Judicial Activism And Judicial Restraint

expression of an opinion. The dissent in the case Tinker v. Des Moines can be reasoned that there

n response to the criticisms of those who are anti-judicial activism, “supporters of judicial activism say such activism through judicial review is necessary because it allows the courts to step in and fill gaps in the law where minorities are not protected because of political pressures and where politicians are afraid to legislate” . This raises the argument that judges and the judiciary play a balanced activist legislative role in such a way that it protects the rights of minorities from legislation or regulation imposed by the government. Within our democratic system, legislators will pay attention to what the majority wants and they will pursue public policies, which favour the majority. This leaves minority interests vulnerable to the legislations and regulations imposed by the government. By playing an active role, the judiciary ensures that the rights of the minorities are protected and that law does not contravene with the Charter of Human Rights and the Constitution of Canada. Through this kind of judicial activism, the courts strike a balance with the legislatures role. This is not to say that the judiciary takes on the role of policymaking and the legislature, but rather that both institutions embrace what is referred to as a “dialogue” where there is a balance between judicial decision-making and legislative-executive decision making . However, according to MacKay, “it is legitimate for the courts to engage in a form of judicial policy making so long as they do

Judicial activism and judicial restraint are two opposing philosophies when it comes to the Supreme Court justices' interpretations of the United States Constitution; justices appointed by the President to the Supreme Court serve for life,and thus whose decisions shape the lives of "We the people" for a long time to come.

Definition: the power vested in an appellate court to review/revise the decision of a lower court

Judicial Review – the power of the Supreme Court to say whether the federal, state, or local law or government action goes against the Constitution.

Judicial Activism: An approach to the law where the judiciary feel less constrained by precedents and interpret the law with the aim of pursuing social change. Evidence would be if the court overturned past decisions, legislation or executive actions in order to promote conservative or liberal objectives.

Primarily, judicial review consists of four main components.5 The first dynamic of judicial review is that the Supreme Court can reject any federal, presidential or congressional, act or law which is deemed to be unconstitutional centred upon the judiciary’s interpretation of the United States Constitution.6 For instance, the Supreme Court can void a presidential-line item veto, i.e. the President’s ability to erase part of a bill passed by the legislature involving taxation or spending.7 In addition, the second factor of judicial review is the authority of the Supreme Court to strike down any state act (gubernatorial) or law (state legislature), which is judged as unconstitutional based, again, upon the Court’s interpretation of the United States Constitution.8 One such example of this power being exercised is when the Supreme Court annulled California’s attempt to enforce congressional term limits.9

a. If justices do not agree with the lower court decision, they need the 4/9 agreement.

Nevertheless, some critics argue that the judidicary, some critics argue that the judiciary are the final arbiters of what is meant by the principle of separation of powers, which therefore provides the judiciary with subordinate levels of power. Moreover Chief Justice Hughes concluding that the ‘Constitution is what the judges say it is’ due to ability to interpret the constitution. In America, although Congress may new laws affecting courts, ultimately judges decide.

The establishment of one of the most influential powers of the Supreme Court--the power of judicial review-- and the development of the judicial branch can be attributed to Marshall’s insightful interpretation of the Constitution ("The Marshall Court”).

-The power of the judicial review is “A court’s power to review statutes to decide if they conform to the U.S. or state constitutions”. It is important to our legal system to have the power of the judicial review as a tool to the disposal of the courts when conflicts arise within the law or constitution.

power to make laws and set policies which rightfully belongs to the Congress and state legislatures. They state that Justices exceed their authorized powers of judicial review

Majority opinion- A judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision.

The debate between Judicial Activism and Judicial Restraint really grabbed my attention. Judicial Activism and Judicial Restraint are two different ways to interpret the constitution and its laws. Both interpretations have their own strengths and weaknesses, which is why it is so hard to come to a final decision of which is acceptable and which is not (in most cases). While at the debate I didn’t realize how many cases have boiled down to these two concepts. There have been many cases ended up being decided by both interpretations.

The judicial branch carries the most power because they have the ability to settle disagreements surrounding the meaning of law.The judicial branch takes power and has the ability to rectify disagreements enclosing the meaning of law.’’Decide if laws or actions by the president are constitutional’’