5. Judicial Activism and Restraint

About this Lecture

Lecture

In this module, we think about the concepts of judicial activism, judicial restraint, originalism and living constitutionalism, and how each plays a role in shaping Supreme Court justices’ decisions. In particular we focus on (i) Alexander Hamilton’s argument with Thomas Jefferson over his proposal to found a national bank, and the concepts of strict constructionism (Jefferson) and loose constructionism (Hamilton); (ii) the concepts of judicial activism and judicial restraint, and their relation (if any) to political liberalism and conservatism; (iii) Bickel’s concept of “the counter-majoritarian difficulty”: to what extent is it acceptable in a democracy for unelected judges to strike down laws created by an elected legislature?; (iv) the importance of the Fourth Footnote in United States v. Carolene Products Company (1938) in the growth of judicial activism; (v) the concepts of originalism, original intent, original public meaning, and living constitutionalism; and (vi) the usefulness of the majority and dissenting opinions in District of Columbia v. Heller (2008) in outlining the originalist and living constitutionalist positions.

Course

In this course, Dr Emma Long (University of East Anglia) provides an introduction to the Supreme Court of the United States. In the first module, we think about what the Supreme Court is, when it was set up, and how it works. After that, in the second module, we think about what kinds of cases make it to the Supreme Court and how they are processed once they get there. In the third module, we think about the Supreme Court justices themselves, before turning in the fourth module to consider three theories of judicial decision-making: the legal model, the attitudinal model, and rational choice theory. In the fifth module, we think about the role of the judiciary in relation to the legislature, focusing on the concepts of judicial activism and restraint, originalism and living constitutionalism.

Lecturer

Dr Emma Long is Senior Lecturer in American Studies at the University of East Anglia. Her research interests focus on the history of the US Constitution and the Supreme Court. Although interested in all aspects of this history, her particular focus is on the period since 1945 and on the rights contained in the Bill of Rights. Emma also has an interest in the interaction of religion and politics in American history, particularly issues related to the idea of the “separation of church and state” that emerge from the First Amendment.