Judicial activism versus judicial restraint is one of the debates that has influenced American jurisprudence for many years. The reason for this is that it is very easy for any human’s mind to be clouded by their personal beliefs. In fact, in many professions, professional struggle with the ability to do what is right for their job versus what may be their moral principles or personal beliefs. It is based on this framework that the debate between judicial activism and judicial restraint originates. Judicial activism refers to the judicial rulings that are decided upon the judge’s political beliefs, (Taylor, Stuart, 2016). Judicial restraint transpires when judges successfully separate their political views and enable themselves to rule independent of what they may morally believe, (Bork, Robert, 2016). Within the discipline of law there is a heated debate as to which framework is better for the public. Two scholars who debate judicial activism and judicial restraint in their writings are Robert Bork and Stuart Taylor. This paper will focus on their writings titled “From The Tempting of America” and “Who’s Right About the Constitution?” and assess their relevance to the debate that exists pertaining to the benefits of judicial restraint when the temptation of judicial activism exists for the taking.
Within Robert Bork’s text, he brings up an important point regarding law when he states that the idea of interpreting law in the method in which the Constitution was drafted has become theoretically passé, (Bork, Robert, 2016). What Bork is stating with this quotation is the tendency for the American legal system to sheer away from the method in which the laws were originally designed and implement “creative legislation” that at times, invents clauses to satisfy a political end. This is an important realization to uncover when discussing the relevance of exercising judicial restraint. The reason that judicial restraint is seen as a necessary element of the judicial system is that it seeks to preserve the original framework that the founding fathers intended when the drafted the United States Constitution, (Bork, Robert, 2016). What this framework truly does is to protect the scope of law as it is analyzed in the courtroom. By doing so, the activist of judicial restraint sees an understated preservation of the legal framework that was intended by the founding fathers and that exists in the United States Constitution, (Bork, Robert, 2016).
In contrast, the activist of judicial activism sees the advocate of judicial restraint to be too conservative and unconcerned with the need to implement political change. Judicial activism was essentially born when there were pivotal gaps in the United States Constitution regarding what the founding father’s intended. Where this has become particularly relevant is in the areas of the civil rights debates, abortion, and gay marriage. These topics were not clearly spelled out by the United States Constitution and thus, the courts have been forced to create a creative response to these issues that may not necessarily explicitly exist within the original text of the United States Constitution.
One scholar who presents a sensational argument relating to the importance of judicial activism is Stuart Taylor. One of Taylor’s most successful analogies within his text transpires when he refers to the activist’s perspective as a chameleon jurisprudence that consistently changes color and form in each unique era, (Taylor, Stuart, 2016). This is truly a spectacular assessment of what the Constitution has done in a sense and shows how, at times, judges have to decide how modern issues fit into the original framework of the United States Constitution, (Taylor, Stuart, 2016). The United States surely has seen these issues presented many times in the country’s history due to the evolution of society and how judges have been forced to interpret the United States Constitution through the founding father’s eyes in the modern world.
What is fascinating about both Bork and Taylor’s text is that in their clear preference of either judicial activism or restraint, they both appear to write from seeing both sides of the argument. The reason that this observation can be made is that Bork states the necessity to utilize the original language of the Bill of Rights, otherwise, the clauses would be useless, (Bork, Robert, 2016). That being said, Bork also assesses an element of his argument relating to the need of the judges to be open minded in their interpretations of these older drafted clauses, but to challenge those judges to also not lose sight of the originally drafted text itself when deliberating their verdicts, (Bork, Robert, 2016). Taylor, on the other hand takes the reverse stance, but still meets Bork in the middle. What Taylor does is that he describes the extreme of judges thinking that they know best and the danger of this to interfering with the initial legal intent of the text; however, Taylor also eludes to that judicial chameleon mentioned previously that allows the United States Constitution to transcend the eras of time successfully, (Taylor, Stuart, 2016). This is a fascinating comparison because both authors do show an appreciation or understanding of the other, but are merely cautioning the extreme sides of judicial activism and restraint.
Judicial activism and restraint, as highlighted by these authors, is surely a debate that will exist for many years to come. The reason for this is that, as the United States Constitution ages even more, there are surely going to be new ways of life that the text was not intended to clarify in judicial deliberations. This is why these two ideologies will always be head-to-head in that they represent two pivotal ways of legal thought that truly do have the power to shape how the American society will make its social, political, and economic policies in future years if they are required to be reviewed, analyzed, deliberated, and discussed by the judges within the courts.
References
Bork, Robert. “From The Tempting of America.” Course Materials. 2016. Web. 2 May 2016.
Taylor, Stuart. “Who’s Right about the Constitution? Meese v. Brennan.” Course Materials. 2016. Web. 2 May 2016.
