Judicial Activism vs. Judicial Restraint


This week’s blog post outlines the issue of judicial independence, as well as the never-ending ideological battle of judicial activism vs. judicial restraint. The political parties in our country know that the judiciary, while not completely independent, is the last restraint for the ideological issues they have promised their constituents will become law. In the most part, congressional sessions and presidential terms will be graded in history based on what great ideological breakthrough the administration has had during its watch. Appointing judges and justices is one of these administration-defining moments; furthermore, what judge they select may end up having the final decision on the constitutionality of one of their “signature” laws.

As we discuss the political influence on the American judiciary, I find very interesting Sanford Levinson’s article Identifying Independence. I especially like his description of the factors used to analyze judicial independence. He breaks down “judicial independence” into examining a host of variables. First are the pressures, both formal and informal, that can be brought to bear on judges during their terms of office with regard to shaping their specific decisions. Second, the freedom that judges have from what might be termed the involuntary leave-taking from their offices. The final variable regards focusing on methods of selecting judges, and the relationship between any given method and immersion in what might be termed “ordinary politics.” See Sanford Levinson, Identifying Independence, 86 B.U. L. Rev. 1297, 1299 (2006)

The thought that your decision may be appealed, and potentially overruled, is a big deterrent for judges at the trial level to practice judicial activism. Furthermore, the lack of precedential effect of trial court-level judicial opinions makes the risk more than the reward to exercise judicial activism at their level. However, the ideological beliefs of the images1judges, even at the trial court level, can determine cases. Judges can interpret the rules of evidence liberally towards protecting a defendant’s liberty interest; likewise, they may interpret them conservatively, in favor of preserving the state’s rights during prosecution. The judge may use political ideology in many phases of the criminal trial, from deciding motions in limine to determining directed-verdict motions and sentencing lengths.

In theory, people would expect judges to be impartial, and not involve their political beliefs in their decisions. The judges are supposed to interpret the law and apply it, with no room for expanding or narrowing legal constructs. When people are in court, they would see the perfect judge as an impartial umpire ruling over their controversies. The judge would not have room for personal or political opinion on any given matter, for his or her role would be to apply the law as written to any given case. The judges would take a statute or statutes, use analogical reasoning to determine whether the case fit into one category or another, and then decide the case on these grounds. The impartial judge would have all the answers to cases and controversies given to him through legislative action. In short, a branch of government elected by the people would have created the statutes, and therefore the law would be more representative of the population as a whole, as opposed to the thinking of one person. The judge would also defer to stare decisis and the prior rulings of more experienced, learned judges, whose decisions would be making a roadmap for the less experienced judges. This hierarchy of judgeship would promote efficiency, embrace narrow rulings, enforce stability and guide judges in deciding cases uniformly without need for personal thoughts.images

However, I simply cannot believe that this could ever be the case in our politically charged modern America. This is why I believe “judicial activism” and “judicial restraint” is simply two different ways of saying, “I’m applying my ideological beliefs and this is why it’s legally feasible.” Republicans and Democrats, now more than ever in our history, are spending egregious amounts of money in order to get a judge with “like-minded” views either elected or appointed. And these judges depending on where they sit will, for better or for worse, have politically charged motives. For appellate judges, from state courts to federal courts, they will be deciding cases regarding abortion, gun control, states rights v. federal supremacy, etc., all while having to justify the millions upon millions of dollars that various super-PACs and grassroots campaign followers, not to mention the parties themselves, spend on the judges getting elected. It is impossible to believe that these ideological beliefs are not furthered by the legal concepts of “judicial activism” that all judges engage in. Judges, wherever they are sitting in the judiciary, have political motives and political incentives. It’s the same old politics, just a different branch of government.


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