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Judicial Activism vs Judicial Restraint: What Is The Difference?

Judicial activism vs judicial restraint is two terms that have been used to describe the judicial branch of government. They refer to how judges feel about their role in society, as well as what they believe is acceptable from a judicial standpoint. In this article, we will discuss the difference between judicial activism and judicial restraint, so you can better understand these concepts before coming across them again.

The ongoing legal and philosophical debate

Judicial activists believe that the Supreme Court should take action on abortion, same-sex marriage, or capital punishment to make decisions fairer for everyone involved.

  • On the other hand, judicial restraint is when a judge decides not to do anything about a law that may be unconstitutional because they don’t want to overstep their boundaries.
  • The recent Supreme Court case, National Institute of Family and Life Advocates v. Becerra, has sparked a conversation about judicial activism vs. judicial restraint which is vital to many people in the United States today for different reasons.
  • The judiciary is an independent branch of power in the American government that interprets and applies the law to cases.
  • In general, there are three main types or philosophies for how judges should approach their role: judicial activism vs. judicial restraint, judicial conservatism (or originalism), and pragmatism.
  • We will define each one and explain why knowing what they are matters in politics today.
Judicial activism vs. Judicial restraint
Shades personify justice.

Judicial Activism Vs Judicial Restraint

The first thing we’ll look at is “judicial activism.”

  • Judicial activism means when judges make decisions that go beyond their authority or power to make an impactful change that alters society even though it’s not within the scope of their job description.
  • It also means making up laws without any legal backing. An excellent example of this would be Roe V Wade.
  • The judiciary adjudicates legal disputes and interprets, defends, and applies the law in legal cases. The active role of the judiciary includes upholding and promoting the rights of citizens in a country.
  • The judiciary also acts as a system that works for the resolution of disputes.

Judicial Conservatism

Judicial conservatism or originalism is the legal theory about the interpretation of statutes, based on adherence to what is believed by some people today (the living constitution view) about what the framers of the constitution probably meant judicial conservatism

What do Judicial Activists do?

Judicial activists work in many different ways, depending on who exactly you ask about this topic. Some say that judicial activist judges take too much power away from elected officials and allow for rulings that go against a public opinion or popular sentiment at any given time.

  • Others argue that judicial activism allows for an exception where there was no clear direction by the legislature or even if there is a disagreement between legislatures with these exceptions as long as they follow certain protocols such as hearing all sides of the argument before making decisions.
  • Judicial activists believe that they have a duty to make sure the judicial branch is always protected. Judicial activism can be used for good or bad, depending on who you ask and in what situation it’s being used.
  • Judicial activists work to rule on lawsuits in a way that results in a preferred or desired outcome, regardless of what is written in the law. It is the sphere in which judges overrule certain acts or judgments to protect a wider perspective. 

Judicial activism and judicial restraint differences

  • Judicial Activism plays an important role in formulating social policies on civil rights protection and political unfairness.
    • It sets out a system of balances and controls for the government. It highlights the required change by providing a solution.
    • Allows judges to utilize their personal judgment on issues in case of imbalances. 
    • Works on courts playing a proactive role in ensuring and protecting citizens’ rights.
  • Judicial Restraint helps in preserving a balance among the judiciary, executive, and legislative branches of government.
    • Enables courts by and large to concede to interpretations of the constitution by congress or some other established body.
    • Encourages the court to review an existing law instead of modifying it. 
    • Allows courts to state legislature and upload acts of congress unless they violate the constitution.

The Pros and Cons of Judicial Restraint

Judicial restraint sometimes causes problems when judges are elected by popular vote of fellow citizens instead of appointed, and this causes judicial rulings which go against public opinion.

  • Judicial restraint is important because there needs to be limited to how much power one individual has over another person, especially if those people were put into place through democratic means such as elections.
  • Judicial restrainers would say that activist judges could destroy democracy with their actions. In contrast, judicial activists would argue that we wouldn’t have a fair justice system without judicial activism where all parties involved get heard equally.
  • Judicial activism has a long history in America, but judicial restraint is becoming more and more popular as the years go by. Some people can see judicial activists as having too much power for themselves, while others think of them as having an important job that needs to be done with fairness so that all citizens are treated equally under the law.


The difference between judicial activism and judicial restraint is important because one promotes more power for courts while the other limits their power to only what they are legally allowed to do.

Only a fine balance between these government bodies can maintain constitutional values. 

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