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US government and civics
Course: US government and civics > Unit 2
Lesson 10: Checks on the judicial branch- Executive and legislative disagreements with the Supreme Court
- Checks on the judicial branch
- State checks on the judicial branch
- Senate confirmation as a check on the judicial branch
- Judicial activism and judicial restraint
- Increased politicization of the Supreme Court
- Checks on the judicial branch: lesson overview
- Checks on the judicial branch: foundational
- Checks on the judicial branch: advanced
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Judicial activism and judicial restraint
Judicial activism and judicial restraint are two key terms in law. Judicial activism means judges use their personal views when making decisions, sometimes seen as overstepping. Judicial restraint is when judges limit their power, sticking strictly to the constitution. The Baker vs Carr case is a famous example of these concepts.
Want to join the conversation?
- Why would the decision in favor of Baker be considered activism? The court did not do the redistricting. That was left up to the state legislature to decide how the redistricting should be done...doing their own job. The court merely said the state's population was not represented equally. That, of course, has led to suits regarding gerrymandering, where the courts look for possible unfair districting that nullifies the votes of some particular segment of the population by race, party or other political grouping.(7 votes)
- I know this comment is from 3 yrs ago, but I wanted to give a reply in case someone has the same question.
This is just an observation, and I may be wrong, but I think it's considered activism because by siding with Baker, the court is basically ordering the legislative branch to redistrict. The court is making the decision for the legislative branch to, instead of letting the legislative branch decide whether or not to redistrict.(4 votes)
- Are there any studies that show which Supreme Court justices have been more likely to engage in judicial activism? Also, are presidents from a particular political party more likely to appoint/nominate justices who engage in judicial activism?(2 votes)
- I can not answer your first question. However, to answer your second question, president would definitely like to appoint justices who engage in judicial activism that aligns with that president's political agenda. Nonetheless, those judges will have a hard time getting confirmed in the Senate, unless the Senate and president share the same political agenda.(7 votes)
Video transcript
- What we're gonna do
in this video is talk about the terms judicial
activism and judicial restraint. In many videos, we have talked about how the judicial branch,
one of its main powers, is to be a check on the
executive and legislative branch, that it can exercise
judicial review over them. It can say that a legislative
action, that a law, that a statute is unconstitutional. It can say that an executive action, say a rule or regulation
or an executive order, is unconstitutional, but as it's doing that, as it's exercising its judicial review, how does it go about doing that? And this term judicial
activism was first introduced by Arthur Schlesinger, who we've talked about in other videos, and it's meant to imply a judiciary that is not strictly just ruling based on maybe what the Constitution says but also their own personal ideas. So personal views. It sometimes has an implication that the judges are
overreaching in some way. Some people might say, and
this would be a little bit of a negative, "legislating
from the bench." Legislating from the bench, and you'll often hear is that, "Hey, that judge or that
court is legislating "from the bench," from the people who don't like their ruling. They're saying, "Hey,
they're not strictly looking "at the law. "They're trying to make their own laws "through their rulings." Now some would say that it's necessary for the judicial to do this because they are
interpreting the Constitution in the world as it is, and the world that we
are in changes over time. So it is really a form
of positive activism, that they are defending liberties, that they are defending rights, especially in the social
context that we're in. I'll leave you to decide whether you think this
is a good idea or not. Now judicial restraint
is the opposite of it. This is a situation where the judges or the courts limit their power, so limit their own power, their own power, where they say, "Hey, look, our job is to just
be the umpire or the referee. "Our job is not to make new rules, "and so we are just
going to strictly think "about whether something is constitutional "or whether it is not," and one of the most seminal cases on judicial activism versus
judicial restraint happened in the early 1960s, and that is the case of Baker versus Carr, and so what happens is is
that Baker is a resident of Shelby County, Tennessee. He was actually of the former
mayor of a town outside of Memphis, which is in
this area right over here, and he says that, "Look, the state is not reapportioning "its legislative districts
the way it should be," that in general every 10
years there is a census, and based on that, we
have been understanding of where the population sits, and then the state should be
reapportioning districts based on population, but what Baker argued is is that the state of Tennessee actually did
not redistrict since 1901, after the census of 1900, and it was now the early 1960s, and he says because of that, and he invoked the 14th amendment, you weren't getting equal protection, that people in his county that had gotten increasingly urban and had gotten increasingly
dense over the course of those 60 years, that they were getting
the same representation despite having a larger
population than some of the rural areas where
they have a lower population and had the same number
of representatives, and so he takes this case
against the Secretary of State of Tennessee at the time, who was Carr, and it eventually gets
to the Supreme Court, and the essential question
in Baker versus Carr is whether the courts even have jurisdiction over legislative districting because the districting was a power of the state legislature in
Tennessee, and in this case, the United States Supreme
Court actually did vote in favor of Baker. So not only did they say that
Baker was right in asking for this redistricting, it had huge implications in saying that, yes, courts, like the
United States Supreme Court, do have jurisdiction over something that was officially a legislative duty, telling the legislative that, "Look, you've got to do this 'cause "by not doing this action, "by exercising your discretion there, "you might not be
allowing everyone to have "equal protection." Many have argued, including
the two dissenters to the opinion that this was
a form of judicial activism. It increased the power of the judiciary, and to appreciate the view of the United States Supreme Court that they do have jurisdiction over legislative districting, here is part of Associate Justice
Douglas's concurring opinion. "Where the performance of a
duty is left to the discretion "and good judgment of
an executive officer, "the judiciary will
not compel the exercise "of his discretion one way or the other... "for to do so would be to
take over the office...." So he's saying, look,
when it is someone's job where there's an executive
officer to do this duty, then the courts should not
have jurisdiction there, but then he goes on to write, "There is no doubt that the
federal courts have jurisdiction "of controversies
concerning voting rights. "The Civil Rights Act gives them authority "to redress the deprivation
under color of any state law "of any right, privilege
or immunity secured "by the Constitution of the United States "or by any Act of Congress providing "for equal rights of citizens...." Really saying that, look,
if the court can see that some right is being violated, some right is described in
any under the state law, under the United States Constitution, then the courts do have jurisdiction. "The right to vote in both federal "and state elections was protected "by the judiciary long
before that right received "the explicit protection
it is now accorded." So he's saying, look, even
before the Civil Rights Act, even before the 14th amendment,
that this was something that was part of the
charter of the judiciary, part of the federal court
system, and so it does lean in favor of judicial activism because you can imagine courts, and they have cited Baker versus Carr since the 1960s repeatedly
as reason, saying, hey look, we're trying to protect people's rights, and people have a right to do X, Y, or Z, even if it hasn't been
explicitly legislated. Now there were two dissenters, and this is what the dissenters wrote. "The courts authority--possessed
of neither of the purse "nor the sword..." So here, the purse, that's
the legislative branch that can think about budgets or the sword, that's the executive branch. The president's the commander in chief. "Ultimately rests on
sustained public confidence "in its moral sanction." Let me underline that. "On sustained public confidence
in its moral sanction. "Such feeling must be nourished "by the Court's complete detachment, "in fact and in appearance, "from political entanglement
and by abstention "from injecting itself into the clash "of political forces in
political settlements." So here, Associate Justice Frankfurter, in his dissenting opinion, is saying, look, we should stay out of this, that not only is it not our
part to rule here, to say that, hey look, the legislative needs to do this redistricting again. He's saying that it actually
undermines the credibility of the court, that the credibility "ultimately rests on
sustained public confidence "in its moral sanction," and that by ruling in favor of Baker the court was overstepping
of these bounds, that people would say, hey, you're starting to
legislate from the bench. You're trying to get
involved in the political, even though the court is supposed to stay above the fray of the political, or another way to think about this is that Associate Justice
Frankfurter subscribed to the idea of judicial restraint and felt
that the other six justices that were voting in favor
of Baker were practicing to some degree judicial activism. They were getting into the territory of the other branches of government.