Final answer:
The federal judiciary is considered a passive and reactive branch because it does not initiate legislation and only responds to cases brought before it, interpreting laws with a preference for judicial restraint. Over time, the judiciary has become a more significant interpreter of the Constitution, and the debate between judicial restraint and judicial activism concerns the scope and separation of powers.
Step-by-step explanation:
When we say "the federal judiciary is a passive and reactive branch", we are referring to the nature of the judicial system set forth by the United States Constitution, which was structured intentionally by the Framers to limit its power. The judiciary is seen as passive because it does not initiate legislation or executive actions;
it relies on cases brought before it to exercise judicial review. This branch is reactive as it responds to these cases by interpreting and applying the law, often using judicial restraint, a principle advocating that the courts should respect the roles of the legislative and executive branches, in order to maintain democratic governance and avoid judicial activism.
Judicial restraint is a philosophy where judges avoid making public policy and interpret federal laws with deference to the legislative intent, upholding traditional practices and precedent. In contrast, judicial activism involves judges
substituting their policy views and possibly striking down laws or decisions based on their interpretation of the Constitution. Critics argue this oversteps the boundaries intended for the judiciary and risks undermining the separation of powers.
In Federalist No. 78, Alexander Hamilton described the judiciary as "the least dangerous" branch due to its lack of force and will, highlighting that it operates primarily on judgment.
Over time, while remaining a branch that is principally passive and reactive, the judiciary's role in government has grown and become central to the interpretation of the Constitution. Critics voice concerns that an activist judiciary may exert power beyond its purview, thereby potentially challenging the rule of law and democratic principles.