Judicial Activism

Judicial Activism

Judicial Activism

Name

Class

Date

Professor

Judicial Activism

Judicial Activism refers to a viewpoint where judges write subjective policy preferences into the law based on their creative reinterpretation of the US Constitution. This is the opposite goal of the establishment of the judiciary which is to impartially rule based on the original language found in the constitution. The role of a judge is to interpret the law but that interpretation is not a personal decision based on personal viewpoints but instead applies the law after an independent and impartial review of the facts. In judicial activism the judge has far more latitude in applying the law and replaces the impartial interpretation expected from judges.

Judicial activism solves the problem of a Constitution written well over 200 years ago that has failed to address all controversies that have arisen. As a result the members of the Supreme Court have created their own legislative response to fill this gap in the Constitution. For example the Constitution forbids the government from intruding into the personal lives of the citizen which includes illegal search and seizures but the constitution did not provide a remedy if the intrusion occurs. As a result police officers were ignoring the citizens Fourth Amendment rights and illegal obtaining evidence against a defendant.

In the case of Weeks vs. United States the Supreme Court created a mandatory remedy for violations by the government of a citizen’s right. Without this remedy, known as the Exclusionary Rule, police can be away with seizing evidence illegally with no consequence. The Exclusionary Rule is enacted when prosecutors attempt to introduce evidence obtained illegally by police. Weeks is a broad interpretation of the constitution but a much needed remedy. In Atkins vs. Virginia another important ruling by the high court when it was ruled mentally retarded murders could not be executed. While this should be obvious to a humane society it required a ruling from a judicial activist to stop the mentally retarded from being killed by the state. Judicial activism is opposed by critics who find the judiciary becomes all powerful when they are able to put their own twist on the constitution. Constructivists find the constitution should be interpreted based on what is in the Constitution not on subjective views of what should be in the constitution. Based on this viewpoint a judge individual belief must never factor into the decision made by the Supreme Court. They are not legislatures and should never abuse precedents set in other courts. Constructivists also accuse the judiciary of contorting text, nullifying rights, and judicial imperialism.

While some rulings have in fact had a positive effect in society there are also the rulings that have generated a loss of rights for the citizen or that have resulted in the abuse of previous precedents. In Gonzales vs. Raich the Supreme Court ruled the Commerce Clause empowered Congress to prohibit the purely local activities that may affect interstate commerce (Heritage Foundation, 2013). In this case a couple growing a garden of personal marijuana which is legal in the state of California where they live was arrested by federal police. This ruling blatantly went against previously rulings finding governmental intrusions into state legislation is an reasonable use of the commerce power.

In current society the Supreme Court is ruling on many different cases that could impact members of society. In Town of Greece, New York, v. Galloway the Supreme Court will rule on a church and State case that could impact the right of the citizen to freedom in their religion (Mear, 2013). The case involves a neighborhood meeting beginning with a Christian prayer offending the plaintiffs despite the fact other religions were also represented and provided an opportunity to offer prayer. The court will decide if government bodies, even at the local level, to acknowledge America's religious heritage in civil meetings. The high court should support the citizen’s right to begin a meeting with a prayer as it is a part of American tradition as long as all religious are equally represented. If the Supreme Court does rule in favor of the petitioners then freedom of religion would be threatened.

In many cases the ruling of the Supreme Court can be predicted because the people become familiar with their politics. In other words some justices are clearly liberal than other judges and it will be easier to guess what way they would vote but the purpose of having so many Justice is there are opposing opinions making it harder to determine how the court will decide. If one can predict the decisions of the justices on the Supreme Court the idea that no case is pre-judged would no longer apply. While each President appoints justices with their viewpoints there are still justices with opposing viewpoints in the high court to provide an equal mix of differing opinions.

Judicial activism is a controversial topic especially since the Supreme Court has the final say. The legislation may create laws approved by the executive branch but the Supreme Court has the ultimate say over whether this law will remain in the books. This creates concern when the high court engages in judicial activism and makes rulings that may appear to disregard precedent, diminish due process rights, contort constitutional text, or create legislation. The sole role of the Supreme Court is to fairly and without bias interpret the law and decide court cases.

References

Heritage Foundation. (2013). Case of Judicial Activism: Gonzales vs. Raich. Retrieved October

8, 2013 from http://www.heritage.org/initiatives/rule-of-law/judicial-activism

Mears, B. (2013). Church and state, executive power on Supreme Court docket. Retrieved

October 8, 2013 from http://www.cnn.com/2013/10/06/politics/court-term-cases/?