Theories Of Judicial Restraint

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Judicial restraint; what is it, or better yet, who is it? Judicial restraint is a judicial theory in which the judge does not administer his or her own political preferences onto the ruling of any certain case. One key characteristic of a judge who adheres to this judicial theory is the hesitancy to strike down laws, because judicial restrainers do not see themselves as being able to make law from the bench. Other major corresponding characteristics and ideologies judicial restrainers frequently share with one another is their firm, textualist view of the constitution, adherence to originalism in comparison to nonoriginalism, state rights advocates, and sometimes participation in republican politics. Roger B. Taney is an important restrainer …show more content…
In Minersville School District v. Gobitis (1940) Frankfurther displayed judicial restraint verbatim, here he delivered the Court 's majority opinion upholding a law that required all kids attending a public school to salute the flag and face punishment if they did not, even though he was personally opposed to this sort of demand. In Gobitis, Frankfurther said that the court should not use its power "unduly" and act as if they are legislators from the bench. Three years later in West Virginia State Board of Education v. Barnette (1943) the court overruled itself and in his heated dissent Frankfurther continued to defend and reason for his position of judicial restraint. In Dennis v. United States (1951) he ruled with the majority that Dennis did not have the First Amendment right of free speech, if the speech involved dealt with conspiring to overthrow the United States Government. Frankfurther was much less hospitable to claims made by those accused of violating free speech much less any constitutional right than were either Black or Douglas. For years to come the Black-Frankfurther, activist-restrainer faction on the court never seemed to dissipate as the cases that continued to reached the court were exactly of the kind of thing they disagreed on the most. As the courts position on the various cases it decides changed through the years, just as it always does, Frankfurther 's last vestige of defense for judicial restraint came in his dissent in Baker v. Carr (1962), which can basically be summed up by saying that not every political aliment should be solved by the courts. In this case residents of Tennessee said that because of how the Tennessee legislature was set up, votes in rural areas carried

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