Introduction
The judiciary’s role is controversial since some argue that courts have become too powerful, and others argue the courts have been restrained. When the courts are too powerful, they base their decisions on personal beliefs, and when they exercise restraint, it leads to a lack of accountability of the other government agencies. The conservatives and the liberals have used the concept of activism to describe court decisions with which they disagree. The following paper will explore the judiciary’s appropriate law and explain the concepts of court activism and court restraint. It will finally define the role of the idea of activism.
Role of the judiciary
Interpreting and applying the law to cases is a primary role of the judicial system. When resolving disputes, judges interpret and apply the law. The judiciary must function fairly and impartially. When the courts act this way, they ensure everyone’s freedom and rights are upheld. The judiciary also examines any laws to see if they adhere to the letter and spirit of the Constitution. The judiciary rejects unconstitutional laws, making them invalid moving forward. Additionally, it makes sure lower courts adhere to their prerogatives.
Court Activism
Judicial activism happens when a court issues an order, although it has no jurisdiction to do so, and it makes the order pass as if the court has the power to do so. Judicial activism also occurs when judges let their preferences for specific policies and other factors influence their judgments. It is, therefore, the improper use of competencies whereby the judges go beyond the scope of their authority (Benítez-R et al.).How judicial activism manifests varies from country to country and court. It depends on the jurisdiction and the definition of these courts’ powers. It can happen when the court interprets the law in a way that creates new rights or imposes new obligations not mandated by the Constitution.
The supporters of judicial activism state that it introduces the will of the people into the interpretation of the laws. The supporters also argue that the court is responsible for checking the other branches of the government. They also argue that the courts must interpret the law to reflect contemporary values even when it goes beyond the literal language of the Constitution. These judges argue that, in some cases, the normal interpretation of the law is inadequate in protecting individual rights.
The opponents argue that this activism undermines the democratic process by allowing judges to create new rights and obligations. The opponents also argue that judicial activism runs against the accepted norm of neutrality. The opponents also argue that it leads to inconsistency in the law since the judges can interpret in ways based on their personal beliefs and opinions. It can cause the judge’s actions to overlap with the functions of the other branches of the government by reading specific legal interpretations to support a particular outcome.
Judicial Restraint
Judiciary restraint is a principle that encourages judges to keep their rulings to the facts at hand and refrain from letting their own opinions about the greater good of society influence them. The judges should interpret the law following precedent and as written by the legislature (Levy & Mellor, 2022). The conservatives publicize judicial restraint since they view expanding civil rights and liberties as turning courts into unelected legislations.
The basic principle of judicial restraint is that judges should not be activists who seek to impose their personal opinions on the political process. They should be impartial and neutral interpreters of the law. The previous precedents set by previous court decisions should guide judges. The authority of the three branches of the government is also preserved by judicial restraint.
The opponents of judicial restraint argue that the judicial system must intervene in the political process to protect the rights of all individuals since judicial restraint justifies oppressive government policies. It also leads to a lack of accountability for government agencies. If the courts do not check unconstitutional actions, it can be difficult for citizens to hold their elective representatives accountable. The courts should act as a check to the other branches of the government, especially when they violate the rights of the people. The courts are also responsible for interpreting the laws in a way that reflects the realities of contemporary society.
Role of the Concept of Activism
According to Bolick (2019), judicial activism occurs whenever the courts invalidate a law that violates a person’s rights or oversteps the constitutional bounds of other governmental branches. Much of the law in the country is not made by democratically accountable officials but by unelected bureaucrats who are not. The judiciary has the power to strike down unconstitutional laws, whereby courts should keep the legislature and other arms of the government within the limits of their assigned authority.
In nations where the courts exercise significant judicial control, there are numerous complaints of activism. United States activism has drawn criticism from both liberals and conservatives. Liberals criticized the conservative Supreme Court for overturning progressive economic laws during the first half of the 20th century. In the second half of the 20th century, the Supreme Court was more liberal, and conservatives criticized it for overturning the law because of what they saw as the liberal judicial policies of its members.
Arguments surrounding judicial activism are often centered on whether judges should base their decisions on the law or politics. Although conservatives and liberals disagree, neither side can argue that judges should make decisions based on politics. It is challenging to prove that any decision in a controversial case is the result of politics rather than the law, given the ongoing disagreements between scholars and judges about how judges should interpret the law. Therefore judicial activism refers to decisions that individuals disagree with since it is difficult to prove that court decisions are based on the law and not politics.
Conclusion
The judiciary’s role is to interpret and apply the law to cases. Sometimes judges make decisions based on their personal opinions about public policy, a practice known as court activism. It can also happen when the court interprets the law in a way that creates new rights or imposes new obligations not mandated by the Constitution. The supporters of judicial activism argue that it introduces the will of the people, and the opponents argue that it causes the judge’s actions to overlap with the functions of the other branches of the government.
There are also instances when judges practice restraint whereby they limit the scope of their decisions to the fact at hand and avoid letting their personal opinions about the common good influence them. The supporters of judicial restraint argue that judges should be impartial and neutral interpreters of the law. The opponents argue that the judicial system has to intervene in the political process to protect the rights of all individuals. Finally, the term judicial activism is used to describe decisions that people disagree with because it is difficult to prove that any decision in a controversial case is the result of politics rather than law due to disagreements among scholars and judges about how judges should interpret the law.
References
Benítez-R, V. F., Pulido-Ortiz, F. E., & Rivas-Robledo, P. Defining Judicial Activism: Judicial Activism as the (Im) proper use of Judicial Powers and the Colombian Experience of Judicial Review of Constitutional Amendments1. http://dx.doi.org/10.13140/RG.2.2.36196.71049
Bolick, C. (2019). The Proper Role of Judicial Activism. Harv. JL & Pub. Pol’y, 42, 1.
Levy, R. A., & Mellor, W. (2022, September 11). Judicial Activism and Tomorrow’s Courts. Cato Institute. https://www.cato.org/commentary/judicial-activism-tomorrows-courts
