Judicial Activism & Judicial Restraint - Institute for Justice

The relentless march of this brand of judicial activism provoked President Franklin D. Roosevelt to propound a plan for packing the Supreme Court. It was miscalled a “Recommendation to reorganize the Judicial Branch of the Federal Government” and was sent to the U.S. Congress on 5 February 1937. Roosevelt’s Attorney General Robert H. Jackson has described its background and aftermath ( ; Vintage Books; 1941). On 29 March 1937, the Court pronounced judgment in a tenor which marked a judicious retreat; aptly called a switch in time that saved nine (judges).

How Activist Is the Supreme Court

Interpreting the Court: Judicial Activism v

Judicial Activism Essay Example for Free - …

Judicial activism as practiced today is far removed from judicial creativity. Judges have been flouting the of the Constitution. Witness the judicial appointment cases in Pakistan and India. In India the Supreme Court went so far as to order a State Legislative Assembly as how to conduct its proceedings.

Friday’s Supreme Court decision is unadulterated judicial activism

It seems to me that “judicial activism” might be salvaged, and used as a way of identifying and criticizing decisions—such as, in my view, Casey—that fail to demonstrate this virtue.

Last week, President Barack Obama warned the Supreme Court against the perils of judicial activism
It fell to the court’s liberals — the so-called “judicial activists,” remember

Judicial activism in the Supreme Court of …

In India judicial activism picked up sped after the Supreme Court’s abject deference to Indira Gandhi’s Government during the emergency in the habeas corpus case. ( AIR 1976 S.C. 1207).

When Is Judicial Activism Appropriate? | HuffPost

Rosenberg is a Solicitor and law correspondent. Robert Stevens is a practicing barrister as well as academic. His book : (Hart Publishing, Oxford 2005) should be read by every judge in South Asia. Discussing the changes in the outlook of judges he wrote : “The political landscape and constitutional development have facilitated such changes. There has been what may well be seen as a revolution in the self-perception of the judiciary, although – the poverty of such literature in South Asia needs no elaboration – AGN). While certainly the judges began modestly aggrandizing their positions and styles in the 1960s and 1970s, the change became more obvious when consensus politics began to evaporate after 1979. The judges took on greater prominence after the collapse of serious opposition in the early 1980s. The more presidential style of Mrs. Thatcher and the declining importance of Parliament and other institutions were factors in making judges, as protectors of the Constitution, more important. While the House of Commons regained some initiatives under John Major’s ill-fated administration, the massive Labour landslides in 1997 and 2001 meant that Tony Blair was able to emulate Mrs. Thatcher’s presidential style. The judges could be needed again as a counter-weight to the elected dictatorship, for as Lord Bingham, the senior Law Lord, has put it : ‘the courts tend to be most assertive, active and creative when political organs of the state are least effective.” (p. 147).

Activism - Institute for Justice

How do we decide whether the level of deference is appropriate? I think there is a fairly small set of factors that suggest when courts should defer or should not. In the book, I identify what I think are the four most important. goes to the respective abilities of courts versus legislatures or executive officers to decide a particular question. Because I read many important constitutional provisions to have a cost-benefit balancing component (e.g., the Equal Protection Clause in part tells states not to discriminate against some group unless the discrimination produces net benefits to society, though also in part not to do so out of hostility), which institution is better at assessing costs and benefits in a particular context will frequently be relevant. And, to the extent that the assessment relies on weighing competing policies, the decision should generally be left to the representative branches for reasons of democratic accountability. This is a Legal Process sort of consideration. attempts to identify cases in which the legislative assessment will be suspect for structural reasons—as when benefits of a law go to in-staters and costs fall on out-of-staters. This is a John Hart Ely/process theory consideration. considers whether particular actors have proven themselves trustworthy or untrustworthy in particular circumstances. This is where a history of discrimination against a particular group would come into the equal protection analysis, for instance. attempts to decide whether it is worse in a certain set of cases for the courts to err by upholding an unconstitutional act or striking down a constitutional one. This consideration will lead courts to adopt stances that produce different error distributions. If, for instance, the only constitutional question is whether a law is in the public interest, the costs of error factor will ordinarily suggest deference. The harm of a mistake in a close case is small, and a legislature that makes a mistake can realize that and correct it fairly easily, whereas a mistaken judicial decision is harder to fix. But if the error is one that would impose very high costs on a small group of individuals and is unlikely to be remedied through the democratic process, the costs of error factor might suggest less deference (the “beyond a reasonable doubt” standard, evidently reflecting a belief that it is worse to convict the innocent than to acquit the guilty, is an example).