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The question of whether judges should overrule the legislature, the executive, or the will of the people, also known as judicial activism, or whether they should follow the wishes of these branches of government, also known as judicial restraint, is a complex and contentious issue in the United States.
One argument in favor of judicial activism is that the principle of judicial review, established in the landmark case of Marbury v. Madison, gives the judiciary the power to interpret the constitution and ensure that the other branches of government act within its bounds. This means that judges have the power to overrule laws or actions by the legislature or executive that they believe are unconstitutional. This can be seen as a check on the power of the other branches of government and a way to protect the rights and liberties of the people.
However, there are also arguments against judicial activism. One of the main arguments is that the other branches of government have mechanisms in place to restrain the power of the judiciary. For example, the legislature can impeach judges and the executive can appoint judges with a particular judicial philosophy. Additionally, the will of the people can be expressed through elections, where voters can choose representatives who share their views on the role of the judiciary.
Another argument against judicial activism is that it can be seen as an encroachment on the power of the other branches of government and the will of the people. The judiciary is an unelected branch of government, and some argue that it is not appropriate for unelected judges to have the power to overrule the decisions of the elected branches. Additionally, judicial activism can be seen as a form of judicial overreach, where judges are making decisions that are outside of their purview and should be made by the other branches of government or the people.
There are different judicial philosophies that inform the debate over judicial activism and restraint. For example, judicial conservatives generally favor judicial restraint and believe that judges should follow the wishes of the legislature, the executive, and the people. In contrast, judicial liberals generally favor judicial activism and believe that judges should interpret the constitution and overrule laws or actions that are unconstitutional.
A recent example of this debate can be seen in the current Supreme Court term, where the Court is considering a case involving the Deferred Action for Childhood Arrivals (DACA) program. This program allows certain undocumented immigrants who were brought to the United States as children to remain in the country and receive work permits. The Trump administration attempted to end the program, but a lower court ruled that this was unconstitutional. The Supreme Court is now considering whether to uphold this ruling and allow the DACA program to continue, or to overturn the ruling and allow the Trump administration to end the program.
In this case, judicial activism would involve the Supreme Court interpreting the constitution and upholding the lower court's ruling that the Trump administration's attempt to end the DACA program was unconstitutional. This would be an example of the judiciary over ruling the executive branch and protecting the rights of the DACA recipients. On the other hand, judicial restraint would involve the Supreme Court deferring to the Trump administration and allowing it to end the program, which would be an example of the judiciary following the wishes of the executive branch.
In conclusion, the question of whether judges should overrule the legislature, the executive, or the will of the people, or whether they should follow the wishes of these branches of government, is a complex and contentious issue. The principle of judicial review gives judges the power to interpret the constitution and overrule laws or actions that are unconstitutional. However, the other branches of government and the will of the people can also exert influence on the judiciary and restrain its power. Different judicial philosophies inform the debate over judicial activism and restraint, and the Court's decisions can have a significant impact on the political
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