Judicial Activism is the act of a Judge to decide upon a case on his own without referring to the constitution or against the public law. Judges are to abide by the provisions of constitution and the common law, which protect the public interest. But, in a very few cases, they are pressurized to protect the personal interest of a group of people by virtue of political ideologies and/or for personal gain…
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The United States of America has a checking system of judicial activism to ensure that it is minimal and public interests are mostly protected. According to Merriam-Webster's Dictionary of Law, judicial activism is "the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent" (Jha).
The supporters of judicial interpretations have different philosophies and the most debated among them are strict constructionists and those who believe in living constitution. A strict constructionist is one who believes that the words and phrases used in the law and constitution are static and hence there are limited instances of interpretations. U.S. Supreme Court nominee John Roberts has been dubbed a "strict constructionist" -- someone who believes the U.S. Constitution should be interpreted exactly as its original authors intended" (Chadwick Alex). The main outcome of this philosophy is that judgment is based on what is written in the law and not on what it should be. Some of the popular supporters of this argument include Supreme Court of the United States Justice Hugo Black and former U.S. Chief Justice William Rehnquist, and Chief Justice of Australia, Owen Dixon. In contrast to the strict constructionism, living constitutionalists are of the view that the law words and phrases are not static and should be treated as living and dynamic and they must be interpreted in such a manner that they are useful for the changing societal needs. As opined by David Dieteman on living constitution, it is "one of the most nefarious influences in the minds of Americans is the notion that the federal constitution of 1787 (the "U.S. Constitution") is a "living" document" (Dieteman David). Therefore, the words and phrases in the law and constitution framed by Congress do not mean the same thing at different time points.
Thinking critically about these arguments what do you believe How should judicial activism be defined And whose interpretation of the constitution is correct, if any
The law and constitutional provisions framed at one time in the past need not be operational in a social environment, which is subject to perennial changes. The law should be interpreted as they are meeting the constitutional rights of the populace in the country. However, they should not be used for the benefit of a group of people to protect their vested interest and the judges should affirm that the country's judiciary is not influenced by the political ideologies and vested interests. In a study undertaken by Paul Gewirtz and Chad Golder, it is found that justices vary on their views to deviate from what was intended by the legislatures. The study observes that "striking down Congressional legislation is sometimes justified and some activism is necessary and proper" (Gewirtz Paul, 2005). Thus, what is appropriate to a judge may not be so to another. The validity is checked by taking into account the need of the given situation and the views of the judge. Judicial activism,
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(Judicial Activism Essay Example | Topics and Well Written Essays - 750 Words)
“Judicial Activism Essay Example | Topics and Well Written Essays - 750 Words”, n.d. https://studentshare.org/miscellaneous/1527559-judicial-activism-essay.
This essay explores the perceived judicial activism of the (ECJ) in an attempt to create a constitutional foundation for the European Union (EU). Judicial activism in the case of ECJ refers to the political implications of the policies made by the court in its interpretative role (Rasmussen 45) The detractors of the ECJ feel that it promotes European federalism to the detriment of the interests of Member States.
One of the main functions of the Supreme Court is to pass judgment on the constitutionality of laws passed by Congress. When the Supreme Court passed judgment over the health care laws, it was just exercising its power of judicial review. This power is based on the need to secure the rights of the minority in relation to the majority electorate and the need to ensure justice and fairness for the people.
This situation always alarmed me and so I decided to join and explore such an organization which would be working for solving this issue of water crisis and making it possible for everyone to get access to purified water. This organization helps people in developing and building their own reservoirs of purified water so that they can improve their economic conditions (Water for People, 2012).
JUDICIAL ACTIVISM BY EUROPEAN COURT OF JUSTICE . Introduction The European Community Courts have played a decisive role in the integration process of the European Union. The European Court of Justice (ECJ) has especially assumed key role by constantly pursuing legal assimilation in the EU by offering flesh and substance to an outline Treaty, thereby plugging in loopholes in the European laws, and improving the effective implementation of Community law in the provinces of the member states1.
For instance, in Bush v. Gore, 531 US 98 (2000), which is the ultimate case of judicial activism, conservatives did not decry this case as being a case of judicial activism. But, if one reads the opinion, it is clear that the judges are straining to find reasons for the decision, and the reason that they actually found, equal protection, does not fit the case at all.
Judicial restraint is when the Court takes the stand that law making is to be left to the legislators and it opposes the nullification of a law only when the Constitution is unquestionably violated. It has been said that 'throughout its history, the Court has claimed to exercise judicial review with restraint, but it has always actively pursued its chosen policies of the moment' (2005).
Once the Osmosis of the above scenario clears in the reader's mind it is possible to discern a pattern where as the Queen of Hearts (later rhetorically referred to as "nothing-but a pack of Cards" by Alice) is equivalent to the Modern Executive with its unfettered discretion to use and abuse its powers, lock up and detain people at its own will, apply legislation in an oppressive manner and the list goes on.
Scalia (1972) asserts that the constitution is supposed to guide the judge to solve any dilemma with a judicial bearing. To a larger extent, the judicial function incorporates interpretation of the provisions of law. However, there are numerous
The Supreme Court acted in an activist manner in the period between 1953 and 1969, and this is in an era when Chief Justice Earl Warren headed the Court. The Warren Court instigated the civil rights onward by suggesting that