Judicial Activism V. Judicial Restraint

    The United States Government is a complex system that is not  understood fully by the majority of the American public.  Out of the three branches of the American government the Judicial Branch is the least publicly understood.  In the supreme court there are two major attitude when it comes to ruling on cases and deciding the veracity of decisions made in the past. The differences between judicial activism and judicial  restraint are all apart of the biggest riff in our justice system since the beginning of the nation. Conservatives, or those who generally favor Judicial Restraint, believe the original intent of the founding fathers is (written in stone and it is not our responsibility to change such a great document) suitable for all generations. These people believe that they have the power to interpret the founding fathers, so they have the power to manipulate the law, and power such as that should only rest in the hands of the other two branches. On the other hand, the liberals, or generally judicial activists, believe that the founding fathers recognized that standards of their time wouldn’t apply to the future, so therefore left the constitution open and able to be interpreted for the situations that would take place in the future.  Judicial activism allows for the advancement of a government that is existing in a world that is rapidly advancing in almost every aspect.
    Judicial Activism is a philosophy stating that judges should unravel the Constitution to reflect modern circumstances and values.  Judicial Activists believe that the justices should creatively interpret the constitution so that modern day culture and beliefs are taking into account, and the government of the United States is able to grow and prosper naturally.  One of the first cases in the Supreme Court of the United States to exhibit the ideology of Judicial Activism was that of Marbury V. Madison of 1803.
Marbury V. Madison was brought about by these events.  In the presidential election of 1800 Thomas Jefferson defeated John Adams, in doing so he became the third President of the United States.  The election was decided on February 17, 1801, but Jefferson did not take office until March 4, 1801, and during that interval, Adams was still in power.  Under the Judiciary act of 1801 there were many new courts in the country and the spots of them needed to be filled.  It also lowered the total number of judges in the supreme court from 6 to 5.  In his last days in office Adams appointed many “Midnight Judges” to these places, with one of them being William Marbury.  Unfortunately, the appointments did not take effect until after Jefferson had taken office shortly thereafter.  After taking office, Jefferson ordered his Secretary of State, James Madison to withhold these appointments.  Because of that, Marbury sued Madison for the place he thought he rightfully deserved.  In his case, he asked the course for a Writ of Mandamus, which would require James Madison to make the appointment.  The aforementioned Judiciary  act of 1801 replaced the judiciary act of 1789.  The Judiciary act of 1789 is what allowed Marbury to even ask for the Writ of mandamus to begin with.  The issue of the case was whether or not the Supreme Court has the authority, under Article III, Section 2, of the Constitution, to interpret the constitutionality of a law or statute passed by Congress.  the court ruled in an unanimous decision that Marbury did have a right to his commission but even more importantly that the Judiciary Act on 1789 was unconstitutional.  Also, this case gave the Supreme Court the ability to use the power of a judicial review to determine whether or not a law or action is constitutional, significantly increasing the power of the Judical Branch.  Judicial activism is most certainly in place here, the old ways of dealing with issues were thrown out and were replaced with a more modern, convenient, and reliable method.  With the power of judicial review, the Supreme Court has the power to make great changes to existing legislation, allowing Judicial Activism to flourish and evolve into what it is today.  (”Supreme Court Cases Summary”)
    The next case dealing with Judicial Activism is Mapp V. Ohio.  In this case, on May of 1957,  Cleveland Ohio Police Officers were informed that a suspect of a bombing case, was in the house of Miss Dollree Mapp.  Three police officers arrived at her home and asked to entrance and they were denied entrance without a search warrant.  A few hours later they stopped by for a second time and forcibly entered the house where they found not a bombing suspect, but pornographic images and videos.  Mapp was arrested and jailed for the possession and control of obscene materials.  The issue of the case was determining whether or not Miss Dollree Mapp’s fourth amendment right to be secure from search and seizure was violated during the search of her home.  Mapp was found guilty in a local court but went on to appeal her decision and in the Supreme Court by a 6-3 decision it was determined that her 4th amendment rights had been infringed upon.  The Warren court ( 1953-1969) showed a strong tendency towards judicial activism by greatly increasing the rights of the accused as stated in Amendments four through eight.  By ruling against the lower courts and against the decisions of the officers the court show an ability to take information in and not rule solely on the decisions on the lower courts showing a strong leaning towards judicial activism. (”Supreme Court Cases Summary”)
    Another case that exhibits a strong inclination toward judicial activism  is Roe V Wade.  In 1973 a women in Texas wanted to terminate her pregnancy, but in Texas there is a law that prevents abortion unless the life of the mother is in jeopardy.  She disputed the Texas law on the basis that the law violated her right of personal liberty as stated in the Fourteenth Amendment and her right to privacy protected by the Bill of Rights.  The issue of this case was whether or not state law which bans or regulates abortion infringes a woman’s right to confidentiality or personal choice in matters of family decisions or marriage.  The court ruled that the states could individually rule on their stances on abortion on a basis of a trimester system, stating that the only ethical, and ultimately legal, time during a women‘s pregnancy to perform an abortion is during the first trimester. The case also determined that women did have a right to privacy and reproductive independence.   Judicial activism is obvious in this case because of the great changes made on how the United States deals with the issue of abortion and also by the great increase in the respect of the private decisions that a women can make regarding her fetuses.
    The next case that shows a strong proclivity toward the ideology of judicial review is that of Brown V Board of Education.  In 1954, all-white school were popular and seemingly much better and more efficient than the all-black school.  Black students and their parents sought the aid of the court to allow their admittance into these institutions.  They used the fourteenth amendment to stake their claim by saying that segregation laws infringed upon their protection of equality under the law.  It was determined that the “separate but equal” decision made by Plessy V Ferguson in 1896 was unconstitutional and unfit to have a place in education.  Separate facilities are always “inherently unequal” (www.infoplease.com).  This case demonstrates judicial activism because it overturned the laws in place to segregate the schools of the United States.  This case is also a case under Earl Warren and is considered by many his best decision and it shows his dedication to the advancement of the government and its policy along with the social advancements taking place in the world. (”Supreme Court Cases Summary”)
    Judicial Restraint is a method of think that encourages judges to limit the use of their power and try to maintain the balance that our current system already possesses.  It also encourages to not be hasty when it comes to the use of their power of judicial and not to declare a law unconstitutional unless it is undoubtedly so.  This prevents the advancement and evolution of our society as a whole and in turn, upsets the balance that was originally intended to be preserved.
    The case of Planned Parenthood of Southeastern Pennsylvania V. Casey (1992) is a prime example of judicial restraint.  In Planned Parenthood of Southeastern Pennsylvania V. Casey the state legislation of Pennsylvania passed a series of bills that prevented and delayed many processes that a women must go about when she is seeking to have an abortion.  Some of the regulations added by these laws are, a 24 hour consent period prior to an abortion, minors seeking an abortion must have the consent of at least one parent or guardian, and that women who are married must notify their husband on their decision to terminate their pregnancy and kill the fetus.  While these processes did not make an abortion illegal, it did drastically cut back on the numbers of abortions performed in the state and made the process slow and cumbersome.  The issue of the case was determining whether or not the right to abort a fetus was a liberty protected from the “addition of substantial obstacle”  (http://supcourt.ntis.gov/).  The court determined that a women’s right to have a abortion was still a liberty, but only one of the laws passed was deemed a “substantial obstacle” (http://supcourt.ntis.gov/).  The law the forced a wife to notify her husband was called as such and was overturned and removed, but unfortunately all of the other abortion control laws remained.  this case is judicial restraint because the policy stayed the same.  The process of getting an abortion in Pennsylvania was just as awkward and lengthy as it was before the case even occurred.  With the application of judicial restraint on this case, an unnecessary process stayed in place to control and even prevent a process that had already been deemed as constitutional. (http://supcourt.ntis.gov/)
    Another case that exhibits a strong inclination towards judical restraint is Heart of Atlanta Motel, Inc. v. United States(1964).  In this case the owner of the hotel brought into question the Civil Rights act of 1964 and its constitutionality.  In the Civil rights act of 1964, it gives statements that require private businesses to desegregate their businesses and allow for all races to use their services equally.  The owner of the shop claimed that the government did not have the right to govern who he allows in his shop.  The issue is whether or not the United States Congress, under its influence to adjust interstate exchange, has the power to require private businesses within a state to comply with the Civil Rights Act of 1964.  The court determined that the Civil Rights act of 1964 was constitutional and that the government did have the power to allow the power of such laws to trickle down into the realm of private businesses.  This is exactly the same situation as before the case, which is why this is judicial restraint.  The court decided that they have the power to control a business that a person started on their own.  Sure, in the case of segregation, the right decision was made, but who’s to say that regulations won’t go on to control other aspects of private business ownership.  Aspects such as, color, item selection, store hours, or even the employees that you hire.  With complete control even the most holy and pure organism can stagnate into corruption bathed in its own creation. (http://supcourt.ntis.gov/).
    Another Case that exemplifies judicial restraint is Texas v. Johnson (1989).  In Texas v. Johnson a man used flag burning to protest the policies given by Ronald Reagan at the Republican National Convention.  The laws in place at the time illegalized Johnson’s actions, but he suspected that his first amendment rights were being infinged upon, so he appealed his case and it ended up in the Supreme Court.  In the Supreme Court his actions were still deemed constitutional, and that his first amendment rights were  being infringed upon.  By sticking to the constitution and not changing any policies, this case shows judicial restraint.  But by allowing the burning of a national icon, they open windows for all sorts of other types of dangerous free speech actions to take place and wreak havoc.
    My final example of a case using judicial restraint is Dred Scott v. Stanford (1857).  In this case a slave was taken by his master to the northern portion of the united states.  And because of the Missouri Compromise of 1820, slavery was forbidden where they were located.  After returning to his home with his master he sued for his freedom, citing he had set foot where slavery was not a legal practice.  But by sueing, he made the situation for current slaves worse because the court ruled that slaves for not people, but were property, and in the end, the slaves master had the final say in the actions of his or her slave.
    Judicial restraint v. Judicial activism is a battle that will never have a victor.  The conflicting viewpoints and ideologies of America will never allow for such a monopoly to exist.  And in the end, this balance is what keeps the country going.  though Judicial Activism stimulates growth and prosperity, some things need to stay the same, or at least it is not their time to change.  Judicial restraint has held back many events from happening in our history, such as in Dredd Scott V Stanford.  It prevented the social advancement of country.  Our county needs advancement in every aspect in balance in order to reach our maximum potential as a nation on this planet.  Though planetary unity is far off, the first step is unifying and perfecting out own systems so that we may direct more attention to out counterparts existing on earth with us.

Works Cited

Supreme Court Cases Summary. 2009. Touro Law Center. 4 Apr 2009 <http://www.tourolaw.edu/ patch/casesummary.asp>.

Supreme Court Cases. 2009 Fed World. April 5 2009 <http://supcourt.ntis.gov/>

Irons, Peter. A People’s History of the Supreme Court
  New York: Penguin Copyright 2004

Hall, Kermit. The Oxford Guide to United States Supreme Court Decisions. 2. New York: Oxford University Press, 1999.

“Roe v. Wade” Oyez Court Cases. 2008. Oyez Inc.. 4 Apr 2009 <http://www.oyez.org/cases/1970-1979/1971/1971_70_18/>

“Roe v. Wade.” Info Please. 2009. Family Education Network. 4 Apr 2009 <www.infoplease.com>