Judicial activism and judicial restraint | US government and civics | Khan Academy

What we're going to do in this video is talk about the terms judicial activism and judicial restraint. In many videos, we have talked about how the judicial branch, one of its main powers, is to be a check on the executive and legislative branch; that it can exercise judicial review over them. It can say that a legislative action, that a law, that a statute is unconstitutional. It can say that an executive action, say a rule or regulation or an executive order, is unconstitutional.

But as it's doing that, as it's exercising its judicial review, how does it go about doing that? This term judicial activism was first introduced by Arthur Schlesinger, who we've talked about in other videos, and it's meant to imply a judiciary that is not strictly just ruling based on maybe what the Constitution says, but also their own personal ideas. So personal views. It sometimes has an implication that the judges are overreaching in some way; some people might say it. And this would be a little bit of a negative - legislating from the bench, legislating from the bench.

You'll often hear that, "Hey, that judge or that court is legislating from the bench," from the people who don't like their ruling. They're saying, "Hey, they're not strictly looking at the law; they're trying to make their own laws through their rulings." Now, some would say that it's necessary for the judicial to do this because they are interpreting the Constitution in the world as it is, and the world that we are in changes over time. So it is really a form of positive activism that they are defending liberties, that they are defending rights, especially in the social context that we're in. I'll leave you to decide whether you think this is a good idea or not.

Now, judicial restraint is the opposite of it. This is a situation where the judges or the courts limit their power. So limit their own power, their own power, where they say, "Hey, look, our job is to just be the umpire, the referee. Our job is not to make new rules." And so we are just going to strictly think about whether something is constitutional or whether it is not. One of the most seminal cases on judicial activism versus judicial restraint happened in the early 1960s, and that is the case of Baker versus Carr.

So what happens is that Baker is a resident of Shelby County, Tennessee. He was actually the former mayor of a town outside of Memphis, which is in this area right over here. He says that, "Look, the state is not re-apportioning its legislative districts the way it should be." In general, every 10 years there is a census, and based on that, we have an understanding of where the population sits, and then the state should be reapportioning districts based on population.

But what Baker argued is that the state of Tennessee actually did not redistrict since 1901 after the census of 1900, and it was now the early 1960s. He says, "Because of that," and he invoked the 14th Amendment, "you weren't getting equal protection." People in his county had gotten increasingly urban and had gotten increasingly dense over the course of those 60 years; they were getting the same representation despite having a larger population than some of the rural areas where they had a lower population and had the same number of representatives.

So he takes this case against the Secretary of State of Tennessee at the time, who was Carr, and it eventually gets to the Supreme Court. The essential question in Baker versus Carr is whether the courts even have jurisdiction over legislative districting because the districting was a power of the state legislature in Tennessee.

In this case, the United States Supreme Court actually did vote in favor of Baker. So not only did they say that Baker was right in asking for this redistricting, it had huge implications in saying that yes, courts like the United States Supreme Court do have jurisdiction over something that was officially a legislative duty. Telling the legislative that, "Look, you've got to do this because by not doing this action, by exercising your discretion there, you might not be allowing everyone to have equal protection."

We have argued, including the two dissenters to the opinion, that this was a form of judicial activism. It increased the power of the judiciary. To appreciate the view of the United States Supreme Court that they do have jurisdiction over legislative districting, here is part of Associate Justice Douglas's concurring opinion: "Where the performance of a duty is left to the discretion and good judgment of an executive officer, the judiciary will not compel the exercise of his discretion one way or the other; for to do so would be to take over the office."

So he's saying, "Look, when it is someone's job, where there's an executive officer to do this duty, then the courts should not have jurisdiction there." But then he goes on to write, "There is no doubt that the federal courts have jurisdiction of controversies concerning voting rights. The Civil Rights Act gives them authority to redress the deprivation under color of any state law of any right, privilege, or immunity secured by the Constitution of the United States or by any act of Congress providing for equal rights of citizens."

Really saying that, "Look, if the court can see that some right is being violated, some right that's described in any under the state law under the United States Constitution, then the courts do have jurisdiction." The right to vote in both federal and state elections was protected by the judiciary long before that right received the explicit protection it is now accorded.

So he's saying, "Look, even before the Civil Rights Act, even before the 14th Amendment, that this was something that was part of the charter of the judiciary, part of the federal court system." And so it does lean in favor of judicial activism because you can imagine courts, and they have cited Baker versus Carr since the 1960s repeatedly as a reason saying, "Hey, look, we're trying to protect people's rights and people have a right to do x, y, or z," even if it hasn't been explicitly legislated.

Now, there were two dissenters, and this is what the dissenters wrote: "The Court's authority possessed neither of the purse nor the sword." So here the "purse," that's the legislative branch that can think about budgets, or the "sword," that's the executive branch, the president's the commander-in-chief. "Ultimately rests on sustained public confidence in its moral sanction." Let me underline that: "Unsustained public confidence in its moral sanction." Such feeling must be nourished by the Court's complete detachment, in fact and in appearance, from political entanglement and by abstention from injecting itself into the clash of political forces in political settlements.

So here Associate Justice Frankfurter, in his dissenting opinion, is saying, "Look, we should stay out of this." Not only is it not our part to rule here to say that, "Hey, look, the legislative needs to do this redistricting," again he's saying that it actually undermines the credibility of the court. The credibility ultimately rests on sustained public confidence in its moral sanction, and that by ruling in favor of Baker, the court was overstepping these bounds.

That people say, "Hey, you're trying to legislate from the bench, you're trying to get involved in the political," even though the court is supposed to stay above the fray of the political. Or another way to think about this is that Associate Justice Frankfurter subscribed to the idea of judicial restraint and felt that the other six justices that were voting in favor of Baker were practicing, to some degree, judicial activism. They were getting into the territory of the other branches of government.