Judicial activism and judicial restraint refer to different approaches to legal decisions, with the former taking into account changing times and the spirit of the law, while the latter is based on a strict interpretation of the law and precedent. These terms are often misinterpreted as liberal or conservative viewpoints, but can be practiced by judges of any political persuasion. Judicial activism can be seen as “lawmaking from the bench,” while judicial restraint can allow for the existence of unjust laws. Both approaches have their advantages and disadvantages.
“Judicial activism” and “judicial restraint” are two terms used to describe the philosophy and motivation behind some judicial decisions. Unfortunately, the popular use of both terms has led to considerable confusion about their actual meaning and correct application. At the most basic level, judicial activism refers to a theory of judgment that takes into account the spirit of the law and changing times, while judicial restraint is based on a strict interpretation of the law and the importance of legal precedent.
In many cases, whether a particular judge or court can be labeled an “activist” or “detained” implies a careful look back at the history of the sentences. An activist judge, for example, may have a pronounced history of precedent overturning and active legislation. Furthermore, a pattern aligning political and ideological preferences with decisions would likely emerge. An activist judge can be conservative or liberal in his views. One factor that can define an activist is adherence to personal or political philosophies through judgment regardless of the law.
A judge or court that engages in a judicial restraint policy, by contrast, may have a history of abiding by the laws as written and adhering to precedent. The political composition of a court based on moderation should have little effect on decisions, as judges will likely be more concerned with strict adherence to existing law. Some experts also argue that court decisions based on moderation will have more consensus across all decision benches, since a strict interpretation of the law likely allows little wiggle room for dissent.
As far as philosophical differences go, judicial activism and judicial restraint are simply two different descriptions of legal decisions. Problems and confusion about the meaning of these terms tend to start when these philosophies are placed in a framework of good versus evil, moral versus immoral, or objective versus subjective positions. Judicial activism is also often but incorrectly associated with liberalism, while judicial restraint is also misinterpreted as a conservative viewpoint. Indeed, it can be argued that some decisions are examples of conservative judicial activism, while others can be considered examples of liberal judicial activism.
Judicial activism is sometimes derisively referred to as “lawmaking from the bench” or usurping the legislative power granted to state and national legislators by making decisions that require a change in policy. On the other hand, some of the landmark US Supreme Court cases, such as Brown v. Board of Education, ignored both previous and state laws in outlawing the segregation of public schools. While judicial restraint can be characterized as an oversimplified philosophy that allows for the existence of unjust, but not unconstitutional, laws because of precedent, it nonetheless helps to keep the potential power of the judicial branch in check, strictly adhering to the belief that the power limited helps maintain freedom.
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