In simple words what is Judicial activism and Judicial restraint?

Question

Thank you

Answer 1

In legal terminology -- judicial activism is when a judge completely ignores the law -- and doesn't even make a good faith interpretation or extension of the law -- and rules solely based on what they think is just. Also sometimes called "abuse of discretion".

Judicial restraint is playing it safe -- and not being willing to bend or extend the law for anyone -- no matter how much justice cries out for such an extension or exception.

So, for actual legal meaning -- they are two extremes, with reasonable rulings in the middle.

In practical everyday terms -- judicial activism is any outcome that people don't like -- and judicial restraint is when the court doesn't get involved at all.

In other words -- people often accuse judges of judicial activism even when the judge is following the law -- any time they don't like a judge's ruling because they think the court should have ruled differently -- without even realizing that ruling contrary to the law IS judicial activism -- whether people like the result or not.

Answer 2

There IS no good definition, because the words are so politicized. The Term "judicial activism" was a term coined by Conservatives / Republicans for actions taken by courts that they perceived to advance the "liberal" cause. To conservatives declaring a law unconstitutional because it violates someone's free speech rights is "judicial activism," but declaring a law unconstitutional because that area should be regulated by the states (and harms businesses) is called "judicial restraint.

I guess "judicial activism" is whenever a court exercises its power to prohibit one branch of government from doing something or require that the branch of government do something (i.e. declare a law unconstitutional, force the president to provide documents...). "Judicial restraint" is when a Court does not exercise that power, or does so in the least invasive manner.

Brown vs. Board of Education was "judicial activism." But so was Bush v. Gore So was "Marbury v. Madison," the case that established that the Supreme Court could declare laws unconstitutional. Judicial "activism" is not something that liberal nor conservative judges "like" or "don't." it's just something that has to happen under the circumstances or not.

(EDIT: Note the previous answerer uses the word "like" -- striking down laws that the judge doesn't "like." That implies the judges' personal preferences --even beyond political preferences -- enter into the picture. If it's a "good idea," they won't strike down the law; if it's a "bad idea," they will. I would think that almost no one would really believe that judges' personal "likes" or "dislikes" about the law enter into consideration--it's whether the judge believes that the laws are valid or invalid; constitutional or violative of the constitution, that make the difference.)

Answer 3

Define Judicial Activism

Answer 4

Judicial Activism Definition

Answer 5

I know you asked for "simple words," but this topic isn't simple. In their more common uses, "judicial activism" means that the courts (usually the Supreme Court) have "struck down" a law without a valid interpretation of the Constitution; that the judges (Justices) were motivated by their own ideologies rather than an objective interpretation of the Constitution when they declared that a certain law was a violation of the Constitution.

"Judicial restraint" is a concept which emphasizes why judges should not "strike down" laws that they don't like.

Hence, a person who supports "judicial activsim" emphasizes that courts should "stike down" all "bad" laws that have been made by legislatures. A person who supports "judicial restraint" emphasizes that courts should NOT "strike down" all of the bad laws.

Here are a couple of paragraphs that appeared in 1968, in an opinion written by Sup. Ct. Justice William O. Douglas, who was a strong believer in "activism."

"There has been a school of thought that the less the judiciary does, the better. It is often said that judicial intrusion should be infrequent, since it is 'always attended with a serious evil, namely, that the correction of legislative mistakes comes from the outside, and the people thus lose the political experience, and the moral education and stimulus that come from fighting the question out in the ordinary way, and correcting their own errors'; that the effect of a participation by the judiciary in these processes is 'to dwarf the political capacity of the people, and to deaden its sense of moral responsibility.' J. Thayer, John Marshall 106, 107 (1901).

"The late Edmond Cahn, who opposed that view, stated my philosophy. He emphasized the importance of the role that the federal judiciary was designed to play in guarding basic rights against majoritarian control. ... His description of our constitutional tradition was in these words: 'Be not reasonable with inquisitions, anonymous informers, and secret files that mock American justice. Be not reasonable with punitive denationalizations, ex post facto deportations, labels of disloyalty, and all the other stratagems for outlawing human beings from the community of mankind. These devices have put us to shame. Exercise the full judicial power of the United States; nullify them, forbid them; and make us proud again.' Can the Supreme Court Defend Civil Liberties? in Samuel, ed., Toward a Better America 144-145 (1968)" Flast v. Cohen, 392 U.S. 83, 110 (1968), Douglas, J., concurring."

To the answerer below me, check out this answer I gave about a year ago.
http://answers.yahoo.com/question/index;_ylt=AmlzsxrsVjQJi0XkRelh9C3ty6IX;_ylv=3?qid=20061128204956AAkoiRY&show=7#profile-info-0f2b54c68a3d863e0ccb8e2f5fd41793aa
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