A Comparison between Judicial Restraint and Judicial Activism in America

From the pre-Civil War era to the present day, the role of the Supreme Court in the United States has been a hotly debated topic. Whether the judiciary’s primary role is to exercise judicial restraint or judicial activism was never explicitly established, but an examination of historical cases and trends reveals that judicial activism has been far more common. Judicial restraint refers to the philosophy that the judicial branch should leave the active work of solving social, political, and economic problems to state governments and the other two branches of the federal government, while judicial activism places the onus of upholding the “guardian ethic” and actively solving social, political, and economic problems on the court system.

Many historians argue that judicial restraint has dominated, but a look at numerous historical Supreme Court cases proves otherwise. The argument of the prevalence of judicial restraint is largely based on a few notable cases of judicial restraint: namely, Dred Scott v. Sandford (1857), which upheld slavery in Missouri, Planned Parenthood v. Casey (1992), which upheld abortion laws, and District of Columbia v. Heller (2008), which upheld an individual’s right to bear arms. While these three cases are notable examples of judicial restraint, the cases alone are nonrepresentative of the larger historical period of white America.

Smaller instances of judicial restraint did indeed occur in lower courts, but a comparison of the Supreme Court cases of judicial restraint versus judicial activism shows Supreme Court judicial restraint cases to be far outnumbered. Judicial activism has been ever-present since the inception of the U.S. With activism defined as the active role of the court in furthering societal progress, solving issues, and forging new territory, a plethora of examples of judicial activism can be seen from the pre-Civil War era to the modern day. The hallmark example of nineteenth century judicial activism is Marbury v. Madison (1803). In this case, the Court formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. The case effectively blazed a metaphorical trail in the realm of political power: the whole concept of judicial review was codified.

Unlike Dred Scott v. Sanford (1857), which upheld a previously established law, Marbury v. Madison was a groundbreaking case. Brown v. Board of Education (1954) was the epitome of judicial activism. The Supreme Court ruling outlawed segregation in public schools, allowing nonwhite children to attend the same schools as white children. The singular court case was the precedent to the civil rights movement of the 1960’s and a framework for massive social change. Other cases of judicial activism include Baker v. Carr (1961), which established the “one man, one vote” principle, Gideon v. Wainwright (1963), which established state funding for the poor, and Atkins v. Virginia (2002), which abolished the death penalty for the mentally ill. It is evident that instances of judicial activism are far more frequent that judicial restraint.

Pure quantity aside, the quality and lasting impact of a Supreme Court ruling is what truly dictates its efficacy. Historically, cases involving judicial activism have had great progressive impacts on the nation, a benefit which shows why judicial activism is superior. The very definition of judicial activism, a ruling that creates something new or strikes down something unconstitutional, embodies the concept of progress in itself. The Constitution is constantly in need of reform as demonstrated by the amendments added to it over the years, so simply exercising judicial restraint would make the constitution obsolete. To directly compare the progressive impacts of a case of judicial activism versus judicial restraint, simply refer to Dred Scott v. Sanford (1857) and Brown v. Board of Education (1954). While the first case upheld slavery and indirectly led to the Civil War, the second predestined the civil rights movement, which led to the liberation of millions of African Americans across the country. Without a doubt, judicial activism prevails.

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