Gov: Judicial Views


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The most controversial cases decided by the Supreme Court are often those that involve judicial review. Nowhere does the Constitution mention the power of judicial review. In 1803, the Supreme Court took on that duty for the first time in Marbury v. Madison. In that case, the Court declared a portion of the Judiciary Act of 1789 to be unconstitutional. It thus established the power of the judiciary to review the constitutionality of legislative or executive actions. Over time, judicial review has become the judicial branch’s most important check on the other two branches. More than two centuries after the Court assumed this power, Americans are still divided about its proper use. On one side are supporters of judicial activism, and on the other are advocates of judicial restraint.

Judicial activism is based on the belief that the Court has both the right and the obligation to use its power of judicial review to overturn bad precedents and promote socially desirable goals. Liberals tend to be more supportive of judicial activism than are conservatives. They look to the Court to defend the rights of women and minorities, for example, when legislatures fail to act.

Advocates of judicial restraint hold that judicial review should be used sparingly, especially in dealing with controversial issues. Conservatives tend to be more supportive of judicial restraint than are liberals. In their view, elected representatives, not unelected judges, should make policy decisions.

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