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5.8: Issues Raised by Judicial Activism and Judicial Restraint

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    Figure 5.8.1: The Supreme Court hears cases that involve the Constitution or laws.

    Established by the United States Constitution, the Supreme Court began to take shape with the passage of the Judiciary Act of 1789 and has enjoyed a rich history since its first assembly in 1790. The Supreme Court is deeply tied to its traditions: Of the federal government’s three branches, the Court bears the closest resemblance to its original form – a 225 year old legacy.

    Figure 5.8.2

    Judicial Activism

    Judicial Activism is when the court strikes down a duly enacted law created by Congress. That is the FORMAL meaning, its descriptive meaning, but in politics, commentators and critics often call a decision to strike down a law “judicial activism” if they don’t like the court’s action. If they do like the court’s decision, they don’t use that term.

    The suspicion is that the judge is striking down a law due to personal reasons. The controversy with judicial activism is the perception that it crosses the scope of the Judicial branch; thereby negating the separation of powers.

    The 2008 Republican platform declared that "judicial activism is a grave threat to the rule of law because unaccountable federal judges are usurping democracy, ignoring the Constitution and its separation of powers, and imposing their personal opinions upon the public."

    Cases that Demonstrate Judicial Activism:

    Engel v. Vitale

    Facts of the Case

    The Board of Regents for the State of New York authorized a short, voluntary prayer for recitation at the start of each school day. This was an attempt to defuse the politically potent issue by taking it out of the hands of local communities. The blandest of invocations read as follows: "Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us, our teachers, and our country."


    Does the reading of a nondenominational prayer at the start of the school day violate the "establishment of religion" clause of the First Amendment?


    Decision: 6 votes for Engel, 1 vote(s) against

    Legal provision: Establishment of Religion

    Yes. Neither the prayer's nondenominational character nor its voluntary character saves it from unconstitutionality. By providing the prayer, New York officially approved religion. This was the first in a series of cases in which the Court used the establishment clause to eliminate religious activities of all sorts, which had traditionally been a part of public ceremonies. Despite the passage of time, the decision is still unpopular with many Americans.


    Prohibited organized prayer in public schools and has become an important linchpin in the current “separation of church and state” policies. This remains a hotly debated topic with extreme divisiveness and disagreement on both sides of the debate. Ultimately, this case created a clear boundary between the business of government and the institution/endorsement of religious practices in public institutions (primarily public schools but extended to other government institutions at the federal, state, and local level as well)

    Miranda v. Arizona (1966)

    Facts of the Case

    The Court was called upon to consider the constitutionality of a few instances, ruled on jointly, in which defendants were questioned: "while in custody or otherwise deprived of [their] freedom in any significant way." In Vignera v. New York, the petitioner was questioned by police, made oral admissions, and signed an inculpatory statement all without being notified of his right to counsel. Similarly, in Westover v. United States, the petitioner was arrested by the FBI, interrogated, and made to sign statements without being notified of his right to counsel. Lastly, in California v. Stewart, local police held and interrogated the defendant for five days without notification of his right to counsel. In all these cases, suspects were questioned by police officers, detectives, or prosecuting attorneys in rooms that cut them off from the outside world. In none of the cases were suspects given warnings of their rights at the outset of their interrogation.


    Does the police practice of interrogating individuals without notifying them of their right to counsel and their protection against self-incrimination violate the Fifth Amendment?


    Decision: 5 votes for Miranda, 4 vote(s) against

    Legal provision: Self-Incrimination

    The Court held that prosecutors could not use statements stemming from custodial interrogation of defendants unless they demonstrated the use of procedural safeguards "effective to secure the privilege against self- incrimination." The Court noted that "the modern practice of in-custody interrogation is psychologically rather than physically oriented" and that "the blood of the accused is not the only hallmark of an unconstitutional inquisition." The Court specifically outlined the necessary aspects of police warnings to suspects, including warnings of the right to remain silent and the right to have counsel present during interrogations.


    In a 5-4 vote, the Court agreed that Miranda’s rights had been violated and ordered his conviction struck down. Today, the issues of due process and the rights of those accused of a crime are still of great importance. While some may argue that protecting individual rights of accused persons places an undue burden on the victims of crimes and makes it harder for the state to get a conviction there are those who also argue that having too few protections for the accused would result in abuses of power. They fear that innocent people might be subject to coercion through violence resulting in false confessions. The courts are required to balance the rights of those who are accused of crimes with the rights and protections that society must afford to those who would be the victim of a crime. We see this decision on every “police officer show” and in the news when people are arrested or interrogated and are read the famous “Miranda Warning.”

    Example Miranda Warning:

    You have the right to remain silent when questioned. Anything you say or do may be used against you in a court of law. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish. If you decide to answer any questions now, without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney. Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?

    Figure 5.8.3

    Judicial Restraint

    Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional, though what counts as obviously unconstitutional is itself a matter of some debate. Judicial restraint is sometimes regarded as the opposite of judicial activism. In deciding questions of constitutional law, judicially restrained jurists go to great lengths to defer to the legislature. Judicially restrained judges respect stare decisis, the principle of upholding established precedent handed down by past judges

    Those who hold judicial restraint views believe that the courts should leave policy decisions to the legislative and executive branches. Advocates of this view argue that the federal courts, composed of unelected judges, are the least democratic branch of government and that judges should not get involved with politics.

    Example of Judicial Restraint

    Schenck v. United States (1919)

    Facts of the Case

    During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment.


    Are Schenck's actions (words, expression) protected by the free speech clause of the First Amendment?


    Decision: 9 votes for United States, 0 vote(s) against

    Legal provision: 1917 Espionage Act; US Constitution Amendment 1

    Holmes, speaking for a unanimous Court, concluded that Schenck is not protected in this situation. The character of every act depends on the circumstances. "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." During wartime, utterances tolerable in peacetime can be punished.


    This decision limited First Amendment right to free speech if it imposes a “clear and present danger” to the security of the United States or its people.

    Figure 5.8.4

    Judicial Review

    Judicial Review is the power of the courts to overturn laws or other actions of Congress and the Executive Branch based on their constitutionality. This principle allows courts to establish quasi-legislation (legislation created from the bench) which often leads to accusations of “judicial activism”.

    The Constitution is silent on the subject of judicial review, so the Supreme Court gave itself and lower courts power of judicial review in case of Marbury vs. Madison. Judicial review is rarely used. In fact, the Court has struck down only around 170 national laws (less than .25 percent of all passed) and around 1400 state laws in its more than 200-year history.

    Figure 5.8.5

    Study/Discussion Questions

    1. Define Judicial Activism.

    2. Explain why Judicial Activism is considered controversial.

    3. Define Judicial Revies.

    4. Explain how the case of Schenk v. United States illustrated a "clear and present" danger.


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