Americans have debated the proper role of the judiciary since the nation was founded in the 1780s. Though the founders established the judiciary as one of the three equal branches of government, the Federal Courts did not assert that role until the mid-20th century. Indeed, the nationÆs leaders and courts themselves have often been wary of the judiciary because it is such an undemocratic institution. Federal judges wield considerable power, often unchecked except by other judges, and they wield such power for life.
However, the courtsÆ undemocratic nature also can be a benefit. Courts are not subject to political pressure, which allows them to make unpopular rulings without fear of retribution at the ballot box. That facet of the courts has prompted many to call for ôjudicial activismö because some issues are just too difficult to resolve in the political branches of government. Thus, they argue that judges, with their insulated positions and largely unbridled power, must resolve certain issues for the good of the country. This paper will argue that while judicial activism served its purpose during the Civil Rights Era, as a general rule it is a dangerous concept that is only appropriate in extraordinary situations.
Traditionally, courts follow the doctrine of judicial restraint. According to this rule, the judiciary should be ôhighly respectful of precedent and should defer to the judgment of legislatures.ö In a democratic government, those who are elected by the people are best equipped to deal with issues that affect the public. In other words, majority rules, and judges only intervene in limited circumstances (Patterson 424).
Proponents of judicial restraint cite two main arguments. First, the judiciary, as an undemocratic institution, undermines the principle of self-government when it assumes a policymaking role. Such a role is best left to elected officials, who presumably reflect the view of the m...