Do the Courts have too much power to make policy from the bench

Proponents of judicial restraint argue that policy decisions should primarily be made by the politically accountable legislative branch.

Democratic Legitimacy: Legislatures are composed of elected representatives who are directly responsive to the will of the majority. Unelected judges, who serve for life (in the federal system), are not accountable to the public. Judicial policy-making, therefore, risks "undermining democratic processes" and is seen as "contrary to democratic principles" (Result 2.2, 2.1).

Competence and Resources: Legislators have committees, staff, and the power to hold hearings to gather facts, conduct research, and formulate complex public policy. Critics argue that judges are "ill-equipped to make sound public policy decisions" (Result 2.2).

Stability of Law: Judicial restraint, which often emphasizes stare decisis (respecting precedent), "promotes stability and predictability in law" and "prevents judicial overreach" (Result 2.4).

Example from the Text (Hypothetical Restraint): Under a philosophy of restraint, the Supreme Court in the 1930s was criticized for initially using "substantive due process" to strike down social and economic planning legislation from the New Deal, arguing the legislature was overstepping its authority (Result 4.5). The later reversal by the "New Court" and the development of a "general presumption of constitutionality in favor of enactments of the National Legislature" (Result 4.5) demonstrates a shift toward judicial restraint in economic matters.

Sample Answer

The question of whether courts have too much power to make policy from the bench is a central and perennial debate in American law and politics, revolving around the concepts of judicial activism and judicial restraint. There are strong arguments for and against the judiciary's role in controversial policy issues.

The Role of Courts in Policy-Making: Judicial Activism vs. Judicial Restraint

The core of this debate lies in the separation of powers doctrine, which grants legislative (lawmaking) power to the elected legislature (Congress or state assemblies) and judicial (law-interpreting) power to the courts.

1. Argument for Legislative Dominance (Judicial Restraint)

Proponents of judicial restraint argue that policy decisions should primarily be made by the politically accountable legislative branch.