Do the Courts have too much power to make policy from the bench

Sample Answer

The question of whether courts have too much power to make policy from the bench is a central and controversial debate in constitutional law, revolving around the concept of judicial activism versus judicial restraint. There is no consensus, as critics argue judicial policy-making usurps the legislative branch's role, while supporters argue it is a necessary check to protect constitutional rights and minorities.

The Debate Over Judicial Policy-Making

The power of courts to strike down or interpret laws in ways that establish broad policy is known as judicial review. When judges allow their personal views or broader social policy implications to guide their decisions, it is often termed judicial activism (2.2). When judges strictly adhere to the text of the law, precedent (stare decisis), and limit their role, it is called judicial restraint (2.1).

Arguments Against Judicial Policy-Making (Judicial Activism)

Critics of "policy-making from the bench" argue that it is an abuse of power that undermines democracy:

Undermines Democracy and Separation of Powers: Judges are unelected and have lifetime appointments, meaning they are not accountable to the people like legislators are (2.1). Policy-making by unelected officials is seen as an anti-majoritarian act that risks upsetting the balance of power between the legislative, executive, and judicial branches (2.1, 2.3).

Lack of Expertise: Judges are trained in law, not in economics, social sciences, or administration, making them ill-equipped to design and implement sound public policy (2.1).

Legal Legitimacy: Rulings based on personal policy views rather than a strict interpretation of law or precedent can make the court look like a political body in robes, diminishing its role as a neutral arbiter and damaging the rule of law (1.5, 2.1).

Arguments For Judicial Policy-Making (Judicial Activism)

Proponents argue that an active judiciary is essential for a just society:

Protecting Minority Rights: The legislative branch, by its nature, represents the will of the majority. Courts can serve as a vital anti-majoritarian check to protect the rights of political minorities who cannot get relief from the elected branches (2.1, 2.4).

Addressing Social Injustices: An activist approach can allow the Constitution to adapt to modern contexts ("living Constitution"), addressing deeply rooted social injustices that the legislature has failed to correct (2.3).

Constitutional Supremacy: In systems like the United States, the courts are the final arbiters of the Constitution. When a legislative act violates the Constitution, the court's primary duty is to uphold the supreme law of the land, which inherently involves a policy-setting effect (1.2, 4.1).