The power of judicial review  gives the Supreme Court a role on policy making which rivals the elected branches of government. Many of its decision have an impact on education, health, gun control, criminal justice and the environment. This means controversy arises if the judiciary — which is unelected and therefore largely unaccountable — overturns the actions of directly elected officials in either the legislature or the executive. This brings us to the debate concerning judicial activism  and Judicial Restraint

Case study The Roberts Court 

The role or judicial activism and judicial restraint

Advocates of judicial restraint  argue that the court should only intervene in the most obvious cases of constitutional  whetr the constitution has been violated and while all justices agree, the problem  is there is no agreement about what a 'obvious violation 'is.

Judicial activism is an approach to the interpretation of the Constitution. It has two key components:

• ·    justices use their own views and values in order to achieve their own social or political goals. 

• ·    activism involves the court overturning other political institutions or the precedent of previous courts.

If a majority on the court are judicially active, it will have a big  impact on public policy. Judicial activism is associated with the Warren Court 1953-69, which gave had a big impact on  civil rights. An activist Court is said to be one which sees itself as leading the way in the reform of American society. Thus the Court under Chief Justice Earl Warren was said to be activist in the 1950s and 1960s in trying to move society along in the areas of black civil rights and the rights of arrested persons. This can be seen in cases such as Brown v Board of Education 1953 and Miranda v Arizona 1966. 

The Roberts Court has consistently ruled against campaign finance regulations — for example, in the Citizens United and McCutcheon cases — suggesting it is using its interpretation of the 1st amendment to promote conservative judicial activism.

Judicial restraint is the opposite of judicial activism. This is based on a view that, as an unelected body, the Supreme Court should defer to institutions with greater democratic legitimacy. A court exercising judicial restraint would also tend wherever possible to defer to the past decison of the court  so the Court is exhibiting ‘judicial restraint’  when it follow the principle of 'stare decisis,'— best translated from the Latin as ‘to stand by that which is decided’. Under this principle, once a matter has been decided in a case, it forms a precedent that should not be overturned except under pressing and changed circumstances.

So following the principle of judicial restraint,  having decided  a woman’s right to abortion in Roe v Wade, the Court has been willing to see limits put on that right but not to overturn the 1973 decision completely.  The principle of 'stare decisis' act as a limit on the court.

Judicial restraint also sees the Court as somewhat deferential to the legislative and executive branches of government, as they — unlike the judiciary — are directly accountable to the voters.

Chief Justice Roberts is critical of the public policy role of the Supreme Court.  For example in the Obergefell case:

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Conservatives tend to be critical of judicial activism because of the way in which it has been used by the court to 'find' new rights, such as abortion and gay rights, in the Constitution. Supporters of judicial activism will often base their argument on the need to protect civil liberties, based on the idea of the 'living constitution' that the Constitution has to evolve with the changing values of modern society.

Judicial restraint can be criticised because it could be seen as a failure of the judiciary to fulfill their duty by deferring to elected politicians and failing to enforce the Constitution. This view see the supreme court's role as vital in protecting against the tyranny of the majority and standing up for minority rights.  The Bill of Right becomes a dusty historical museum piece unless it is kept alive by the courts.  Paradoxically conservatives send to like activism when it is turned against the power of government which suggests that the rights which are seen as most essential depend on the point of view.

Conservatives tend to place the greatest value on the original meaning of the text itself. 'Strict constructionism' and 'originalism' are among the two best known: the former emphasises the literal meaning of the text; the latter, whose most high-profile exponent is Antonin Scalia, seeks to establish what a 'reasonable' reading contemporary to the adoption would have been. i.e What would a reasonable person think it meant at the time it was written?  Trump's nominee for the Supreme Court, Neil Gorsuch, is an originalist.

There are a number of arguments that underpin the conservative view.

• ·    One of Scalia's maxims is that the constitution is 'dead'; every other law is 'dead' in the sense that its meaning does not change over time, and the constitution is itself nothing more than a particular form of law. If anything, as a statement of fundamental principles, there is more reason to keep the constitution unchanged than any other law.

• ·      A reading contemporary to the framing of the constitution is the most objective standard available; a 'living constitution' approach favoured by liberals means that the constitution simply becomes a reflection of the values of the current justices. It means that the court's judgements are more predictable and stable.

• ·      The framers incorporated a process for amending the constitution and this should be used should the need arise; rights which judges 'find' in the text in controversial areas are likely to be divisive and seen by opponents to lack legitimacy, as has been the case with the constitutional right to abortion created by Roe v Wade.

  • Also, a strict or limited interpretation of the Constitution avoids the danger of 'legislating from the bench'.  Conservatives are critical of unelected and unaccountable judges who become 'politicians in robes'.

Liberals give less value to the strict meaning of the constitution and more to the outcomes of the court's decisions. Often liberal approaches are linked with the term 'living constitution', which conveys the idea that the constitution has to be interpreted to make it relevant to modern society.

There are a number of arguments that underpin the liberal view.

• ·      The constitution was written in broad terms, as the framers themselves envisaged the need for it to evolve and included deliberately vague terms such as the 'general welfare' to enable this to happen. The Constitution is short and vague on many points, this allows the Supreme Court keep it up to date. Critics of this view point out that Judicial Review was not mentioned in the Constitution but was established by the court itself in Marbury v Madison.

• ·The framers misjudged the amendment process to the constitution; the requirement of two-thirds majorities in Congress, and approval by three-quarters of the state legislatures, is too demanding, so that it becomes the responsibility of the court to bring the constitution up to date.

• ·      Society's values change; when the constitution was framed, for example, a variety of punishments such as public flogging were considered acceptable, and it would be ludicrous to insist on retaining the framers' view of 'cruel and unusual punishments'. Chief Justice Earl Warren said the Constitution must adapt to 'evolving standards of decency'.

• ·      'Originalism' is too inflexible and not even applied consistently by originalists themselves. For example, no originalist justice on the current court has ever publicly criticised the decision in Brown v Topeka Board, when much of the evidence suggests that the framers of the 14th Amendment (the 'equal protection of the laws' clause, on which the Brown decision was based) regarded it as consistent with the existence of segregated schools. Scalia has also be accused of Judicial Activism in the Gore v Bush 2000, Citizens United v FEC and NFIB v Sebelius cases.in the last two Scalia supported the striking down of Congressional laws.

The Debate Continues

Critics of original intent argue that most of the Framers did not expect those who came after them to be bound strictly by their work in perpetuity, regardless of changing social conditions or values. Rather, they expected that the basic principles of the Constitution would be retained but details would be adapted to meet the changing and unforeseen circumstances of the future. Justice William Brennan commented in 1985 that:

We current Justices read the Constitution in the only way we can: as Twentieth Century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. (Brennan, 1985: 19)

Originalists reply, however, that the rule of law cannot be maintained unless judges apply the Constitution to current controversies as the Framers intended it to be applied. As Ronald Reagan's Attorney General Edwin Meese III, put it, the problem with Brennan's 'living Constitution' approach . is not that it is bad constitutional law, but that it is not constitutional law in any meaningful sense at all'. If original intent is ignored, judges become lawmakers not law-interpreters, forsaking their duty to maintain an unbroken continuity of constitutional meaning from the founding era to today

A good but difficult example of the complex questions raised by the interpretation debate occurred in Maryland v Craig (1990), a case concerning the prosecution of an adult accused of sexually abusing a young child. The key question raised was whether a child could testify in court with only the prosecutor and defence counsel present (the defendant [her alleged abuser], judge and jury watching over closed-circuit television). The trial court had found that the child was too frightened to testify with the defendant physically present in the courtroom. The Supreme Court upheld the constitutionality of Maryland's state law that permitted her to testify with only the two counsels present.

But Justice Antonin Scalia dissented from the majority ruling in the case because the Sixth Amendment to the Constitution states that: `In all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him: When originally written by the Framers, confrontation meant face-to-face confrontation, the intention being to make it more difficult for witnesses to lie to someone's face. The plain language seems clear: the term 'all' is unequivocal. But many today feel unease at forcing a child to be confronted by an alleged abuser in court.

Scalia subsequently argued: