The Core Questions On Judicial Activism Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

Abstract

Judicial activism and judicial activism represent two opposite approaches to legal and constitutional interpretation. Judicial activism entails that the Court majority utilized personal or political ideologies that go beyond the intended boundary delineated by the legislation. The rise of judicial activism has sometimes been labeled as an "end of democracy and the judicial usurpation of politics. One of the drivers for the increased public concern has arisen from the tendency of the courts to utilize their power to decide cases as a mode of invalidating laws passed by legislatures, and even the people themselves via ballot initiatives, wherein judges in some circumstances enforce their own policy on a reluctant society. In many instances, the Supreme Court plus other federal judicial bodies not only have surpassed their constitutional limits, but have disputed the principle of federalism that ought to safeguard the balance of power between the national government and the governments of the states.

Hopwood v. Texas remains one of the most intensively litigated cases featuring the long battle over affirmative action within higher education. Hopwood delivered the first trial on the basis for affirmative action within higher education since early 1970s. Hopwood delivered a comprehensive appellate opinion of exceptional breadth, excluding of race within admissions. Hopwood v. Texas represents the first successful legal challenge to a university’s affirmative action policy utilized in student admissions. A petition for a writ of certiorari was denied, whereby the justices opinioned that the application of race or national origin as an issue within the admissions process is a subject of significant national importance, taking into account that the affirmative action was constitutionally flawed.

Judicial Activism

In some instances, the judges appear to surpass their power with regard to deciding cases that are before the court. Judges are expected to exercise judgment with regard to interpreting the law as per the constitution. According to judicial activism, judges should utilize their power to rectify injustices, especially in instances in which other branches within the government fail to act to do so. Hence, courts have a critical role to play in shaping social policy on issues such as civil rights, safeguard of individual rights, public morality, and political injustice.

The core questions on judicial activism centers on whether courts should be awarded the power to annul legislation in the name of the constitution. Judicial activism could lead to some form of despotism. Remarkably, the power of judicial review is nowhere mentioned within the constitution. The courts claim that the power grounded in inferences derived from the constitution’s identification of itself as the supreme law, as well as from the nature of the judicial office.

Discussion over judicial activism predictably comes back to issues regarding judicial supremacy: first, every section of the constitution’s letter and spirit is in principle deemed "enforceable" by the judiciary; second, every other public official, is bound by his oath to the constitution itself, to take the Supreme Court’s declarations on the Constitution as binding on himself. Based on these teachings on judicial power the Supreme Court possesses an effective authority to alter the meaning of the constitution among its ordinary powers. As such, judicial supremacy has attained some measures of legitimacy by virtue of popular acquiescence to its terms.

It is not the absence of constitutional authority that makes judicial activism a serious problem since courts are not designed to render wide public policy. Activist courts have undermined virtually every aspect of the public policy in the arena of: permitting racial inclinations and quotas; establishing a "right" to public welfare assistance; obstructing criminal prosecution; upsetting state referenda; and, discerning a right to abortion.

In countries with a written constitution, the extent of judicial power is almost unlimited, and. One of the phrases employed to demonstrate the extent of judicial supremacy details" power corrupts and unqualified power utterly corrupt." Advocates of judicial activism assert that judicial activism is essential to correct injustices and facilitate the needed social changes. They perceive that the courts, as institutions of the last option, for those within the society who require the political power to impact on the other branches of government.

Critics to judicial activism point out that activist judge tend to make laws, rather than interpret them, which is itself an abuse of their constitutional power. The opponent s note that the issue is not whether social challenges must be resolved but whether it is the courts ought to engage in such problem solving. Critics of judicial activism also cite the constitutional code of division of powers (the separation of power among the legislative, executive, and judicial branches) and federalism (the separation of power between the states and the federal government) to validate judicial restraint. The opponents claim that judicial activism yields to constitutional interferences of federal judicial power into the responsibilities and powers of the executive and legislative branches of government.

Conclusion

Judicial power can be employed and has often been utilized for both good and ill. Nevertheless, in a just democratic republic, the exercise of judicial power should never be used lawlessly-even to derive desirable ends. Judges should not take the roles of legislators. The authenticity of the decisions, especially decisions that centre on overturning legislative judgments hinges wholly on the precision established by the judicial assertion that the court was permitted to settle the matter. In instances in which this claim is bogus, a judicial decree is not converted by its well intentions or results. Decisions emanating from instances in which the courts assume the power of people is not simply incorrect, but can be regarded as unconstitutional and unjust.