AP Syllabus focus:
‘Debates about the Supreme Court’s power often focus on judicial review. Activism supports overturning precedent or invalidating laws, while restraint argues decisions should adhere to existing constitutional and case precedent.’
Judicial activism and judicial restraint are competing approaches to how aggressively courts should use judicial review. They shape when judges invalidate laws, how they treat precedent, and how courts balance constitutional enforcement with democratic governance.
The core debate: how assertive should courts be?
At the centre of the debate is whether unelected, life-tenured judges should frequently override decisions made by elected branches, or intervene only when constitutional violations are clear and unavoidable.
This flow chart depicts how each branch can check the others, including the judiciary’s power to declare laws unconstitutional through judicial review. Visually mapping checks and balances makes it easier to see why activism vs. restraint is fundamentally a debate about the frequency and scope of judicial interference with elected-branch policymaking. It also situates judicial review within the broader separation-of-powers design. Source
Judicial review as the tool being debated
Judicial review is the judiciary’s power to decide whether laws or executive actions are constitutional; activism and restraint are contrasting philosophies about when and how to use that power.
This image shows an original Marbury v. Madison document associated with the Supreme Court’s early exercise of judicial review. Using a primary source helps connect the concept of judicial review to its historical origin and to the Court’s role in checking the elected branches. It also underscores why later debates about activism and restraint often revolve around when the Court should use this power. Source
Defining the two approaches
Judicial activism and judicial restraint are best understood as tendencies (not rigid labels). The same justice may act “activist” in one area and “restrained” in another, depending on the legal question and the majority coalition.
Judicial activism: A judicial approach that is more willing to invalidate laws, expand or reinterpret constitutional meaning, or overturn precedent in order to enforce constitutional principles.
Judicial activism is often associated with courts taking a strong role in protecting rights or correcting perceived failures in the political process.
Judicial restraint: A judicial approach that emphasises deference to elected branches and generally follows existing constitutional and case precedent, limiting invalidation of laws unless a conflict with the Constitution is clear
A restrained court is more likely to uphold legislation where reasonable constitutional arguments exist for doing so.
Activism: overturning precedent or invalidating laws
Key features
Greater willingness to strike down state or federal laws as unconstitutional
Greater openness to overruling prior decisions when the Court believes precedent was wrongly decided
More acceptance of broader constitutional interpretations to address modern conditions
How activism connects to precedent
Activism is closely linked to when the Court departs from stare decisis (the general practice of following prior rulings). In the syllabus language, activism “supports overturning precedent or invalidating laws,” especially when the majority believes constitutional meaning or justice requires change.
Restraint: adhering to constitutional and case precedent
Key features
Strong emphasis on stability, predictability, and continuity in constitutional law
Preference for narrow rulings that resolve the dispute without making sweeping doctrine
Deference to legislatures and executives as the primary policymaking institutions
How restraint connects to precedent
In the syllabus language, restraint argues decisions should adhere to “existing constitutional and case precedent.” This approach treats precedent as a major constraint on judicial power, limiting abrupt shifts in legal rules unless the Court sees an especially strong justification.
What’s at stake: democratic accountability vs constitutional limits
Arguments commonly used to support activism
Courts may need to act when political majorities undermine minority rights.
Constitutional protections can be ineffective without robust enforcement through judicial review.
Precedent should not bind the Court to outcomes viewed as constitutionally incorrect.
Arguments commonly used to support restraint
Frequent invalidation of laws can weaken democratic self-government.
Stability in law supports legitimacy and consistent application across cases.
Elected branches are better positioned to weigh policy trade-offs and represent public preferences.
How to describe a decision using the activism–restraint framework
When evaluating a ruling through this lens, focus on the Court’s treatment of:
Precedent: Did the Court follow or overrule prior decisions?
Deference: Did it defer to the elected branches or substitute judicial judgment?
Scope: Was the reasoning narrow and case-specific, or broad with wider implications?
Use of judicial review: How readily did the Court invalidate a law or government action?
FAQ
No. Activism describes willingness to invalidate laws or overrule precedent, not ideological direction.
Conservative and liberal majorities can both act “activist” depending on the issue and the precedent being challenged.
Common considerations include:
whether the precedent is unworkable in practice
whether legal reasoning has been undermined by later doctrine
reliance interests (how much society has depended on the old rule)
Narrow rulings tend to align with restraint because they minimise wider disruption.
Broad rulings can resemble activism when they announce expansive principles that reshape law beyond the immediate dispute.
They are not the same. Originalism is a method for interpreting meaning; restraint is about how readily to strike down laws and whether to adhere to precedent.
An originalist can be either restrained or activist.
Dissents can preserve alternative reasoning, critique precedent, and provide a roadmap for later majorities.
Over time, a dissent’s logic may become the basis for overruling a precedent or limiting it incrementally.
Practice Questions
(2 marks) Describe one difference between judicial activism and judicial restraint.
1 mark: Defines or accurately characterises judicial activism (e.g., willingness to invalidate laws/overturn precedent).
1 mark: Defines or accurately characterises judicial restraint (e.g., adherence to precedent/deference to elected branches).
(5 marks) Explain how debates over precedent relate to judicial activism and judicial restraint, and evaluate one democratic argument for judicial restraint.
1 mark: Links activism to overruling precedent and/or more frequent invalidation of laws.
1 mark: Links restraint to adhering to constitutional and case precedent.
1 mark: Explains why precedent matters (e.g., stability, predictability, legitimacy, limits on judicial power).
1 mark: Identifies one democratic argument for restraint (e.g., elected branches as primary policymakers; accountability).
1 mark: Evaluates that argument with a developed point (e.g., restraint may permit majoritarian infringement of rights; or promotes democratic legitimacy).
