The Supreme Court of the United States has frequently participated in the concepts of judicial activism and judicial restraint. Many courts have been known to be either strictly activist or strictly restraint. However, recent history shows that nine justices in a single term can use activism in one case and restraint in another. Judicial restraint occurs when the justices rely more heavily on past case law and legal interpretations already presented when making decisions. While judicial activism occurs when justices go beyond interpretations and lean more toward personal preferences and current political trends in rendering decisions. Predicting which theory justices will rely upon can be a simple task based on the history of a particular court and the current political aura in society, however, this does not mean that cases are prejudged.
Judicial restraint is the idea that in legal decision making, judges should not interject their own interpretation and preference. Judicial restraint is rendered when judges interpret the law using legislative intent, plain meaning, legal precedent and strict textual interpretation of laws. The judges avoid constitutional issues there is a clear violation of the Constitution. Judicial restraint should be followed by judges because judges are not makers of law they are simply interpreters of the law. Judges were not meant to be powerful actors in the government and such roles should be restricted to the legislative and executive branches. The legislative and executive branch members are representatives of the citizens who voted them into office. Judges are appointed by politicians and as such, should remain within the bounds of the language of the laws created by the elected officials. Our system of government is based on majority rule. Officials who are unelected should not make law. A recent example by the Supreme Court is Arizona State Legislature v. Arizona Independent Redistricting Commission which upheld Arizona’s use of an independent commission to adopt congressional districts.
Judicial activism is the idea that judges should interpret laws using their own personal preferences and political viewpoints as they coincide with contemporary society. It is the belief that judges should provide further textual meaning to the interpretation of laws. Judicial activism ensures that all three branches of government are equal. This ensures an actual check and balance in government. Judicial activism is necessary because it allows for judicial review and the rectifying of injustices that may have been uninterrupted or disregarded by other branches of government. Judicial activism is necessary becomes times change and interpretation should change as well. The constitution should be interpreted to meet the issues as they currently appear in society. Activism also provides a reshoring of gaps and uncertainties that are inherent in laws. Judicial activists of the Supreme Court have recognized the rights of minorities. The most recent decision reflecting an activist judiciary was Obergefell v. Hodges which struck down gay marriage bans.
The upcoming term of the Supreme Court is scheduled to hear Whole Woman’s Health v. Cole, No. 15-274 in March 2016. This is a Texas case challenging state abortion laws. This is the first abortion case the Supreme Court has chosen to address in nine years. I would predict that the activists on the court will present the holding and abortion laws will change throughout the United States. The case of Hurst v. Florida, No. 14-7505 concerning the death penalty was argued on October 13, 2015 and the decision is yet to be announced. The question presented to the court is whether a defendant that is eligible for the death penalty has right to a jury determination. The decision has the potential to affect several pending cases of prisoner’s sentenced to death. Although the current Supreme Court has the potential to reflect judicial restraint, the court will likely rule in an activist manner in this case. I do not believe the ability to predict the outcome of case and how the court will likely rule results in prejudgment of cases. I think the ability to predict is based on the judicial activist belief that since society is always changing, laws should change as well.
Bibliography
Bendor, A. L. (2011). The Relevance of the Judicial Activism vs. Judicial Restraint Discourse. Tulsa Law Review, 2(3). Retrieved from http://digitalcommons.law.utulsa.edu/cgi/viewcontent.cgi?article=2816&context=tlr
Hurley, L. (2015, November 16). How A Supreme Court Ruling on Abortion Could Wreak Havoc in the States. Retrieved from Huffington Post: http://www.economist.com/blogs/democracyinamerica/2015/07/judicial-politics-0
Irons, P. (1988). Making Law: The Case for Judicial Activism. Valparaiso Universtiy Law Review, 23(1), 25-52. Retrieved from http://scholar.valpo.edu/cgi/viewcontent.cgi?article=2033&context=vulr
Those "activist" judges. (2015, July 8). The Economist. Retrieved from http://www.economist.com/blogs/democracyinamerica/2015/07/judicial-politics-0
United States Supreme Court Decisions: 2015-2016 Term. (2016). Retrieved from Death Penalty Information Center: http://www.deathpenaltyinfo.org/united-states-supreme-court-decisions-2015-2016-term
