How does judicial activism influence decisions

It turns out that virtually all of them are cases in which an overly deferential Court failed to invalidate a governmental action. When the Court fails to act—instead deferring to the elected branches—it abdicates its role as guardian of enduring principles against the temporary passions and prejudices of popular majorities.

It is thus no surprise that with historical hindsight we sometimes come to regret those passions and prejudices and fault the Court for its passivity. Ideally, of course, the Court should be like Baby Bear: It should get everything just right, engaging in activism when, and only when, We the People act in ways that we will later consider shameful or regrettable.

But that perfection is impossible, and so we must choose between a Court that views its role narrowly and a Court that views its role broadly, between a more deferential Court and a more activist Court. Both kinds of Court will sometimes be controversial, and both will make mistakes. But history teaches us that the cases in which a deferential Court fails to invalidate governmental acts are worse. Only a Court inclined toward activism will vigilantly avoid such cases, and hence we need more judicial activism.

State , 16 Wall. Happersett , 21 Wall. Ferguson , U. Bell , U. Gobitis , U. Cases over which there is significant division, such as Roe v.

Wade , U. New York , U. Dred Scott v. Sandford , 60 U. Gore , U. Even if Dred Scott and Bush v. Gore are included, only two of 13 reviled cases are activist while 11 are deferential.

Vanderbilt Law Magazine Winter Supreme Court decided United States v. Carolene Products Co. The opinion was a stroke of judicial activism that, through its infamous footnote 4, created an artificial dichotomy of rights under the Constitution. Some rights, notably free speech, were elevated to a preferred tier and now rightly receive vigorous constitutional protection.

Rights demoted to the second tier—specifically economic liberty and property rights—wrongly receive far less constitutional protection. While property rights have received a somewhat greater degree of protection from the Supreme Court during the past 20 years, they remain under siege from government through eminent domain, zoning and environmental regulations.

When the legislative or executive branch exceeds its legitimate enumerated powers, the courts have the authority, indeed the duty, to declare that exercise of power unconstitutional.

Liberals, however, tend to reject the notion that the courts have any role in seriously protecting economic liberty or property rights. This is remarkable in light of the fact that many liberals strongly advocate court protection for various rights—such as welfare—whose constitutional pedigree is far more questionable than rights to private property and economic liberty.

During recent decades, liberal judges, often urged on by public interest groups, have issued many opinions expanding the realm of economic and property regulation, thereby strengthening the welfare state. Having achieved this judicially sanctioned welfare state, liberals are strong supporters of letting the political process operate unimpeded by court oversight. Conservatives, who can be supportive of property rights and economic liberty on policy grounds, are nevertheless reluctant to have courts rein in legislatures.

Reacting to the perceived excesses of the Warren Court, Roe v. Wade, and the ability of liberal public interest groups to advance their agendas through the courts, many conservatives have come to view the judiciary with suspicion, at times bordering on outright animosity. Increasingly, their touchstone is judicial restraint requiring deference to legislatures. This deference, coupled with an allegiance to precedent, means that conservatives are rarely willing to overrule precedent, leaving entrenched the very foundations of the welfare state they rail against.

Both liberals and conservatives take comfort in their belief that legislatures will respond to the will of the public and make informed policy decisions that can be changed as public sentiment dictates.

Though appealing in principle, this trust in the democratic process ignores the realities of governmental institutions. Judicially-restrained judges respect stare decisis, the principle of upholding established precedent handed down by past judges. When Chief Justice Rehnquist overturned some of the precedents of the Warren Court, Time magazine said he was not following the theory of judicial restraint.

However, Rehnquist was also acknowledged as a more conservative advocate of the philosophy. The Constitution does not grant the Supreme Court the power of judicial review but the power to overturn laws and executive actions. Discuss the constitutional powers and authority of the Supreme Court and its role in developing policies. A policy is described as a principle or rule to guide decisions and achieve rational outcomes. The policy cycle is a tool used for the analyzing of the development of a policy item.

A standardizes version includes agenda setting, policy formulation, adoption, implementation and evaluation. The Constitution does not explicitly grant the Supreme Court the power of judicial review but the power of the Court to overturn laws and executive actions it deems unlawful or unconstitutional is well-established. Many of the Founding Fathers accepted the notion of judicial review.

The Supreme Court first established its power to declare laws unconstitutional in Marbury v. Madison , consummating the system of checks and balances. This power allows judges to have the last word on allocation of authority among the three branches of the federal government, which grants them the ability to set bounds to their own authority, as well as to their immunity from outside checks and balances. Supreme Court : The Supreme Court holds the power to overturn laws and executive actions they deem unlawful or unconstitutional.

The Supreme Court cannot directly enforce its rulings, but it relies on respect for the Constitution and for the law for adherence to its judgments. Some state governments in the south also resisted the desegregation of public schools after the judgment Brown v. Board of Education. Nixon to surrender the Watergate tapes. Some argue that the Supreme Court is the most separated and least checked of all branches of government. Justices are not required to stand for election by virtue of their tenure during good behavior and their pay may not be diminished while they hold their position.

Though subject to the process of impeachment, only one Justice has ever been impeached and no Supreme Court Justice has been removed from office. Supreme Court decisions have been purposefully overridden by constitutional amendment in only four instances: the Eleventh Amendment overturned Chisholm v.

Georgia , the13 th and 14 th Amendments in effect overturned Dred Scott v. Standford , the 16 th Amendment reversed Pollock v. Mitchell When the Court rules on matters involving the interpretation of laws rather than of the Constitution, simple legislative action can reverse the decisions. The Supreme Court is not immune from political and institutional restraints: lower federal courts and state courts sometimes resist doctrinal innovations, as do law enforcement officials.

On the other hand, through its power of judicial review, the Supreme Court has defined the scope and nature of the powers and separation between the legislative and executive branches of the federal government.

Nixon The Rehnquist Court favored federalism and social liberalism, while the Roberts Court was considered more conservative. The Senate confirmed his appointment by a vote and he assumed office on September 26, In , Rehnquist became the second Chief Justice to preside over a presidential impeachment trial, during the proceedings against President Bill Clinton.

In , Rehnquist wrote a concurring opinion in Bush v. Gore , the case that effectively ended the presidential election controversy in Florida, that the Equal Protection Clause barred a standard-less manual recount of the votes as ordered by the Florida Supreme Court.

Under this view of federalism, the Supreme Court, for the first time since the s, struck down an Act of Congress as exceeding federal power under the Commerce Clause. He won over his fellow justices with his easygoing, humorous and unpretentious personality.