Judicial activism vs. restraint
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?- Created by: Dulcimer
- Created on: 30-09-14 19:44
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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.’
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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.
- Judicial activism
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