JUDICIAL ACTIVISM & RESTRAINT What’s best for the US?

JUDICIAL ACTIVISM  Court should take active role in solving social, economic, & political problems  Courts uphold ‘guardian ethic’  Examples  Establishing ‘one man, one vote’ principle to reapportionment [Baker vs. Carr, 1961]  Requiring states to provide legal aid for the poor [Gideon v. Wainwright, 1963]  Striking down death penalty laws as violating 8 th Amendment [Furman vs. Georgia, 1972]  Striking down section 4 of the Voting Rights Act of 1965 [Shelby County vs. Holder, 2012]

JUDICIAL RESTRAINT  Courts should allow states and other two branches of government to solve social, economic, and political problems  Courts should act only in those situations where there are clear constitutional questions  Interpret, not make, law  Examples  Upheld restrictions on abortions [Planned Parenthood vs. Casey, 1992]  Ruled 2 nd amendment allows individuals to own firearms even if not part of a militia [DC vs. Heller, 2008]

HISTORICAL DEVELOPMENTS  Prior to 1937, liberals complained bout the conservative court being too activist wheni t struck down various reform-minded laws  FDR responded with his ‘court-packing’ attempt in 1938 & failed, but court began to accept New Deal legislation  Conservatives claimed about liberal court being too activist with advent of Warren Court [ ]  Rights of the accused [Miranda vs. Arizona, 1966]  Civil rights [Brown vs. Board, 1954]  Civil Liberties [Engel vs. Vitale, 1962]  Also during Burger Court [ ]  Roe vs. Wade

RESTRAINTS ON JUDICIAL POWER  Make decisions, but cannot enforce them  Cannot reach out & take cases, but must wait for the cases to come to them  Presidential appointment of judges  Congress  Senate confirmation of judges  Impeachment & removal  Increasing number of courts & judges, thus type of judges to Congress and President’s liking  Passing constitutional amendments  Re-passing laws deemed unconstitutional  Determining jurisdiction of courts  Stare decisis  Existing laws  Constitution  Public Opinion

CLASS ACTIVITY  Decide if Judicial Restraint or Judicial Activism is best for the United States  Read two essays: It’s Time to Ditch Judicial Restraint and Why Judicial Restraint Best Protects Our Rights from CATO Unbound  Write 1 paragraph supporting your belief & cite with specific evidence from previous instances of restraint or activism that you feel helped or hurt the US