Judicial Restraint Vs. Judicial Activism

Judicial Restraint v Judicial Activism: District of Columbia v Heller, 2008 The Constitution states that the “judicial Power of the United States, shall be vested in one supreme Court,” a court made up of justices from different backgrounds, races, religions, and most importantly political views. The Court has the ultimate responsibility of overseeing all affairs of Congress and – when deemed necessary – acting to overturn decisions found not in accordance with the Constitution. When deciding cases that could potentially violate the Constitution, justices use judicial restraint or judicial activism in their decision-making. Judicial activism is a term used for instances in which judges “creatively (re)interpret the texts of the Constitution and the laws, ” allowing them to meet the needs of the people that would not be met otherwise; justices essentially act as policy makers. The fault in this lies in the motivation behind the justices’ decisions; with judicial activism, it is nearly impossible to view law as objective and free of bias. Many fear that in acting as policy makers, justices bring their own partialities and beliefs into account instead of allowing the literal interpretation of the Constitution guide their decisions. On the other hand, judicial restraint can also be used when deciding cases. Judicial restraint refers to justices interpreting the United States Constitution word for word, keeping from bringing their own beliefs or biases into account and most importantly refraining from assuming the role of policy maker. Under judicial restraint, justices work to uphold the laws that are already in place and to maintain the laws as they stand except in the event that they are blatantly unconstitutional. Essentially, judicial restraint works to preserve the laws already in place and refrain from making significant changes to public policies. But much like judicial activism, judicial restraint isn’t perfect; the major flaw of judicial restraint is that it does

As we have already established, judicial restraint is exercised when justices work to make sure public policies are not changed, keeping laws and statutes just as they have been; by interpreting the United States Constitution literally, taking every word at face value, justices remain solely in their roles as justices without assuming the role of a policy maker. In District of Columbia v Heller, the justices of the Supreme Court took the literal interpretation of the 2nd Amendment into account when deciding the case. The 2nd Amendment states, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Justices deciding District of Columbia v Heller believed that “…the right of the people to keep and bear Arms, shall not be infringed,” trumped the segment of the Amendment that states that the right to bear arms was necessary in keeping a militia; it was made clear that “the right of the people” in the 2nd Amendment referred to citizens’ individual rights to keep firearms, not the states’ rights to keep a militia as was determined in United States v Miller. Though this interpretation of the 2nd Amendment by the Roberts Court was different than that of the justices who decided United States v Miller, the way in which the amendment was interpreted made sure that no changes were made to existing laws or policies, i.e., the Bill of Rights. By doing so, justices established judicial restraint in District of Columbia v Heller by keeping policies in place instead of making significant changes to laws that have been the foundation in which our nation was built