Introduction
According to the interpretation of the law, the judiciary is one of the critical branches of government that assists in upholding the Constitution and emphasizes that the rule of law is adhered to. Nonetheless, the role of that judiciary has been under investigation, with some suggesting that judges have become too powerful. As a result, they participate in judicial Activism through legislating from the bench. However, it is worth noting that judicial Activism is a controversial issue. It is commonly related to liberal judges who are viewed to be using their authority to develop progressive policy goals.
Nevertheless, over recent years, conservative justices and judges have been indicted for taking part in Activism, particularly with respect to reversing the precedents and challenging the power of elected institutions. Moreover, the idea of Activism has been challenged, with some suggesting that it is typically a means of denouncing court decisions that one fails to agree with instead of a valuable difference between various perspectives of the law. Thus, the idea of Activism can still help recognize decisions that may be going beyond the bounds of traditional judicial practice. This essay seeks to traverse what comprises a proper role for the judiciary, what it means for a court to be activist or reveal judicial restraint, and how both liberals and conservatives participate in judicial Activism.
The role of the judiciary
The Constitution of the United States offers the judiciary authority to interpret the law and ensure that it is applied consistently and fairly. The judiciary is also accountable for making sure that the actions of the branches, legislative and executive, conform with the Constitution and the law. This is commonly regarded as the perspective of separation of power (Stein, 2019). However, the judiciary’s role is also controversial in the united states. While the debate lies on the role of judges in interpreting and applying the law, some people argue that judges should actively participate in modeling the law and developing social progress. At the same time, on the hand, others claim that judges should limit themselves in the process of interpretation of the law as it is documented and refrain from using authority to develop their individual policy goals.
Moreover, the judiciary’s role is to review the constitutionality of laws. According to (Prendergast, 2019), it has the authority to review the legality of the laws passed by the legislative branch. The judiciary’s role is to strike down the law violating the Constitution. This means that judges should not be biased or impacted by personal influences or political considerations. The Constitution should direct them. An appropriate role of the judiciary also directs that judges should limit themselves from participating in legislating from the bench or even developing policy decisions. This means that as judges interpret the law and apply it to particular cases, they should restrain from using their power to establish new laws or inflict their individual beliefs on the public (Dembi, 2022).
What it means for a court to be activist
A court being described as an activist means it normally engages in the decision-making process that exceeds the typical interpretation of the law. Rather, it decides based on social and political considerations (Cross & Lindquist, 2006). This means that a court is described as an activist if it uses its power to create new laws or develop policy decisions instead of just interpreting the existing laws. This often entails the court taking a more offensive stance in interpreting the Constitution in such a way that develops a certain social or political theme. For instance, a court can be explained as an activist if it brings down a law that has broadly been acceptable by the Constitution over the years or even if it is directed by political considerations instead of legal analysis. This can certainly be controversial when the decision withdraws an existing legal precedent.
However, there exists criticism of activist courts, with critics claiming that they subvert the democratic process and the elected leaders’ power. They suggest that courts restrain themselves from interpreting and applying the law as it is documented and not using their power to inflict individual beliefs or even develop political agendas (Emerson, 2022). Moreover, the proponents of activist law suggest that they are crucial to developing social progress and ensuring that the rights of vulnerable groups or the minority are safeguarded. They argue that courts are accountable for interpreting the law in a way it conforms with evolving social values and changing ideas of justice.
Judicial Activism is commonly linked to liberal judges, who are viewed as more likely to use their authority to develop progressive policy goals. Nonetheless, over recent years, conservative judges have also been convicted of taking part in judicial Activism since they have been more prevalent in overturning previous cases and challenging the power of elected institutions of government (Wynn, 2021).
Judicial restraint
Judicial restraint refers to the notion that judges should limit themselves to the interpretation and application of the law to the facts of the case at hand (Balkin, 2019). This means that they should refrain from using their authority to develop their policy goals or replace their ruling with that of the legislature. This perspective is often related to conservative judges and justices. Nonetheless, even the judges who recommend judicial restraint identify that there are extents to this perspective.
Role of the Concept of Activism
Considering that both conservatives and liberals participate in judicial Activism, some have challenged the neediness of the idea of Activism. The concept typically condemns the court’s decisions that one fails to agree with instead of a meaningful differentiation between various law perspectives. In contrast, others argue that Activism is still crucial as it assists us in recognizing decisions that may exceed the bounds of traditional judicial practice.
Conclusion
The role played by the judicial in the United States is interpreting the law and making sure that it is applied unbiasedly. The question of what comprises an appropriate role of the judiciary has been debated over the years. Additionally, judicial Activism and judicial restraint are frequently used to explain various perspectives of the law. Judicial Activism is linked with liberal judges and justices, while judicial restraint is related to conservative judges. Over the years, both conservatives and liberals have been suspected of taking part in judicial Activism. The fact is that an appropriate role of the judiciary entails striking a neutrality between interpreting the law and honoring the difference of powers between the three main branches of government. However, it is crucial to note that the judiciary is obligated to uphold individual rights and ensure that the Constitution is honored.
References
Balkin, J. M. (2019). Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time. Texas Law Review, pp. 98, 215. https://heinonline.org/HOL/LandingPage?handle=hein.journals/tlr98&div=12&id=&page=
Cross, F. B., & Lindquist, S. A. (2006). The Scientific Study of Judicial Activism. Minnesota Law Review, 91, 1752. https://heinonline.org/HOL/LandingPage?handle=hein.journals/mnlr91&div=51&id=&page=
Dembi, D. (2022, May 8). Understanding Separation of Powers through Judicial Behavior. Papers.ssrn.com. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4103821
Emerson, B. (2022). Liberty and Democracy through the Administrative State: A Critique of the Roberts Court’s Political Theory. Hastings Law Journal, 73, 371. https://heinonline.org/HOL/LandingPage?handle=hein.journals/hastlj73&div=12&id=&page=
Prendergast, D. (2019). The judicial role in protecting democracy from populism. German Law Journal, 20(02), 245–262. https://doi.org/10.1017/glj.2019.15
Stein, R. A. (2019). What Exactly Is the Rule of Law? Houston Law Review, 57, 185. https://heinonline.org/HOL/LandingPage?handle=hein.journals/hulr57&div=7&id=&page=
Wynn, J. A. (2021). When Judges and Justices Throw out Tools: Judicial Activism in Rucho v. Common Cause. New York University Law Review, 96, 607. https://heinonline.org/HOL/LandingPage?handle=hein.journals/nylr96&div=17&id=&page=
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