Judicial Restraint: The Supreme Court

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Judicial Restraint 1. Roche states that it is naïve to assert that the Supreme Court is limited by the Constitution because the Constitution is ambiguous at key points. The Supreme Court has enormous policy-making functions, and federal judges have the full ability to intervene in the decision-making process. Roche argues that, in theory, judges are limited by the Constitution and the jurisdiction it regards. However, in practice, it is a lackluster judge who adapts the Constitution “to a necessary end”. Because key points in the Constitution are open to more than one interpretation, judges may substitute their own beliefs and views for those of past generations or of the current Congress and President. 2. The judiciary has not been limited very much as the result of political demands to curb judicial discretion. Because the Court exercises great…show more content…
The two major techniques of judicial self-restraint are procedural and substantive. Procedural self-restraint describes how the Court refuses to come to grips with the substantive issues of a case, and refuses to accept jurisdiction. Issuing writs of certiorari by their own means and delays are other examples of procedural self-restraint. Roche cites the example of United States Supreme Court Rule 38, which states that discretionary review will be granted only “where there are special and important reasons therefor.” Roche, using articles written by Professor Fowler Harper as a basis, argues that the Court has used this rule to avoid significant, yet controversial, issues. Since 1949, the Court has refused to review key cases involving civil liberties issues on which their merits warranted their judgments. The Supreme Court can also issue writs of certiorari, which Rule 38 governs, on its own terms, such as in Dennis v. United States, where the Court avoided the basic problem at hand, limiting its review to two narrow constitutional issues. Judges procrastinate accepting jurisdiction by avoid the key matters at

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