Judicial Restraint Analysis

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As stated in the prompt for this essay arguments for judicial restraint often mirror those arguments for a formalist approach. A formalist approach is one that through law sets out to place limits on public actors. This definition of formalist approach is in an essence similar to judicial restraint. The similarity comes from many of the cases reviewed in our text where there were opinions of the court that exemplified the need to limit the exercise of the judicial power unless it was explicitly striking down laws that were obviously unconstitutional. Both work in a manner of approaching judicial decisions as those that should garner their authority from constitutional text, structure, and/ or original structure. As stated before there are several …show more content…
Rumsfeld, joined by Justice Stevens. This case involved the question of demands national security and the rights to personal liberties of United States citizens. The first approach that Scalia took in his dissent was to assert that it has been the constitutional tradition of our country, even when it came to citizens accused of waging war against the country, to prosecute him federal court for treason or another crime. This exemplifies the formalist approach because it looks to previous interpretations of the constitution and attempts to sway the court to follow the constitution strictly despite the fact that it is a different case with different circumstances. Scalia goes on to protest that the system of separation of powers that we have abided by in the past has protected us from indefinite imprisonment by the President, and to go against that would stop us from this protection. Again, he is attempting to showcase how reinterpreting constitutional text can have a harmful impact on our …show more content…
His dissenting opinions are astoundingly full of strict interpretations of the Constitutional text, which is how the formalist approach is meant to operate. But, we can also see how the formalist approach is compared to the idea of judicial restraint in his opinions. He calls several times for these political questions to be answered elsewhere, beyond the reach of the court. In doing so he is implying that the powers granted by the Constitution to the judicial branch shall not be overreached, and if they were to an answer political question that is precisely what they would be doing. Instead, he calls upon the court to interpret the text of the constitution strictly, in spite of the changing times which might inspire some justices of the court to do

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