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6.4 %u2022 Judicial Decision-making and Checks%u00a0on the Judicial Branch 203who were elected. The worry is that in striking down legislation, the Court %u201cexercises control, not in behalf of the prevailing majority, but against it.%u201d69 This is precisely what President Jefferson warned about when he feared the judiciary becoming a %u201cdespotic branch.%u201d70In upholding the constitutionality of laws, the Supreme Court also exercises power over the legislative process by adding legitimacy in the minds of the American public to the laws passed by Congress.71 However, in upholding the will of the majority, the Court risks trampling on the rights of minorities, thereby giving its stamp of approval to tyranny of the majority.It is challenging to interpret and apply the Constitution. People have different ideas about the intent of the founders and what the language of the Constitution means. As James Bradley Thayer cautioned in an 1893 article, %u201cMuch which will seem unconstitutional to one man, or body of men, may reasonably not seem so to another; [and] that the constitution often admits of different interpretations.%u201d72 Justices use different philosophies in interpreting the Constitution.Theories of Constitutional Interpretation: Judicial%u00a0Restraint and Judicial ActivismTrying to figure out why justices vote the way they do on any specific case is very%u00a0 difficult given all of the factors that likely contribute to an individual justice%u2019s vote.%u00a0 There%u00a0 are%u00a0 two main theories about how justices should interpret the Constitution.Proponents of judicial restraint argue that the Court should seldom use the power of judicial review and should defer to the judgment of the legislative and executive branches whenever possible. First, proponents of judicial restraint point to the dangers of going against majority rule and to the potential undemocratic consequences of unelected justices overturning the actions of elected representatives. Further, judges should adhere to the Constitution and to case precedent. Declaring a law unconstitutional is more authoritative if the Supreme Court uses this power sparingly. Finally, justices are legal and constitutional specialists; they are not policy specialists, and they don%u2019t have to implement their decisions. Public policies may involve complex technical questions, the details of which justices may not fully understand. Proponents of judicial restraint argue that justices should narrowly tailor their decisions to focus on the constitutionality of laws and that they should avoid proposing solutions to problems. These critics argue that justices should defer to the legislative and executive branches in designing policies.Proponents of judicial activism, on the other hand, argue that justices should be willing to overturn laws when necessary, sometimes creating bold new policy. The other two branches may make mistakes, or worse, trample on individual rights and liberties. The power to strike down the will of the majority gives the Court the power to protect the rights of minorities, especially unpopular groups that may not have support in the other branches of government. Sometimes, elected officials act in ways that damage rights and liberties. Sometimes, the elected branches do not act at all. Supreme Court justices can decide issues that Congress and the president are unwilling to tackle, because justices are unelected and serve for life and therefore don%u2019t have to be as concerned about their popularity with the public.Judicial activism and judicial restraint are not linked to political liberalism or conservatism. During the 1960s, an activist and liberal Court used the power of judicial judicial restrainta philosophy of constitutional interpretation that justices should be cautious in overturning laws and should adhere to the Constitution and previous precedent.judicial activisma philosophy of constitutional interpretation that justices should wield the power of judicial review, sometimes creating bold new policies.%u00a9 Bedford, Freeman & Worth Publishers. For review purposes only. Do not distribute.