FREE ESSAY ON SUPREME COURT

SUPREME COURT

Restraint & Activism
Judicial activism is loosely defined as decisions or judgements handed down by judges
that take a broad interpretation of the constitution. It is a decision that is more of a
reflection of how the judge thinks the law should be interpreted rather than how the law
has or was intended to be interpreted. There are many examples of judicial activism;
examples include the opinions of Sandra Day O'Connor in the Lynch v. Donnelly and the
Wallace v. Jaffree trials. Sandra Day argues for the changing of the First Amendment's
ban on "establishment" of religion into a ban on "endorsement" of religion. Others
include US v. Kinder where our congress passed legislation that would require a minimum
sentence for persons caught distributing more than 10 grams of cocaine. Judge Leval used
a weighing method suggested by the sentencing commission rather than the method required
by congress. The different method used did not trigger the mandatory sentence whereas the
congressional method would have. 
Miranda v. Arizona is a very important activist decision that required police to inform
criminal suspects of their rights before they could be interrogated. These rights
include: the right to remain silent, that anything you say can and will be used against
you in a court of law, you have a right to an attorney, if you cannot afford an attorney
one will be appointed to you be the court. In this case the Fifth Amendment's right that
a person may not be forced to incriminate one's self was interpreted in an activist way
as meaning that one must be aware of this right before on is interrogated by the police.
Prior to this ruling it was common practice to force and coerce confessions from criminal
suspects who did not know they had the right not to incriminate themselves. 
Judicial restraint is loosely defined as decisions or judgements that take a narrow
interpretation of the constitution. It reflects a respect for the law as it has been
enacted by the Legislature. Rather than creating new laws from broad interpretations. For
myself, it is somewhat harder to distinguish what judicial restraint is. An example of
judicial restraint would be the 1996 case of Bowers v. Hardwick. Hardwick was charged
with violating the Georgia statute of sodomy by committing a sexual act with another male
in the bedroom of his home. He challenged his conviction in the Supreme Court. The key
issues were that Supreme Court upheld his conviction stating that the Constitution does
not give the right for homosexuals to engage in sodomy. The justices also felt that
"there should be great resistance to expand the reach of the due process clauses to cover
any new fundamental rights". Whereas the Roe v. Wade decision stated that women have the
right to privacy when in the constitution no right exist, the Bowers v. Hardwick decision
stated that there is no part of the constitution that gives the right of sodomy by
homosexuals.