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Judicial Restraint vs Activism

22. What are the theoretical (political) views toward judicial review?

As previously discussed, appellate courts have the power of judicial review. This includes the power to review laws passed by the legislative body or actions by the executive and to declare them to be unconstitutional and void. Two primary views exist regarding the role of the judiciary in executing its authority:

•    Judicial Restraint – Proponents of judicial restraint believe that the judiciary’s power of review should not be used except in unusual cases. They specifically believe that review of laws that has the effect of expanding or limiting the understanding of constitutional rights are too important to be decided by courts unless absolutely necessary. As such, any case that requires analysis of and interpretation as to the extent of rights afforded under the Constitution are to be avoided if there is another legal basis for a decision. Proponents of judicial restraint also believe that litigation is not the appropriate technique for bringing about social, political, and economic change. That is, social, political, and economic change should only result from the passage of laws by the legislative branch of the federal or state government.

•    Judicial Activism – Proponents of judicial activism support the use of the judiciary’s power of review. They believe that judicial interpretation of laws is the appropriate vehicle for developing legal standards and should be used whenever justified by the needs of society or public sentiment. Proponents of judicial activism also believe that constitutional issues must be decided within the context of contemporary society. They adopt the view that the meaning of the Constitution is relative to the collective beliefs, sentiments, and values of society at the time in which the law is being interpreted.

These views of the role of appellate courts have become largely a political issue.

•    Discussion: What are the major arguments in favor of or against judicial restraint? Judicial Activism? How do these points of view align with the beliefs of major political parties within the United States?

•    Practice Question: ABC Corporation spends a great deal of money each year lobbying politicians. It contributes tens of millions of dollars of shareholder money to political action committees that support particular political candidates that support policies favorable to ABC. ABC tasks you with researching political candidates to identify which candidates actively endorse the view of judicial restraint? Why do you think this information is relevant and valuable to ABC?

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