The Constrained vs. Dynamic Court Debate: Napster
The dynamic court and the constrained court are two alternative constructions of the role of U.S. courts in producing significant social reform (Rosenberg, 1991). In essence, two opposing views of the role that should be undertaken by the courts have emerged over time. The idea of a ôconstrainedö court is based on an ideology dating back to the Founding Fathers. This approach suggests that the conditions required for the courts to produce significant social reform seldom exists. The constrained court operates from a strict construction of the U.S. Constitution, limits judicial independence, and tends to emphasize a lack of tools available to the courts to develop appropriate policies and implement decisions that order significant social reform (Rosenberg, 1991).
The ôdynamicö court view asserts that the constrained court view misses key advantages of courts. As Rosenberg (1991) notes, crucial to the dynamic court view is the belief that courts are free from electoral constraints and institutional arrangements that inhibit change. This view proposes that courts are able to act in the face of public opposition because they are insulated from political pressures and because they are in the strongest position to insist that unconstitutional conditions be remedied even at a significant financial cost. As Rosenberg (1991) maintains, those who call for a dynamic court system believe that courts are in an ideal position to remedy social injustices and to mobilize other resources and institutions to affect positive social change.
The questions raised by the debate between those who favor a dynamic or a constrained judicial system speak to many different issues in the United States. Hall (1992) argues that the contemporary U.S. court system and the Supreme Court in particular have been subject to criticism regarding judicial activism. The distinction between judicial a...