The Supreme Court of the United States currently hosts nine justices from different backgrounds and specialties. These justices ultimately determine the “supreme law of the land,” as no executive action, meaning presidential power, or veto by Congress is eligible to challenge, or override, their decisions.
Oftentimes justices are faced with cases, like in Dobbs v. Jackson Women’s Health Organization (2022) where there is a certain niche or specialty at the center of the issue. The expert issue in Dobbs is female reproductive health, as evidenced by the facts of the case — Mississippi legislature passed a bill banning abortion after 15 weeks — and in addressing former decision Roe v. Wade (1973) which deals with a total ban on abortion in Texas.
Now, this gets complicated because the justices themselves do not have definitive expertise in reproductive rights sciences, more so they have tendencies to rule a certain way in these cases. Justices who lean democrat, or blue, with their decisions tend to vote against restrictions on female reproductive health, and vice versa for justices who lean republican, or red, naturally.
While these voting patterns align with partisan values of their coordinating parties, it makes sense that these beliefs would influence their opinions. At what point should partisan beliefs be acceptable for overlooking scientific evidence and expert voices is a question long debated, which spawns the concepts of judicial activism and restraint.
Judicial activism is a practice where consciously, or unconsciously, justices make constitutional interpretations in a pragmatic way, meaning that they rule based on ideology, partisan beliefs or in light of consequences the case could have. The consequence of this is the court being seen as flimsy and unreliable for constantly overturning itself and making new decisions based on the sitting justices personal beliefs.
In overturning Roe’s by using the method of judicial activism, the court discards a roughly fifty year old precedent. The court failed to follow the principle of stare decisis, or to let the ruling stand, an invaluable principle to ensuring the court’s reliability in the long term.
While in this case judicial activism is used to revoke rights, it has also applied to invoke rights, as in Brown v. Board of Education (1954), where Justice Warren ruled segregation in schools unconstitutional. This required activism as it considered modern implications of legislation to synthesize an interpretation that was more equitable and fair. The central difference between the use of activism in Brown and Dobbs is that Justice Warren in Brown combined constitutional interpretation with modern consequences whereas Justice Alito in Dobbs relied upon personal ideology to overturn landmark precedent.
The alternative method, judicial restraint, is a practice where justices interpret situations strictly based on their interpretation of the constitution. This requires specific interpretation of clauses and text, which in itself requires different modalities of interpretation; these can be based on the intent of the founders, the meaning of the text in modern day or interpretation of the text in olden times. While these methodologies spark further debates about what is right, this practice as a whole is much less vulnerable to constantly changing interpretations.
These two interpretation methods encompass the grave reality of the court today. The problem at hand is not the balance of the court, but rather the methodology the justices practice themselves. While judicial activism presents opportunities for constantly changing legislation and flimsy reasoning, restraintism ensures that the founder’s intended functionality of the court remains intact, fairly and accurately. While historically activism may have been used appropriately in times of extreme measures, the court today should revert to judicial restraint due to their misuse of activism.
Works Cited
Epstein, Lee, et al. Constitutional Law for a Changing America. CQ Press, 2005.
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