What are the theoretical (political) views toward judicial review?

• Judicial Restraint is the political view courts should refrain from issuing opinions that expand or change the nature of an existing law unless absolutely necessary. 
• Judicial Activism is the political view that courts are best positioned to develop law through the interpretation of statutes in light of the US or State Constitutions and current public sentiment.

What is Judicial Restraint and Judicial Activism?

As previously discussed, appellate courts have the power of judicial review. This includes the power to review laws passed by the legislative body or actions by the executive and to declare them to be unconstitutional and void. 

Two primary views exist regarding the role of the judiciary in executing its authority:

What is Judicial Restraint? 

Proponents of judicial restraint believe that the judiciary's power of review should not be used except in unusual cases. 

They specifically believe that a review of laws that has the effect of expanding or limiting the understanding of constitutional rights is too important to be decided by courts unless absolutely necessary. 

As such, any case that requires analysis and interpretation as to the extent of rights afforded under the Constitution is to be avoided if there is another legal basis for a decision. 

Proponents of judicial restraint also believe that litigation is not the appropriate technique for bringing about social, political, and economic change. 

That is, the social, political, and economic change should only result from the passage of laws by the legislative branch of the federal or state government.

What is Judicial Activism? 

Proponents of judicial activism support the use of the judiciary's power of review. 

They believe that judicial interpretation of laws is the appropriate vehicle for developing legal standards and should be used whenever justified by the needs of society or public sentiment. 

Proponents of judicial activism also believe that constitutional issues must be decided within the context of contemporary society. 

They adopt the view that the meaning of the Constitution is relative to the collective beliefs, sentiments, and values of society at the time in which the law is being interpreted.

These views of the role of appellate courts have become largely a political issue. 

Related Concepts

• What is Included in the US Constitution?
• What is the Commerce Clause?
• What is the Taxing and Spending Power?
• Standards for Constitutionality of Laws
• Minimum Rationality
• Strict Scrutiny
• Intermediate Scrutiny (Quasi-Strict Scrutiny)