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22320VIC Diploma Of Justice
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22320VIC Diploma Of Justice
0 Download3 Pages / 676 Words
Course Code: 22320VIC
University: Swinburne University Of Technology
MyAssignmentHelp.com is not sponsored or endorsed by this college or university
Country: Australia
Question:
Write a paper on judicial activism. Present the arguments on both sides of the question as to whether judges should interpret or simply apply the Constitution. Research and provide more current examples (the current Supreme Court docket) and predict how you think the justices will decide.
Then think about the idea that if one can predict the decisions of the justices on the Supreme Court-where does that leave the idea that no case is prejudged?
Answer:
Introduction
The judicial activism refers to the judicial rulings, which are suspected of being based on their personal opinion rather than dealing with the relevant law. It is also been considered as an opposite of judicial restraint. The Judicial Activism will be discussed and analysed whether the judges should interpret the decision or may simply apply the Constitution. It will be analysed with the current examples of the cases of the SC and will think on the idea if one can predict the judgement.
Arguments
Sometimes the Judicial activism is required because laws can be unclear or they can be construed in many other ways. Judicial Activism also increases the public engagement in politics with the law that allows for direct democracy. Judicial System is necessary because there are some sensitive issues that are required to be handled with care that cannot be allowed with certain laws. There is the role of judicial system starts that allow judges to use their personal judgement in the situations where the law fails. It has some other benefits such as it is a method of social reform as the government in the U.S allows the Supreme Court and the other federal courts to involve in judicial activism. In some cases of the Supreme Court the judicial Activism becomes necessary such as by taking examples of recent docket case of the SC. In Apple Inc v. Pepper (Docket 17-204) case, the issue is whether the consumers can anyone who delivers the goods to them for the non-trust damages based on the cost that has been set by the third parties. This case applies the rule “Illinois Brick doctrine” that was given in the old case by the Supreme Court. Thus, the judge can take help from the case but does not directly apply the Constitution. In some cases, it is required to see other factors that has happened and for that interpretation is necessary (Schacter, 2018).
The Supreme Court judges interpreted the law that can be viewed as proactive or destructive in accordance with the individual’s belief. However, individuals’ belief does not matter in the judicial system. Many judges do not agree with the constitution on some issues but the democracy works is that the constitution is a living representative document of the people. The people elect their representative who must add to the Constitution and speaks for them. It can be concluded that the Constitution is the majority of the people of the United States opinion. If the Constitution has not been used as, a source of justice than the justice will go in the hands of individuals that will contradicts the structure of the democracy. It can also be said that judges are not one who make laws. In Gamble v. United States (Docket 17-646) case, it is the case that is questioning the Constitution that the separate sovereign exception to the double jeopardy should been overruled. The judges must take Constitution into consideration in this case cause or else it can be destructive for the Constitution (Lindquist, 2017).
Analysis
If personally been analysed that if the judges will give the decision by only considering the Constitution than the judgements will already been assumed or been predicted. So in my personal views the judges must be independent and they must interpret the law. A judge is required to interpret the Constitution written and been informed about the history and the tradition (Kmiec, 2004).
Conclusion
It can be analysed from both the arguments that the judges must give the decision by interpreting the Constitution and not only Constitution into the consideration.
References
Apple Inc v. Pepper (Docket 17-204)
Gamble v. United States (Docket 17-646)
Kmiec, K. D. (2004). The origin and current meanings of judicial activism. Cal. L. Rev., 92, 1441.
Lindquist, S. A. (2017). Judicial activism in State Supreme Courts: institutional design and judicial behavior. Stan. L. & Pol’y Rev., 28, 61.
Schacter, J. S. (2018). Putting the Politics of “Judicial Activism” in Historical Perspective. The Supreme Court Review, 2017(1), 209-272.
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