Judicial activism vs. restraint

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  • Explain the differences between Judicial Activism and Judicial Restraint (10)
    • Judicial activism
      • Judicial activism describes judicial rulings suspected of being based on personal or political considerations rather than on existing law.
      • Professor David Strauss has argued that judicial activism can be narrowly defined as one or more of three possible actions:
        • overturning laws as unconstitutional
        • overturning judicial precedent
        • ruling against a preferred interpretation of the constitution
      • Activism is usually associated with liberal rulings which extend civil and social liberties, but it can be associated with conservative rulings too
        • For example, Bill Clinton in My Life (2004) writes about Bush v Gore (2000): ‘It was an act of judicial activism that might even have made Bob Bork blush.’
    • Judicial Restraint
      • Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power.
      • It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional
      • Judicial restraint is sometimes regarded as the opposite of judicial activism
      • In deciding questions of constitutional law, judicially-restrained jurists go to great lengths to defer to the legislature.
      • Judicially-restrained judges respect the principle of stare decisis.


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