JUDICAL ACTIVISM V. JUDICIAL RESTRAINT

1. JUDICAL ACTIVISM V. JUDICIAL RESTRAINT I. Judicial activism. A. Philosophy that the courts should take an active role in solving society’s problems. B. Courts should uphold the "guardian ethic:" they act as a guardian of the people. C. Examples of judicial activism: 1. Striking down Topeka School Board’s policy of seg. in Brown v. Board (1954) 2. Striking down a Texas law that banned flag burning in Texas v. Johnson, 1989, and then striking down a congressional law that banned flag burning (US v. Eichmann) 3. Striking down the Gun Free School Zones Act in US v. Lopez, 1995. 4. Striking down line item veto in Clinton v. NY 1998 5. Striking down Florida recount in Bush v. Gore 2000 6. Striking down state death penalties for mentally retarded in Atkins v. Virg., 2002 Striking down a Texas sodomy law in Lawrence v. Texas Striking down a DC city ordinance banning handguns in DC v. Heller, 2008

2. JUDICAL ACTIVISM V. JUDICIAL RESTRAINT Associate Justice Antonin Scalia is a Strong Proponent of Judicial Restraint II. Judicial restraint. A. Philosophy that the courts should allow the states and the other two branches of the federal government to solve social, economic, and political problems. B. Federal courts should act only in those situations where there are clear constitutional questions. They should otherwise defer to elected lawmakers. C. Courts should merely interpret the law rather than make law. D.Suggests that courts should follow original intent of Founders: decide cases on basis of what the Founders wanted.

3. JUDICAL ACTIVISM V. JUDICIAL RESTRAINT FDR “Packing Event” Characterized in Satire III. Historical developments. A. In 20th century, prior to 1937, liberals complained about the conservative Court being too activist when it struck down various reform-minded laws (e.g., minimum wage, banning child labor, NRA, AAA). B. FDR responded with his "court-packing" attempt in 1937 ---> failed, but the Court, in its famous "switch in time that saved nine," began to accept New Deal legislation.

4. JUDICAL ACTIVISM V. JUDICIAL RESTRAINT C. Now, it was the conservatives who began to complain about the liberal Court being too activist, especially with the advent of the Warren Court (1954-1969). Conservatives began to complain about the Court's judicial activism in: 1. Rights of the accused, e.g., requiring the police to issue "Miranda warnings." 2. Civil rights, e.g., desegregating public schools in Brown v. Board. 3. Civil liberties, e.g., of prohibiting prayer in school. 4. Political issues, e.g., Baker v. Carr, 1962. D. The Burger Court (1969-1986) was less activist than the Warren Court, but still upset conservatives with decisions such as Roe v. Wade and UC Regents v. Bakke

5. JUDICAL ACTIVISM V. JUDICIAL RESTRAINT Chief Justice Rehnquist E. We have now come full circle because the Rehnquist Court (1986-2005) was accused by liberals of being too activist -- when it overturns liberal precedents, liberals accuse the Court of being excessively activist, e.g.: Overturning Gun Free School Zones Act Overturning Florida Supreme Court decisions in election of 2000 Overturning California’s Proposition 215 that legalized medical use of marijuana F. Similar views are held about the Roberts Court (2005 – present), e.g. DC v. Heller

6. JUDICAL ACTIVISM V. JUDICIAL RESTRAINT How Much Judicial Restraint for CJ John Roberts? IV. Restraints on judicial power. A. Courts can make decisions, but cannot enforce them B. Courts cannot reach out and take cases, but must wait for the cases to come to them. C. Courts can rule only on real, live controversies. They cannot “create” cases. D. Presidential appointment of judges

7. JUDICAL ACTIVISM V. JUDICIAL RESTRAINT Arlen Specter, Chairman of the Senate Judiciary Committee E. Congress. 1. Senate confirmation of judges. 2. Impeachment and removal. 3. Increasing the number of courts and judges, and thus the type of judges to Congress' and the President's liking. For example, in 1979, Congress (Democratic) created 152 new District and Appeals Court positions. Coupled with resignations and retirements, President Carter (Democratic) ended up appointing 40% of all federal judges during his one term of office. 4. Passing constitutional amendments (e.g., 14th Amendment overturned the Dred Scott decision, 16th Amendment allowed for an income tax that the Supreme Court had struck down in the late 19th century).

8. JUDICAL ACTIVISM V. JUDICIAL RESTRAINT Flag Defamation versus Free Speech 5. Repassing a law that was unconstitutional in hopes that the Supreme Court will change its mind. 6. Determining the jurisdiction of the courts -- what kinds of cases the courts can and cannot have. Article III, Section 2 of the Constitution may give Congress the power to prevent the Supreme Court from hearing certain types of cases (“In all other cases … the Supreme Court shall have appellate jurisdiction …with such exceptions … as Congress shall make.”) E. Stare decisis. F. Existing laws.

9. JUDICAL ACTIVISM V. JUDICIAL RESTRAINT G. The Constitution. H. Public opinion: The Supreme Court probably does not "follow the election returns“ in the short run because the Justices were appointed by previous Presidents for life terms. In the long run, however, the Court will probably reflect public opinion because the Justices are appointed by Presidents who were elected by the people

11. Final Thoughts… • Liberalism and conservatism are not connected to activism and restraint. They are completely different concepts! • Although the Constitution should always be the main focus, there are many factors that go into the opinion (decision) of each Supreme Court justice. And each justice weighs those factors differently. • Whenever one side (liberal or conservative) is upset with the power and decisions of the other, they will claim judicial activism.