The judiciary (also known as the judicialsystem or court system) is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes.
Judicial Activism
Judges who are accused of “judicial activism” often share the following characteristics:
Interpreting law broadly to include personal liberties not explicitly enumerated within the document.
Overturning an existing law
Establishing a previously unarticulated legal principle or right
The term implies the judges are ruling based on their personal political convictions rather than a strict interpretation of the law. Of course, how strictly laws and especially the constitution should be interpreted is matter of great debate.
Critics of judicial activism believe that the Constitution should be interpreted according to original intent. By this, they mean that we should interpret the words according to what they meant at the time they were written. For example, critics argue that phrases like “due process” and “freedom of the press” had a long established meaning in British law, even before they were put into the Constitution of the United States.
Judicial Constructionism or Originalism
The underlying rationale of strict constructionism is that if a legislature truly wants to enact a particular law, they are quite capable of writing it down in plain English and passing it, and it is not a judge’s job to play around with legal fictions or psychoanalysis to reconstruct what the legislature’s subconscious intent could have been. Thus, for example, Justice Scalia refuses to look at committee reports that often accompany bills to the House or Senate floor, because the report reflects the views of only a small number of legislators and their staff, and often is not read by all the legislators before they vote as the Committee of the Whole.
Part One:
In a one page essay comment on the following:
What should be the role of the Courts, should the Courts interpret the law (originalism) or should the Courts make law (activism).
Part Two:
1. What was the role of federal district court judges in enforcing desegregation laws?
2. How do debates about judicial activism versus judicial restraint about a living constitution versus original intent relate to minority-group politics?
3. How does the judicial nomination and confirmation process influence racial and ethnic minority representation on the federal bench?
4. What proportion of lower court judges are Black, Latino, Asian-American, and American Indian and what impact do these proportions have on civil rights decisions?
5. Discuss the importance of Marbury v. Madison and the concept of judicial review. How did judicial review strengthen the power of the courts and establish a separate but equal third branch of government
