The Power Of Judicial Review Essay

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The power of judicial review was established by the Supreme Court in the 1803 case Marbury v. Madison and gives the judicial branch the ability to decide the constitutionality of a law or Executive action. Judicial review has no constitutional grounds, meaning that the Supreme Court essentially created its own power: the power to interpret the constitution. Since then, the balance between judicial activism and judicial restraint has varied greatly from era to era. Judicial restraint occurs when justices adhere to precedents set by existing legislation and previous cases, playing the typical “referee” role in the policymaking system (Edwards). This strategy is used to limit the power of the courts, and justices who favor restraint will typically rule based on past decisions to prevent any increase in judicial power. Judicial activism, on the other hand, is creating bold new policies (Edwards). Proponents of activism incorporate personal interpretations of the law rather than abiding to traditional precedents. This strategy has been used by various Supreme Courts, both liberal and conservative, to give the court a larger role in the policy making process (Edwards). The Supreme Court should act with judicial activism in cases that can be directly linked to explicitly stated rights and privileges in the Constitution, as in the cases Miranda v. Arizona and Obergefell v. Hodges, but should use judicial restraint in all other cases, because while it is the role of the Courts to
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