Paper Summary:

The paper discusses how judicial activism is necessary because some issues are too difficult for the political branches of the government to confront. It examines how advocates of the opposing theory of "judicial restraint" hold that the judiciary should follow precedent carefully and defer to legislative decisions. It also analyzes the reasons the system of governmental checks and balances and judicial review was set up.

From the Paper:

"Another important principle implicit in the Framers' writings and actions was that no branch of the government is infallible and this must be seen to apply to the majority of voters, whose will is expressed through their elected representatives, as much as it applies to the un-kingly presidency and the nonpartisan judiciary. Thus the will of the majority in various states was that schools be segregated by race and the rules of these localities codified this expressed wish of the majority which resulted in a status quo in which white and black children were educated separately and, according to advocates of the system, equally. Strict adherence to the will of the majority and to the right of states to decide their own course of action would have meant that the Supreme Court could only decide in Brown v. Board of Education (1954) that the majority's wishes must be respected. The decision to order desegregation, however, was based on no explicit Constitutional basis but on the finding that "government-supported racial discrimination violates the principle of equal justice under the law" (Patterson 425). Although this was widely perceived as a case in which the Constitutional principle could not be denied it should also be understood as a textbook case of the need for judicial review and the invalidating of laws that are unconstitutional."

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