To begin with, in the judicial system, there is an ongoing dispute over what compromises the proper amount of judicial power. The lack of agreement concerning policymaking power of courts is reflected in the debate over judicial activism versus judicial restraint. In general, these two theories represent the conflicting approaches taken by judges in their task of interpretation. Thus, the Court may choose to play an active or passive role in politics by either changing or upholding public policy.
First, Judicial Activism is the Court’s willingness to make significant changes in public policy by striking down or disregarding precedents, by overturning acts of Congress, state and local laws, or by creatively reinterpreting the text of the …show more content…
In particular, Justices avoid making substantial changes in policy by faithfully applying precedent and upholding prior Court decisions, adjourning to the elected branches, and following rigorously to the text of the Constitution. At large, the Court’s rulings reflect previous decisions of the Court in similar cases (stare decisis), the rulings uphold laws established by the Congress and respect the separation of powers, and the rulings avoid striking down laws unless they are clearly unconstitutional. At this juncture, the Court avoids making changes in policy to preserve the stability of law and stand by the principles of the separation of powers. Therefore, the Court’s rulings do not reflect Justices policy preferences because in essence they have no popular mandate. Overall, Judicial Restraint is reflected when the Court applies stare decisis, upholds laws and statutes and adheres strictly to the Constitution, in which there are no changes in public …show more content…
For example, the 1990 United States v. Eichman decision reflects both judicial activist and judicial restraint. In the United States v. Eichman case, Shawn Eichman was prosecuted under the Federal Flag Protection Act of 1989 for burning American flags on the steps of the Capitol. In the Supreme Court case, Eichman and others argued that the Federal Flag Protection Act violated the First Amendment. Courts in Washington State and in the District of Colombia agreed, thus the United States government then appealed to the Supreme Court. As a result, the Courts decision stated that the government cannot prosecute an individual for burning a United States flag because flag burning was a form of expression protected under the First Amendment. Justice William Brennan rejected the government’s argument that the law protects the flag’s integrity as a symbol of the nation and certain national
First, Judicial Activism is the Court’s willingness to make significant changes in public policy by striking down or disregarding precedents, by overturning acts of Congress, state and local laws, or by creatively reinterpreting the text of the …show more content…
In particular, Justices avoid making substantial changes in policy by faithfully applying precedent and upholding prior Court decisions, adjourning to the elected branches, and following rigorously to the text of the Constitution. At large, the Court’s rulings reflect previous decisions of the Court in similar cases (stare decisis), the rulings uphold laws established by the Congress and respect the separation of powers, and the rulings avoid striking down laws unless they are clearly unconstitutional. At this juncture, the Court avoids making changes in policy to preserve the stability of law and stand by the principles of the separation of powers. Therefore, the Court’s rulings do not reflect Justices policy preferences because in essence they have no popular mandate. Overall, Judicial Restraint is reflected when the Court applies stare decisis, upholds laws and statutes and adheres strictly to the Constitution, in which there are no changes in public …show more content…
For example, the 1990 United States v. Eichman decision reflects both judicial activist and judicial restraint. In the United States v. Eichman case, Shawn Eichman was prosecuted under the Federal Flag Protection Act of 1989 for burning American flags on the steps of the Capitol. In the Supreme Court case, Eichman and others argued that the Federal Flag Protection Act violated the First Amendment. Courts in Washington State and in the District of Colombia agreed, thus the United States government then appealed to the Supreme Court. As a result, the Courts decision stated that the government cannot prosecute an individual for burning a United States flag because flag burning was a form of expression protected under the First Amendment. Justice William Brennan rejected the government’s argument that the law protects the flag’s integrity as a symbol of the nation and certain national