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Judicial advocacy is a technique for justifying particular judicial decisions or a strategy for practicing judicial review, whereby a judge is usually perceived to be more likely to settle constitutional problems as well as to reverse administrative or legislative decisions. In defining an ideology or judicial judgment, judicial activism is often used and, because it has many definitions, its usage may create confusion. The topic of judicial activism is closely related to power separation, legislative construction, and constitutional interpretation. In order to reach a decision which determines justice is served, the judicial system applies facts of every case to the existing laws although the U.S Constitution does not authorize. There has been a controversy as to whether judges should interpret or simply apply the Constitution.
Judges should interpret the Constitution
The U.S Constitution is a judiciously composed document intended to be responsible for a national government, sufficiently flexible and strong to protect guaranteed rights of citizens and meet the needs of the country. A continuous democratic government is provided for in the Constitution. Gilligan (2014) argues that Constitutional interpretation is left out to the reasoned judgement of independent judges as the practice of judicial review should ensure the will of the whole people is supreme over the will of a legislature as expressed in their constitution rather than to the conflict and tumult of the political process. The Constitution was wisely worded by the Founding Fathers of the nation in rather wide-ranging terms leaving it open to imminent amplification to meet varying situations. By the very nature of the Constitution it is evident that the constitutional application and interpretation permits a balance between individual’s right to freedom and the society’s need for order. For example, in Obergefell v. Hodges case, the Supreme Court issued a decision that even supporters of the ruling described as poorly reasoned and unintelligible when in recognizing a constitutional right to marriage which comprises same-sex couples (Yoshimo 2015). In the ruling, I think same-sex marriage should be defined with specificity, rather than being analysed at a more general level of abstraction. The judges to the Supreme Court in my opinion will uphold same-sex marriage to protect the right grounded in tradition. Judges are required to interpret lesser laws and the Constitution and not to either add or subtract it.
Judges should not apply the Constitution
When it comes to moral issues about rights, debates on judicial authority sometimes turn to the question whether the skills of the judges are superior. Judges are required to address and adopt questing concerning rights in a specific legalistic manner in the institutional setting in which the act. Judges are, therefore, inept and it is harder for them to identify and address essential moral questions about rights. Gilligan records that courts through legislative approaches should address moral issues in the name of the whole society (2014). Therefore, judges should not apply the Constitution but rather look at the impact the ruling will have to the entire society. Further, judges should not apply the Constitution as there is absence of consideration of current words, determinations and fundamental values which are suitable. This is congruent with what Gilligan (2014) connotes that the Constitution is often contradictory, lacking, as well as susceptible to multiple interpretation. For instance, in Los Angeles County v. Mendez case (National Constitution Centre 2017) which discredits police officers’ legal immunity for the use of “excessive force”, I think the Supreme Court should uphold the ruling adopted by the federal appeals court taking into consideration that two homeless people were shot. Although one can predict the decisions of case on the Supreme Court, the idea that no case is prejudged is true because they are only speculations and the systems cannot be flaunted. In addition, the judicially is independent and judges are impartial arbiters.
10 Supreme Court cases to watch in 2017 - National Constitution Center. (2017). National Constitution Center – constitutioncenter.org. Retrieved 31 July 2017, from https://constitutioncenter.org/blog/supreme-court-cases-to-watch-in-2017/
Gilligan, G. (2014). Whistleblowing protections and judicial activism in the US Supreme Court. Law and Financial Markets Review, 8(1), 4-7.
Yoshimo, K. (2015). A New Birth of Freedom?: Obergefell v. Hodges. Harv. L. Rev., 129, 147.
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