Judicial Review

AP Government Term Paper
In the 1920’s a heightened suspicion of communist activities on domestic American land arose, the Red Scare. Benjamin Gitlow, a prominent member of the Socialist party, was arrested and convicted on charges of violating the New York Criminal Anarchy Law of 1902 during these drastic times. What was his violation? The publication and circulation of the Left-Wing Manifesto, a mere pamphlet, in the United States was his infringement. He appealed the decision on the basis that it violated his First Amendment rights of freedom of speech and press and it was passed on to the United States Supreme Court. The court ruled 7-2 in favor of Gitlow on the basis of Section 1 of the Fourteenth amendment to the United States Constitution states, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Gitlow v. New York exemplifies the protection of civil right and liberties with judicial activism.

When the rights of the American citizen are on the line than the judiciary should utilize the powers invested in them to protect and enforce what is constitutional. However, in times of controversy, where personal preference or aspects of religious or personal nature are at hand, the judiciary should exercise their power with finesse, thereby acting out judicial restraint. An example of such is in the case of Engel v. Vitale where Mr. Justice Black delivered the opinion of the court directing the School District’s principal to read a prayer at the commencement of each school day. In cases that do not regard whether an action is constitutional or not, the judiciary should suppress their power of judicial review. The famous Brown v. Board of Education of Topeka can be used to illustrate when judicial review should be implemented to aid one or a faction in actions that are unconstitutional. In the town of Topeka, Kansas a black third-grader was forced to walk one mile through a switchyard in order to get to her black elementary school, although a white elementary school was only a few blocks away. Her parents attempted to enroll her into the white school but were repeatedly denied. The Brown v. Board of Education case was tried on behalf of the black minority that was the target of racial segregation in public schools. When civil rights are at risk, the Supreme Court’s power of judicial review should be set into motion; this is the time for judicial activism. In 1951, the parents of twenty children filed a law suit against the Board of Education demanding that the school district revoke its policy on racial segregation. When brought to the District Court, they ruled in favor of the Board of Education, citing the Plessy v. Ferguson case as a precedent for the unreal perception that things can be separate but remain equal. Prior to the case, three-judge District Courts found that segregation in education was devastating to the educations of Negro children, but even so, they somehow were able to see that Negro and white schools in Topeka were still equivalent in quality. Utilizing the powers invested by the Constitution into the Supreme Court, they proceeded to review this case, combined with numerous other cases of school segregation in South Carolina, Delaware, and Virginia. On May 17, 1954, Chief Justice Warren announced the unanimous decision of the Court, “"We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does...We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.” Brown had won. The illusion of “separate but equal” indoctrinated by the Plessy case was diminished on the rationale that separate institution are innately disparate and it proved to be a stepping stone to cause our nation in policies regarding human rights. Although many other public accommodations remained segregated, the judicial activism seen in Brown v. Board of Education case was a necessary to protect the civil rights and well-being of the citizen from unjust rule.

Conversely, at times of controversy regarding the combination of religion and education and personal opinion or prefrence, the judiciary should exercise judicial restraint. Judicial restraint should be used whenever possible to respect other political authorities and recognize their institutional limitations. For example, the Engel v. Vitale case of 1962 brought by the parents of students at the Herricks High School was a controversial case that directed the School District’s principal to cause the following prayer to be read aloud by teachers at the beginning of each day. “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.” The suit filed in a New York state court insisted that official prayer in public schools should be banned and was one of the most important cases in our country’s separation of church and state.

The opening 22-word prayer in question was argued to violate the first amendment right which states, “Congress shall make no law respecting an establishment of religion." The court ruled the prayer as an unconstitutional violation of the Establishment Clause in a deciding vote of 6-1, with Justice White and Justice Frankfurter not participating. Justice Hugo Black provided the opinion and rationale of the court’s findings: “We think that by using its public school system to encourage recitation of the Regents' Prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York's program of daily classroom invocation of God's blessings…in the Regents' Prayer is a religious activity…”

In the history of the Supreme Court, the Warren Court is synonymous with judicial activism. However, it should be understood that the cases that were subject to the Warren Court’s judicial review were those in deep controversy, regarding subjects such as voting, criminal procedure, free speech, freedom of religion, privacy, and cruel and unusual punishment and were ruled to the benefit of those in need of protection of their civil rights. In order to determine whether the Warren Court overstepped its constitutional bounds, you will have to further scrutinize the cases tried and the acts of Congress that were invalidated by judicial review.

The Warren Court may initially appear to be a one that oversteps its judicial bounds and proceeds in an era of utter judicial activism but that notion should be challenged as the Warren Court only invalidated 17 acts of Congress as compared to the Rehnquist Court who struck down 33 acts. In addition, many significant court decisions were tried that were essential to setting precedents, as well as defending the natural and unalienable rights of the American citizen. Although skeptics may argue that the benefactor of some of the tried cases was rapists, kidnappers, and scammers, but they too shall be tried under the direction of the Constitution in its entirety.

The Warren Court’s activism may be linked to Chief Justice Warren’s broad ethical principles and strong charisma. Chief Justice Warren’s principles were not conventional, but were of more philosophical nature which entranced his fellow court justices into near flawless consensus. Under his leadership, the United States Supreme Court underwent a process of judicial review that incurred its wrath on the executive, legislative, and even members of the Supreme Court.

In its activism, it drew negative press as it ended segregation in public schools and freed guilty criminals. Was the Warren Court stretching its judicial power and its constitutional bounds? No. The Warren Court’s cases brought forward the explicit recognition of human rights that had been overlooked or trespassed. It established values that have withstood the test of time and are still in work today to protect and guarantee the rights and liberties of citizens in America. The Court’s emphasis in abiding to the constitution shaped the philosophy of today’s criminal, educational, and social systems at work in the life of the American.

The Warren Court is viewed as an activist protector of minority rights and constitutional procedure regarding numerous topics. This court demonstrated the necessity of judicial activism through judicial review and in its impeccable analysis of cases brought upon them. Being judicially active, the Warren Court still allowed Congress to play its role as the primary protector of minority rights. It’s restraint should be noted as they recognized the importance of politics and allowed the legislative branch a significant amount of latitude in resolving issues of the time. Judicial activism is necessary and proper in defending the American citizen, and the Warren Court served as nothing more than as a protector and guard of the rights we have today.