Judicial Restraint: Case Study

1. Judicial activism and judicial restraint are two related ideas in the way that they are each other’s converse, sort of. Judicial activism is defined as the court’s willingness to enact substantial changes in public policy. Judicial activism can be exercised though the use of Judicial Review as granted in the landmark case Marbury v Madison. Also, striking down or disregarding precedents can be done as an act of judicial activism. Or, to exercise judicial activism the court may reframe the constitution creatively. To detect judicial activism, one should look for the courts to reinterpret the constitution, oust some legislation that they deem unconstitutional, or ending certain precedents by disregarding their existence. Judicial restraint, …show more content…
As we know, the judicial branch of the government welds certain power but in many ways is limited. There are certain factors that affect the Justiciability of any given case (i.e. mootness, ripeness). That being said, the court is prohibited from going out into the world in search of cases to rule on in order to affect public policy. That being said, just because a case comes to the court with a legitimate problem does not mean the court can rule on it. There is an example of this in the ruling of the apportionment case Baker v Carr and the cases that preceded it. In the cases preceding Baker v Carr the court could not rule because the cases were brought under violation of the grantee clause; in these cases the court could not rule because it could not answer the political question of what a republican form of government is. Finally, when Baker v Carr brought the same issue to the court under violation of the equal protection clause, a ruling was made. All of this is to illustrate that the courts only have select opportunities to rule on impactful policy issues, like malapportionment in Baker v Carr and like same sex marriage in Oberegfell v Hodges. (1) An opportunity like this is necessary in order for the court to exercise judicial activism, and any ruling in favor of the petitioner would be an act of judicial activism, as it would require one of the three aforementioned methods of ruling under judicial activism. In Baker v Carr the court’s ruling was an example of judicial activism. In Oberegfell v Hodges the court’s ruling was an example of judicial activism. (2) Also, based solely on the methods of the court can use to exercise judicial activism; the ruling in Oberegfell v Hodges meets all the criteria. Though interpretation of the constitution the court was able to declare the previously standing legislation from the states that same sex couples could not marry, unconstitutional while striking down the precedent that this issue is to be handled

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