Judicial Power

Activism v. Restraint

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

The Basis for Judicial ReviewThe Basis for Judicial Review

Marbury v. Madison Marbury v. Madison (1803)(1803)

William Marbury one of William Marbury one of John Adams’ ‘midnight John Adams’ ‘midnight appointments’appointments’

Marbury reports to the Marbury reports to the Secretary of StateSecretary of State

Secretary Madison Secretary Madison refuses to grant the refuses to grant the appointmentappointment

Marbury asks SCotUS Marbury asks SCotUS to issue a Writ of to issue a Writ of Mandamus (a court Mandamus (a court order)order)

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

Yes

Now that The Court has this power, Now that The Court has this power, how should they use it?how should they use it?

Judicial RestraintJudicial Restraint Advocates of restraint argue this power should Advocates of restraint argue this power should

be used sparinglybe used sparingly Judicial ActivismJudicial Activism

Advocates of activism argue this power should Advocates of activism argue this power should be used whenever it serves justicebe used whenever it serves justice

Original IntentOriginal Intent Advocates of original intent argue one must Advocates of original intent argue one must

determine what the authors of the law meant determine what the authors of the law meant and act in accordance with that meaningand act in accordance with that meaning

Judicial RestraintJudicial Restraint Self-imposed limitation on judicial powerSelf-imposed limitation on judicial power

Judges defer to policy judgments of elected governmentJudges defer to policy judgments of elected government Courts may decide constitutionality, but not the wisdom Courts may decide constitutionality, but not the wisdom

of a lawof a law Yet courts often equate constitutionality with wisdomYet courts often equate constitutionality with wisdom Courts should not read their own philosophies into the Courts should not read their own philosophies into the

ConstitutionConstitution Avoid direct confrontation with Congress, Presidency or Avoid direct confrontation with Congress, Presidency or

the statesthe states Federal judges are not elected, ergo not in a position to impose Federal judges are not elected, ergo not in a position to impose

their willtheir will Except where there is a clear violation of constitutional Except where there is a clear violation of constitutional

principle, judges defer to elected bodiesprinciple, judges defer to elected bodies The “manifest tenor” argument from Federalist #78The “manifest tenor” argument from Federalist #78

"The courts should interpret the laws, not make them." "The courts should interpret the laws, not make them." --Sandra Day O'Connor--Sandra Day O'Connor Case by case decisionsCase by case decisions

Judicial ActivismJudicial Activism Making of new law through judicial interpretation Making of new law through judicial interpretation

of the Constitutionof the Constitution Judges shape constitutional interpretation Judges shape constitutional interpretation

through decisionsthrough decisions Seek to adjust constitutional meaning to the Seek to adjust constitutional meaning to the

"complexity of modern society" (Brennan)"complexity of modern society" (Brennan) Anticipate the establishment of precedentAnticipate 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 wrongsImpose far-reaching remedies for legal wrongs

"The Constitution is a sublime oration on the "The Constitution is a sublime oration on the dignity of man…I hope to embody a community dignity of man…I hope to embody a community striving for human dignity for all, although striving for human dignity for all, although perhaps not yet arrived." --William J. Brennan, Jr.perhaps not yet arrived." --William J. Brennan, Jr.

Rules of RestraintRules of Restraint Agreed by both activist and ‘restraintist’ judgesAgreed by both activist and ‘restraintist’ judges

Courts may only decide actual cases; it cannot adviseCourts may only decide actual cases; it cannot advise Courts may not decide hypothetical casesCourts 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 Courts may not decide constitutional questions if some other

ground existsground exists Courts may not decide the validity of a law if complainants fail Courts may not decide the validity of a law if complainants fail

to demonstrate injury by the lawto demonstrate injury by the law When in doubt, the court must seek a constitutional When in doubt, the court must seek a constitutional

interpretation of law before declaring it unconstitutional (Show interpretation of law before declaring it unconstitutional (Show how the law in question is "pursuant")how the law in question is "pursuant")

The Supreme Court may only hear cases where complainants The Supreme Court may only hear cases where complainants have exhausted available remedies in lower courts or state have exhausted available remedies in lower courts or state courtscourts

Courts will only invalidate a law when a constitutional issue is Courts will only invalidate a law when a constitutional issue is crucial to the casecrucial to the case

Courts should refuse to hear political questionsCourts should refuse to hear political questions Decisions about constitutionality are confined to particular Decisions about constitutionality are confined to particular

sections of the law deemed questionable.sections of the law deemed questionable.