1. Judicial Power Activism v. Restraint

2. Judicial Review A function of judicial discretion The ability of a court to review the applicability of law in an individual case When combined with precedent, judicial discretion allows courts to shape or adjust policy Especially controversial in constitutional questions

3. The Basis for Judicial Review Marbury v. Madison (1803) Marbury v. Madison (1803) William Marbury one of John Adams’ ‘midnight appointments’ William Marbury one of John Adams’ ‘midnight appointments’ Marbury reports to the Secretary of State Marbury reports to the Secretary of State Secretary Madison refuses to grant the appointment Secretary Madison refuses to grant the appointment Marbury asks SCotUS to issue a Writ of Mandamus (a court order) Marbury asks SCotUS to issue a Writ of Mandamus (a court order)

4. Questions raised by Marbury Can the Court decide Constitutional Questions? Can the Court exercise powers not stated in the Constitution? Can the Court issue writs of mandamus? It’s not in the Constitution… Should the Court grant Marbury a writ of mandamus? Yes No Yes

5. Now that The Court has this power, how should they use it? Judicial Restraint Judicial Restraint Advocates of restraint argue this power should be used sparingly Advocates of restraint argue this power should be used sparingly Judicial Activism Judicial Activism Advocates of activism argue this power should be used whenever it serves justice Advocates of activism argue this power should be used whenever it serves justice Original Intent Original Intent Advocates of original intent argue one must determine what the authors of the law meant and act in accordance with that meaning Advocates of original intent argue one must determine what the authors of the law meant and act in accordance with that meaning

6. Judicial Restraint Self-imposed limitation on judicial power Self-imposed limitation on judicial power Judges defer to policy judgments of elected government Judges defer to policy judgments of elected government Courts may decide constitutionality, but not the wisdom of a law Courts may decide constitutionality, but not the wisdom of a law Yet courts often equate constitutionality with wisdom Yet courts often equate constitutionality with wisdom Courts should not read their own philosophies into the Constitution Courts should not read their own philosophies into the Constitution Avoid direct confrontation with Congress, Presidency or the states Avoid direct confrontation with Congress, Presidency or the states Federal judges are not elected, ergo not in a position to impose their will Federal judges are not elected, ergo not in a position to impose their will Except where there is a clear violation of constitutional principle, judges defer to elected bodies Except where there is a clear violation of constitutional principle, judges defer to elected bodies The “manifest tenor” argument from Federalist #78 The “manifest tenor” argument from Federalist #78 "The courts should interpret the laws, not make them." -- Sandra Day O'Connor "The courts should interpret the laws, not make them." -- Sandra Day O'Connor Case by case decisions Case by case decisions

7. Judicial Activism Making of new law through judicial interpretation of the Constitution Making of new law through judicial interpretation of the Constitution Judges shape constitutional interpretation through decisions Judges shape constitutional interpretation through decisions Seek to adjust constitutional meaning to the "complexity of modern society" (Brennan) Seek to adjust constitutional meaning to the "complexity of modern society" (Brennan) Anticipate the establishment of precedent Anticipate the establishment of precedent Vigorously review actions of other branches Vigorously review actions of other branches Strike down acts that judges view as unconstitutional Strike down acts that judges view as unconstitutional Impose far-reaching remedies for legal wrongs Impose far-reaching remedies for legal wrongs "The Constitution is a sublime oration on the dignity of man…I hope to embody a community striving for human dignity for all, although perhaps not yet arrived." -- William J. Brennan, Jr. "The Constitution is a sublime oration on the dignity of man…I hope to embody a community striving for human dignity for all, although perhaps not yet arrived." -- William J. Brennan, Jr.

8. Rules of Restraint Agreed by both activist and ‘restraintist’ judges Agreed by both activist and ‘restraintist’ judges Courts may only decide actual cases; it cannot advise Courts may only decide actual cases; it cannot advise Courts may not decide hypothetical cases Courts may not decide hypothetical cases Courts are limited in scope only to the facts of the actual case. Courts are limited in scope only to the facts of the actual case. Courts may not decide constitutional questions if some other ground exists Courts may not decide constitutional questions if some other ground exists Courts may not decide the validity of a law if complainants fail to demonstrate injury by the law Courts may not decide the validity of a law if complainants fail to demonstrate injury by the law When in doubt, the court must seek a constitutional interpretation of law before declaring it unconstitutional (Show how the law in question is "pursuant") When in doubt, the court must seek a constitutional interpretation of law before declaring it unconstitutional (Show how the law in question is "pursuant") The Supreme Court may only hear cases where complainants have exhausted available remedies in lower courts or state courts The Supreme Court may only hear cases where complainants have exhausted available remedies in lower courts or state courts Courts will only invalidate a law when a constitutional issue is crucial to the case Courts will only invalidate a law when a constitutional issue is crucial to the case Courts should refuse to hear political questions Courts should refuse to hear political questions Decisions about constitutionality are confined to particular sections of the law deemed questionable. Decisions about constitutionality are confined to particular sections of the law deemed questionable.