Judicial Activism v. Judicial Restraint 2 Philosophies of the Court

Judicial Restraint  Philosophy: courts should allow states and two other branches of gov’t to solve social, economic, political problems (Gay Marriage, Assisted Suicide, etcl)  Courts should only act when there are clear constitutional questions  Courts should interpret law; not make it  Courts should follow original intent of Founders: decide case, according to what founders wanted  Philosophy: courts should allow states and two other branches of gov’t to solve social, economic, political problems (Gay Marriage, Assisted Suicide, etcl)  Courts should only act when there are clear constitutional questions  Courts should interpret law; not make it  Courts should follow original intent of Founders: decide case, according to what founders wanted

Example from Obegfell v. Hodges  Justice Samuel Alito wrote… ”the decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage through the democratic process.”  Justice Samuel Alito wrote… ”the decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage through the democratic process.”

Judicial Activism  Philosophy: Courts should take an active role in using the Constitution to rule over state laws that infringe on peoples rights. (Critics charge…”its legislating from the bench and imposing one’s policy opinions into law)  Examples:  Brown v. Board of Ed. (1954)  Texas v. Johnson (1989)  Gun Free School Zones Act (U.S. v. Lopez, 1995)  Clinton v. N.Y. (1998)  Bush v. Gore (2000)  Atkins v. Virg., (2002)  Lawrence v. Texas (1998)  Philosophy: Courts should take an active role in using the Constitution to rule over state laws that infringe on peoples rights. (Critics charge…”its legislating from the bench and imposing one’s policy opinions into law)  Examples:  Brown v. Board of Ed. (1954)  Texas v. Johnson (1989)  Gun Free School Zones Act (U.S. v. Lopez, 1995)  Clinton v. N.Y. (1998)  Bush v. Gore (2000)  Atkins v. Virg., (2002)  Lawrence v. Texas (1998)

Example from Obegfell v. Hodges  Justice Elena Kagan--- “when a majority reads the Constitution as protecting a right that a state law has infringed on, it strikes down that law....that is the justice’s job….we don’t live in a pure democracy, we live in a Constitutional democracy, the Constitution puts limits on what people can do…and this is one of those cases….does the Constitution prevent the democratic processes from operating purely independently.”

Historical Developments  20th C. - Liberals complained about conservative court when it struck down laws (e.g., minimum wage, child labor, NRA, AAA)  FDR responds with court packing attempt in 1937 (court’s “switch in time that saved nine” prevented this)  Warren Court ( ); Conservatives complain about judicial activism of liberals  Miranda Warnings  Brown v. Board  School Prayer (Engel v. Vitale)  Baker v. Carr  20th C. - Liberals complained about conservative court when it struck down laws (e.g., minimum wage, child labor, NRA, AAA)  FDR responds with court packing attempt in 1937 (court’s “switch in time that saved nine” prevented this)  Warren Court ( ); Conservatives complain about judicial activism of liberals  Miranda Warnings  Brown v. Board  School Prayer (Engel v. Vitale)  Baker v. Carr

A Few Restraints on Judicial Power  No enforcement  Cannot “take cases”  Cannot “create cases”  Presidential Appts.  Congress  Stare Decisis (Precendent)  Existing Laws  The Constitution  Public Opinion: Courts will eventually reflect public opinion b/c justices are appointed by Presidents elected by people.  No enforcement  Cannot “take cases”  Cannot “create cases”  Presidential Appts.  Congress  Stare Decisis (Precendent)  Existing Laws  The Constitution  Public Opinion: Courts will eventually reflect public opinion b/c justices are appointed by Presidents elected by people.

Historical Developments (Cont’d)  Burger Court ( )- less activist, but upset conservatives with Roe v. Wade / UC Regents v. Bakke  Rehnquist Court ( ) - liberals accuse conservatives of being too activist by overturning/ruling on  Gun Free School Zones Act (Congress passing gun restrictions)  Bush v. Gore Roberts Court (2005-Present): Seen as more conservative Citizens United v. FEC (2010) NFIB v. Sebelius (2012)---Ruling on ACA (Obamacare)  Burger Court ( )- less activist, but upset conservatives with Roe v. Wade / UC Regents v. Bakke  Rehnquist Court ( ) - liberals accuse conservatives of being too activist by overturning/ruling on  Gun Free School Zones Act (Congress passing gun restrictions)  Bush v. Gore Roberts Court (2005-Present): Seen as more conservative Citizens United v. FEC (2010) NFIB v. Sebelius (2012)---Ruling on ACA (Obamacare)