Comparison of judicial restraint and judicial activism

The judicial branch, through the Supreme Court and the lower courts, is the branch of the government responsible for interpreting the law. These courts act as impartial judges in legal cases and makes decisions in best interest of justice. However, while that is the primary role description of the judicial branch, there are two widely believed advocacies or theories, so to speak, when the branch performs its task: judicial restraint and judicial activism.

Judicial restraint is the belief or theory that judges should limit the exercise of their power and uphold all laws of Congress unless they are obviously unconstitutional. Moreover, the practice of judicial restraint means that a judge, when deciding questions or cases of constitutional law, should defer that case to the legislative branch. It means that judges should only interpret the law and not be involved in making new policies or new laws (Wellington).

On the other hand, judicial activism is the belief or theory that judges should use their personal views and opinions when interpreting the law. The practice of judicial activism means that judges to make laws in response to legal issues before the Court and correct injustices most especially when the other branches of the government fail to do so (Wellington). It is the reverse of judicial restraint.

Both theories can affect judicial making in many ways. A judicially restrained judge when deciding a case may not air his personal views so any good or brilliant idea he or she may have cannot be heard. Furthermore, in cases when the two other branches of government are not doing anything to resolve a problem, the judicially-restrained judge cannot do anything since he is only limited to interpreting the law.

A judicial activist, on the other hand, makes decisions in a way that it can actually shape policies on issues such as civil rights, public morality, political criticism, and protection of individual rights among others, since he or she can air personal ideas and directly or indirectly be involved in making new policies.

Works Cited

Wellington, Harry H. Interpreting the Constitution: The Supreme Court and the Process of Adjudication. New Haven: Yale University Press, 1991.