Senate: Supreme Court of the United States and Judicial Restraint- Judicial Essay

Submitted By Tomcromptonfp1
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Pages: 4

Constitutional interpretation- the method by which judges interpret the constitution. There are several different methods or schools of thought on how judges interpret the Constitution. Some see the constitution as dead, and interpret it in a textualist manner, some try to apply the Framers’ original intent, whilst some see the Constitution as a living document that changes over time.

Judicial review- this is the precedent which allows Justices to declare laws as unconstitutional. This precedent was established by Marbury vs Madison 1803, allowing the power of the judicial branch to grow over time. Some examples of judicial review are Roe v. Wade, (1973), in which the Court overturned a Texas law prohibiting abortion; Brown v. Board of Education, (1954), in which the Court overturned state laws permitting racially segregated public schools; Texas v. Johnson, (1989), in which the Court overturned a Texas law prohibiting desecration of the US flag; and Lawrence v. Texas, (2003), in which the Court overturned a Texas anti-sodomy law as an unconstitutional invasion of privacy.

Original intent- the consideration of the original intentions of the Framers’ when drawing up the Constitution. This is the main ideology behind the originalist ideology. Differs from original meaning, or textualism, which is the idea of interpreting via the meaning of the words of the Constitution, rather than the original intentions behind them.

Judicial activism and judicial restraint- Judicial activism is the practice of justices exceeding their roles as umpires, and instead becoming, to a degree, lawmakers. Judicially active judges take the spirit of the times and the need of the nation into account when interpreting the Constitution, leading to judgment that often goes beyond a mere textual interpretation. The Warren Court was a notoriously active Court, as was the Burger Court which passed laws such as Roe vs Wade on ‘emanations and penumbras’ rather than concrete Constitutional grounding. However, judicial activism is not merely a legal practice, as seen when Thomas ‘buried the bones’ for 2nd Amendment challenges after Printz vs USA. Judicial restraint is the opposite of this, and is often seen as a conservative idea. Justice Robert’s showed typical qualities of judicial restraint when he called himself an ‘umpire’, a mere referee of Constitutional matters, not a key player. Restrained judges often do not actively look to get involved in political matters or seek to pass judgment, and instead only decide cases which come before them.

Judicial independence- the theory of separation of powers, established by Montesqieu. It is believed that for the judiciary to be truly effective they need to be kept away from political influence. This independence is upheld through checks and balances, e.g. judicial review, impeachment of executive, impeachment of judges, senatorial judicial committee etc. However, many feel due to the fact Justices are appointed by President, they will never be truly independent. Moreover, justices are often drawn into political fray when in office e.g. Bush vs Gore, and Citizens United vs FEC.

Strict and loose constructionism- Strict constructionism is the philosophy of interpreting the