Judicial Philosophy
INTRODUCTION
Judicial
philosophy is the lens through which judges perceive and apply the law. Even
while laws are generally applicable, they must be used in specific instances
where there are special circumstances. Judges interpret the law in order to
accomplish this, figuring out its aim and occasionally its meaning.
Some judges
adopt an activist stance, utilising the courtroom to bring about social and
political change. Some judges follow a restraint-based philosophy, holding that
rather than trying to pass new legislation, judges should interpret the
existing rigidly. Furthermore, every judge develops their own ways of reading
the Constitution based on their own personal ideologies. There are several
political and judicial ideologies that tend to align. Generally speaking, but
not universally, stringent constructionists support judicial restraint. The
idea of original intent is likewise adhered to by many supporters of judicial
restraint. But there are times when these perspectives don't coincide. As a
result, judicial philosophies differ from political ideologies in this regard.
Judiciary
activity versus judicial restraint, loose constructionism versus rigorous
constructionism, and living document versus original intent are the three
primary categories of divergent judicial ideologies.
- JUDICIAL ACTIVISM VS. JUDICIAL RESTRAINT
Judicial Restraint
A philosophy
of interpretation used by the judiciary is judicial restraint. It is an idea
that suggests judges should restrain the use of their authority by abstaining
from influencing the outcome or the course of the proceedings with their
personal preferences and viewpoints in favour of adhering to statutory and
constitutional requirements. It asserts that judges should hold off on
overturning legislation unless they are clearly unlawful. The legal
professionals who favour judicial restraint contend that since judges lack the
authority to make policy, they must rely on legislative purpose, stare decisis,
and a rigid application of judicial interpretation.
According to
this procedural rule, judges must provide significant deference in cases
involving constitutional questions and only overturn their decisions where
there has been a clear violation of fundamental constitutional principles. In
order to encourage the adoption of fresh ideas and policies, the courts should
restrict the concept of judicial review. The judiciary must therefore
concentrate on the following factors:
●
The purpose of the Constitution's framers
●
Precedents
●
not engage in shaping policies
In the State
of Rajasthan v. Union of India case from 1977, which set a precedent
for judicial restraint, the court opted not to investigate the case because it
entailed political investigation. In S.R. Bommai v. Union of India, the
Supreme Court further ruled that because the case involved a political
investigation, the courts should not become involved. According to Justice
Ahmadi, it is difficult to develop judicially sound norms to scrutinise
political choices, and if courts did so, they would be entering the political
fray and analysing political expertise, which they must avoid doing.
Judicial Activism
Contrary to
judicial restraint, which holds that judges should interpret the law in light
of how society is changing, judicial activism holds that judges should act in
accordance with the law. The Black's Law Dictionary defines judicial activism
as a judicial philosophy that encourages judges to deviate from established
precedents in favour of progressive and novel social policies. With the
authority granted by the Constitution, the judiciary rules to address such
public complaints when the executive branch does not make judgments that are in
the best interests of the general public. As a result, the idea of judicial activism emerged,
emphasising social welfare. Sometimes judges will interpret the law in a way
that is more in line with current views than those that were developed during
the Constitution's construction. Decisions are made by judicial activists by
using their own free will in the cases and addressing legal difficulties while
keeping in mind the social requirements of the time.
Supporters
of this idea contend that as values and circumstances change along with
society, the law should be applied in conformity with current values and
circumstances. Therefore, the judgments must also account for these
modifications. When the other branches of the government fail to act as
expected, the courts should use their authority to right the wrong.
The Supreme
Court recited "the procedure established by law" into Article 21 of the Constitution,
repositioning it as "due process of law," or the procedure that
ensures justice, equity, and good conscience, in the landmark decision of Maneka
Gandhi v. Union of India. This is a great example of judicial activism.
Another instance of judicial activism by the court may be seen in the Second
Judges Case, also known as Advocate on Record v. Union of India,
and the definitions of "concurrence" and "consultation"
under Article 124 of the Constitution.
- LOOSE CONSTRUCTIONISM VS STRICT CONSTRUCTIONISM
Strict Constructionist (Originalism)
A judge who
adheres to a rigid, literal, or conservative interpretation of the constitution
and who frequently emphasises the need for state governments to maintain as
much control as feasible (tends to be conservative)
•
Advantages:
- Judges' job is to interpret the
constitution, not to make decisions "from the bench" (e.g., in
Roe v wade 1973 they essentially made policy, which is not their role)
- If it is determined that
originalism has a harmful impact on society, the constitution may be
modified (e.g., income tax ban was overturned by Congress passing the 13th
amendment)
- It is not appropriate to read
anything other than what the passages explicitly express into many of the
constitution's provisions because they are straightforward and easy to
understand (outlines clearly that President is commander-in-chief)
- Originality offers consistency (right to bear arms
specifically outlined, applied in DC vs Heller 2008).
Loose Constructionist
A judge who
likes to emphasise the vast powers granted to the federal government and who
has a loose, liberal interpretation of the constitution (tends to be liberal)
•
Advantages:
- Conservatives claim originalism
as a justification for pursuing an ideological agenda; in reality, they
are just as activist as any judge (citizens united case interpreted
freedom of expression to mean corporations could give large amounts of
money)
- The constitution is
intentionally broad and ambiguous so that it might evolve throughout time
(Obergefell v Hodges 2015 says it allowed for same sex marriage)
- Judges must provide
"interpretive amendments" since the amendment mechanism is
ineffective and defective (Roe v Wade Congress was too partisan so SCOTUS
had to decide)
- Originalists demonstrate their
ambiguity by shifting their interpretations of what the Founders intended
(Stanford v Kentucky ruled you can execute 16 years olds, but was
overturned by Roper v Simons)
- Because of the restrictions
imposed, the court will never become overly politicised (e.g., Pollock v
farmers loan and trust co 1895 where income tax was ruled unconstitutional
but that was overturned by Congress passing the 13th amendment)
- LIVING DOCUMENT VS ORIGINAL INTENT
Our
Constitution is the subject of two opposing schools of thought. and
"Original Intent," respectively. In order to trick people into
thinking that our Constitution applies to their lives, the term "Living
Document" was created. The opposite is true in every way.
In fact,
they contend that the U.S. Constitution should be scrapped since it has become
dated over time. They contend that their political thought is superior to the
nation's founders'. In their deception, they have had considerable success.
In their deception, they have had
considerable success. Many people have been duped by them. When I ask someone
if they believe in the "Original Intent" or "Living
Document" theories of the Constitution, many reply that they believe in the
"Living Document" theory because they don't know what the word
"Original Intent" means or what it is supposed to achieve.
CHECKS ON THE COURTS
The power of
the judiciary branch is regulated in a number of ways by the legislative and
executive branches. Judicial Implementation, the procedure used to carry out a
court's decision, is the primary means of limiting the courts' authority. The
executive branch must carry out court orders, but if the president or governor
disapproves of the decision, he or she may choose to disregard it or just
partially carry it out. By using their financial authority, legislatures can
also restrict the courts. A Supreme Court ruling will not be enforced if
Congress declines to authorise funds for its implementation. The Constitution
may also be amended by Congress and state legislatures, who can do so in
response to a court decision.