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The answer depends on your perspective. In Nixon, the US Supreme Court used judicial review to check the power of the President, limiting the Chief Executive's constitutional right to invoke Executive Privilege. Critics of the Court's decision may say that the Supreme Court overreached its authority by exercising judicial review (which is an implied power) and by placing restrictions on the President's use of Executive Privilege, which some may consider absolute. From that perspective, US v. Nixon, (1974) may be considered an instance of judicial activism.
The Supreme Court faced a dilemma in Nixon, in that allowing the President to withhold evidence under the doctrine of Executive Privilege abrogated Fifth and Sixth Amendment rights of the defendants charged with participating in the Watergate break-in and its cover-up.
In response to an argument that Special Counsel Leon Jaworski didn't have authority to subpoena the tapes, the Court held that 28 USC § 503 made the Attorney General head of the Department of Justice, charged with investigating and prosecuting crimes. Congress provided that the AG could delegate authority to the Special Prosecutor, and that Nixon could not rescind this power.
The President is not above the law. In the Watergate case, Nixon's recordings of conversations about the Watergate scandal essentially made him an unindicted co-conspirator. The President cannot (is not supposed to) use the power of his position to protect himself against criminal charges.
Proponents of the Court's decision may consider their constitutional interpretation valid, and not a case of judicial activism, although it probably wouldn't really be considered judicial restraint, either.
Chief Justice Warren Burger wrote, in the opinion of the Court:
"However, neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide."
Case Citation:
United States v. Nixon, 418 US 683 (1974)
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What kind of restraint does the US Supreme Court uphold?
Good question.You may mean "judicial restraint," in which the Court upholds earlier precedents, supports enacted law, and interprets the Constitution as closely as possible to the framers' purported intent. While this is supposed to be the ideal position in order to maintain a balance of power among the three branches of government, both liberal and conservative Courts have engaged in judicial activism, overturning long held precedents in favor of advancing a particular social or political agenda.Many conservatives accused the Warren Court of judicial activism for their decisions advancing individual civil liberties; on the other hand, many liberals have accused the current Roberts' court (and some before it) of practicing judicial activism by making decisions favoring corporate interests to the detriment of individual rights, as in the case of Citizens United v. Federal Election Commission, (2010) or conservative politicians, as in Bush v. Gore, (2000).The Court deviates from upholding judicial restraint often enough to make judicial restraint an incorrect answer; nevertheless, it is probably the answer your instructor expects.
How would the US Supreme Court decide a case using judicial restraint?
Judicial restraint follows earlier precedents, tends to uphold existing or new laws, and uses an originalist or constructionalist interpretation of the Constitution (these are literal frameworks).
What is the US Supreme Court's philosophy about not changing social or political policies?
You may be asking about "judicial restraint," a concept that favors upholding Acts of Congress and established precedent. Judicial restraint can be contrasted with "judicial activism," which is sometimes used interchangeably with the phrase "legislating from the bench," a pejorative applied to courts that overturn laws and precedents as unconstitutional. For more information, see Related Questions, below.
Under what Chief Justice did the US Supreme Court adopt the philosophy of judicial activism?
Chief Justice John Marshall
Is Brown v Board of Education considered judicial activism or judicial restraint?
Brown v. Board of Education, 347 US 483 (1954) has often been cited as an example of liberal judicial activismbecause it ignored the doctrine of stare decisis (Latin: let the decision stand) by overturning the long-accepted "separate but equal" standard established in Plessy v. Ferguson, (1896) and reinterpreting the 13th and 14th Amendments in a manner that supported African-Americans' civil rights.Progressives hasten to point out that Plessy was a bad precedent, and the Warren Court simply corrected social and political biases that were not intended when the Thirteenth and Fourteenth Amendments were ratified. One could just as easily say the Plessy case was an example of judicial activism.Bear in mind that "judicial activism" is an ambiguous concept relative to a person's point-of-view and interpretation of the Constitution, and is the result of subjective judgment both on the part of the justices ruling on a case and on the part of the individuals analyzing the Court's decision
Who was the US Supreme Court justice whose judicial activism came under increasing attack by conservatives?
Chief Justice Earl Warren (1953-1969)
How is the Jessica Lal case related to judicial activism in India compared to that of a developed country like the US?
In judicial activism it is the people who give jutice to the victim and this is what happened in jessica lal case. thousands of Indians protested and stood for her so that she could get justice...
What is John P Roche's idea on judicial self restraint?
Please view Chapter 9 The Judiciary -Dr Cash's AP US Government & Politics
Example of Judicial activism?
Marbury v. Madison, 5 US 137 (1803)Marbury vs Madison is activist in the way the court took action to say that the Constitution overrides laws passed by the congress (legislature). Therefore it turned down a request by Marbury to put him in as a Justice of the Peace because doing so would require the Courts to allow the Congress peremptory power over the Constitution. This was not allowed and is referred to as the start of judicial activism. However it is a complex case (Marbury vs Madison.)For more in-depth information on Marbury v. Madison, see Related Questions, below.
What is the debate between judicial restraint and judicial activism?
Judicial Restraint vs. Judicial ActivismThe role of the judiciary branch has been up for debate for centuries. This is mostly due to no specific mention of the judiciary's exact task in the Constitution, except the checks and balances and separation of powers left behind by the Founding Fathers.Another factor in the debate is how the Constitution is interpreted. The method of interpretation is highly subjective and leads to further arguments on the role and power of the judicial branch.One last factor is the personal ideology of the judges. Personal views can affect a judge's judgment significantly to the point of questioning the judge's basis for decision-making.There are six main methods of interpreting the Constitution. One is textualism, or similarly, strict constructionalism. This means solely the text is referred to.For example: "Congress shall make no law… abridging freedom of speech" means exactly "no law." However, it has the drawback that not exactly everything is stated in the Constitution.Another similar method of interpretation is contextualism, which is attempting to derive the meaning from the text. Its main drawback, however, is subjectivity. "Freedom of speech" can be interpreted in over a hundred different ways. Is treason protected? Is flag-burning protected? Public school prayer? These kinds of arguments have all been hot topics of debate.Two other methods are originalism and structuralism. Originalism attempts to discover the original intent of the framers while structuralism attempts to refer to the structure of government (checks and balances, separation of powers, etc.). However, both methods are highly subjective. It is difficult to determine the framers' original intent when they purposely left the Constitution vague and ambiguous. It is difficult to base decisions on structuralism without hard concrete proof like textualism and contextualism.Two final methods are doctrinalism and developmentalism. Doctrinalism is the basing of decisions on previous case precedents or stare decisis. This is a standard approach of the judicial system.For example Plessy v. Ferguson held against many challenges until 1954's Brown v. Board of Education decision. Developmentalism is the add-on to doctrinalism in the sense that historical events and political culture are included for interpretation. However, both methods are negative in the sense that they both detract attention from the Constitution.There have been literally hundreds of landmark cases, but only a handful that have been brought up in the judicial restraint-activism debate. Judges have been noticeably making use of contextualism until the progressivist era.For example: Plessy v. Ferguson was passed on the basis that the Constitution did not mention or intend that blacks have the same citizenship rights as whites and that segregation was unconstitutional. The ruling was not overturned until Brown v. Board of Education, which has been touted because critics say that the judges "overstepped their bounds" or became too activist in their ruling.There are many cases where critics have argued that the judges and jurors were too activist in their decision, and possibly too self-centered on their personal views. Some examples include Roe v. Wade concerning abortion. The Supreme court ruled that abortion must be legal to protect the woman's health and privacy. The court ruled that it was unconstitutional for the government or anyone else to intervene in another person's personal affairs. In the Court's opinion, nobody could tell a woman that she could or could not have a child.Another debated ruling includes Lawrence v. Texas where the court ruled that consensual homosexual sex was legal and protected by the Constitution on the basis of personal liberty. Lochner v. New York was a debated case before the progressivist era.The Supreme court once ruled that minimum wage laws were unconstitutional because they infringe on one's right to negotiate business contracts.Other highly debated cases include Mapp v. Ohio dealing with search warrants and unwarranted evidence, Roper v. Simmons dealing with the death sentence and minors (under 18), and Miranda v. Arizona dealing with the accused knowing their (Miranda) rights and what they are accused of.Other things to consider are the judges' ideology. Conservative judges are likely to be more conservative in their decisions, such as Justice Felix Frankfurter. They will be more inclined to view the Constitution as a definite document, practice judicial restraint, be pro-life, and against the separation of church and state, viewing morality as an important factor.Liberals, on the other hand, such as chief justice Earl Warren, view the Constitution as a living document that is dynamic. Liberal judges are generally activist in their decisions, pro-choice, and a proponent of the separation of church and state.Moderates, obviously, would be a mix of both.However, that is not to say that judges should be confined to rigid categories. Conservative judges have sometimes practiced judicial activism and liberal judges sometimes practice judicial restraint.The role and power of the judicial branch has long been debated. Are judges supposed to practice judicial restraint, merely interpreting the Constitution or are judges supposed to practice judicial activism, proposing new laws and precedents, which may or may not be based on the Constitution?Additionally, how exactly is the Constitution supposed to be interpreted? One thing that is certain is that judges should not lie on the ends of the spectrum. Too much judicial restraint could lead to more decisions such as Plessy v. Ferguson and Dredd Scott v. Sandford, denying African Americans equal rights, whereas too much judicial activism could lead to more decisions such as Roe v. Wade and Lawrence v. Texas, adding rights and lessening restrictions but striking down conservative views.
What is judicial activism?
Judicial activism is the tendency to interpret the Constitution or law in a way that goes beyond the original authors' intent, in order to influence public policy. Activism can be either conservative or liberal: Conservative activism tends to narrow the scope of interpretation to restrict government or individual rights; liberal activism tends to broaden the scope of interpretation to expand individual rights in keeping with progressive social norms.Martin Garbus, in his book Courting Disaster: The Supreme Court and the Unmaking of American Laws, claims the Marshall Court, New Deal Court, Warren Court and Rehnquist Court all made decisions that had their basis in political agendas, rather than laws.Often, charges of judicial activism mean the Court or justice has made a decision with which the accuser disagrees. Therefore, progressives accuse conservatives of being judicial activists when they interpret the Constitution to support conservative political ideologies; conservatives accuse progressives of being judicial activists when they interpret the Constitution to support progressive political ideologies.Conversely, when a Court upholds an earlier precedent under the doctrine of stare decisis, or refuses to declare a challenged act of Congress unconstitutional, or otherwise upholds the status quo, they are said to be practicing judicial restraint.The debate between judicial activism and judicial restraint tends to reveal as much about the opinions of the person making the accusation as the tendencies of the Court.Commonly Cited Examples of Judicial ActivismMarbury v. Madison, 5 US 137 (1803)Dred Scott v. Sanford, 60 US 393 (1857)Lochner v. New York, 198 US 45 (1905)Brown v. Board of Education, 347 US 483 (1954)Griswold v. Connecticut, 381 US 479 (1965)Loving v. Virginia, 388 US 1 (1967)Roe v. Wade, 410 US 113 (1973)A+LS: A justice allows his or her personal opinions to influence a decision
How does the concept of judicial activism relate to President Obama's most recent nominee for the US Supreme Court particularly the Senate?
It doesn't. Judicial activism refers to court decisions where the judge(s) or (more often) Supreme Court justices interpret the Constitution in a manner that goes beyond its purported intent in order to influence public policy. The term is subjective and often used to criticize decisions which those with opposing ideology disagree.Although judicial activism is usually associated with progressive Courts (like the Warren Court), conservative Courts are equally guilty. One recent example is the 5-4 decision in Citizens United v Federal Election Commission, 558 U.S. 50 (2010) overturning legislation designed to limit corporate campaign donations.With regard to Obama's current (2010) nominee, Elena Kagan has never served as a judge, so she has no record of jurisprudence and can't be accused of participating in decisions that would be criticized as judicial activism. The Senate Judiciary Committee, likewise, is not guilty of judicial activism because the term doesn't apply to their function in the appointment process.For more information, see Related Questions, below.
