-1.pdfCraig, Paul. “Judicial power, the judicial power project and the UK.” U. Queensland LJ 36 (2017): 355. https://heinonline.org/HOL/LandingPage?handle=hein.journals/qland36&div=24&id=&page=Gupta, Smita. “Judicial Activism V Judicial Restraint.” https://www.galgotiasuniversity.edu.in/pdfs/JudicialActivismV%20udicialRestraint.pdf

Parameswaran, Giri. “Endogenous cases and the evolution of the common law.” The RAND Journal of Economics 49.4 (2018): 791-818. http://gparames.sites.haverford.edu/wp-content/uploads/2020/03/Parameswaran-EvolutionCommonLaw.pdfShapiro, Carolyn. “What Members of Congress Say About the Supreme Court and Why It Matters.” Chi.-Kent L. Rev. 93 (2018): 453.